True, we don’t have a perfect understanding of the scope of moral agency. But we didn’t have one of colors in the 1700’s, and we could still all agree that the sky was blue and the sun was orange. And it wasn’t because we all hallucinate the same, it was because the sky really was blue and the sun really was orange, we just didn’t fully appreciate what “blue” and “orange” meant.

Yes, at one time the only way to agree that something was blue was for people to look at it. And there wasn’t much we could do if someone said “it looks green to me, and I don’t believe it’s blue”. That’s where we are with moral agency now, and we just have to live it. We look at it, and report what it looks like to us. And we do our best to understand its properties.

But what we don’t do is measure how much it means to me to stop you to how much it means to you to do it. Because that’s both impossible and nonsensical — and it doesn’t matter. No matter how much you want to stop me from doing something inside the scope of my moral agency, you do not actually possess the right to do so.

Not to disparage the philosophical debate, but I am one of those pragmatists, so indulge me. Accept as a given that we prefer law to anarchy, and tell me what we’re supposed to do when my hobby is your incommensurable evil. Times 300 million.

Our understanding of moral agency is about where our understanding of color was in the 1700’s. I would have had confidence then that colors could have been put on a scientific foundation even though nobody at the time knew how to do it. And I would have rejected out of hand anyone who insisted that water looked yellow to them or that I could not prove the sky was blue. That we all agree the sky is blue is sufficient for me to conclude that it must “really be” blue, and have confidence that once “blueness” is understood this will be made rigorous. And I need have no patience with those who complain that my confidence is not amenable to debate.

The diminishing marginal utility of increased wealth just sets us back to another impossible problem — how is utility to me commensurate with utility to you? You need some fundamental moral notion of human equivalence or you need some fundamental moral notion that some people are worth more than others. If you take the former path, how will you defend it without accepting the very moral analysis pragmatists reject?

I wrote a longer post, but I’ll sum up–

1. Things that are really hard to measure are not impossible. There’s a lot of work that’s been done on, for example, the diminishing marginal utility of increased wealth.

2. Believe what you want to, that’s what makes this country great. That you spend so much time attacking something which is amenable to debate, while advancing your own (not amenable to debate) theory is interesting. I’m glad you “strongly suspect” things will be discovered– I’m sure Aristotle did as well.

But, again, that’s really not the point. The point is that the conclusions of the pragmatists are only objective when they say “if you value X at level Y and Z at level T, then you should do V to maximize what you want”. And they are totally off the reservation when they claim there is some common unit that permits you to objectively balance utility to one person or group against utility to another person or group.

In particular, it is impossible to use pragmatism to balance an individual against a group.

But you never answered the question posed to you– you write that flipping coins is okay, and killing people “for pleasure” is “bad”. Well, why? I know that in some societies, it was acceptable to kill people for pleasure. So… without further tautological reasoning (it’s bad because it’s bad, or it’s bad because an authority such as the Bible, Koran, etc. says it is bad) how are you determining that?

I don’t think there’s any way I can bridge the is-ought gap in a reply that’s suitable for use on this blog. My own beliefs are closest to those normally associated with objectivism.

But that’s not the point. The point is that this criticism is unavoidable. If you want to get oughts from ises, you have to bridge the gap somehow. And pragmatists pretend that they don’t have to do that and claim their conclusions are objective and scientific. And they may be, if they tell us what the consequences of our actions will be. But that won’t translate to a ‘should’.

The interesting part is how we decide what is good, and that’s where the hard and interesting part is. When faced with a person who believes that moral reasoning based on pragmatism is a moral evil, the best they can do is claim that this is arbitrary and irrational. But how will they defend their own comparisons against that same charge?

If they use dollars for comparison, how will you defend against the complaint that “dollars to me” are not commensurate with “dollars to you”? Pragmatists pretend there is some way to compare “utility to me” against “utility to you”, and that just cannot be done. You cannot balance the interests of individuals against those of society pragmatically — it is simply impossible. There *is* no common unit.

You keep dancing around the issue. You write that some things are immeasurable, but they aren’t. They can be measured (as revealed preferences). People might have different preference (for example, you might sell your freedom of speech for $50, Bill Gates might if he was offered $500 million). But it doesn’t mean that it *isn’t measurable*. Which was the point. The problem is in bring the right parties to the analysis, and how you set the deafult rule (and with what exceptions– to many collapses into act utilitariansm).

But you never answered the question posed to you– you write that flipping coins is okay, and killing people “for pleasure” is “bad”. Well, why? I know that in some societies, it was acceptable to kill people for pleasure. So... without further tautological reasoning (it’s bad because it’s bad, or it’s bad because an authority such as the Bible, Koran, etc. says it is bad) how are you determining that?

Leo Marvin: I’m not sure what you are asking when you ask how we identify them. I would argue that moral analysis delineates the scope of our moral authority. I can choose what job I want, but I can’t choose to kill you for pleasure.

Within the scope of our legitimate moral authority, people are free to flip coins or guess if they wish to. I would hope they would use pragmatic arguments balancing costs to them against benefits to them. But the beauty of decisions within the scope of your own moral authority is that you are almost always dealing with things that are commensurate. (Benefit to me, harm to me, cost to me, and so on.)

The only case where things really do get tricky is when you have overlapping moral authority. For example, if I am the CEO of a company and have to make decisions involving harm to me and benefit to the company, or vice-versa.

These are the most difficult decisions precisely because we have to balance things that are not commensurate, and pragmatism/utilitarianism doesn’t help us one bit, because it asks us to do the impossible twice. (First to decide what is or is not a benefit without being subjective and then again by asking us to balance what is incommensurate.)

How are we supposed to identify the harms that are incommensurable? Loki asked you that, or words to that effect, but if you answered it, I missed it. Apologies if I did overlook your answer.

I think we’re talking past each other at this point. It’s somewhat amusing to me because a) I’m against the death penalty (remember!) and b) I’m not a utilitarian (either rule or preference... act utilitarians are just sociopaths *grin*). However, I do find your inability to see the flaws in your own position somewhat odd. I know that some of my beliefs are irrational and inconsistent... and I’ve gotten past worrying about it. Have you?

Anyway, as I was trying to explain, ignorance of an economic or utility model of these things is foolish.

As an example–
Say someone will price their First Amendment rights at $50. We could approach this in a number of ways– for example, we could try and look at it as saying that “right” could be bought for $50, therefore that is how much the right is worth for that individual.

...or, you could do a thorough analysis, get the results, and then say, “Screw it. Free speech is too important.” But hey, the more you know... ;)

My point is that utilitarianists claim that their conclusions are objective and don’t have the “subjective moral biases” that they see in moral analysis. But in fact, if those decisions are subjective, arbitrary, or unjustifiable, then so are their conclusions because they rely on that exact same determination before they get started.

Sure, once you decide what is good or bad and how bad it is, you have to prioritize what you do because you only have finite resources. But the interesting part is that first part — the second part is entirely uninteresting and won’t answer the types of questions we’re asking here.

If the idea of utilitariansm is to come up with objectively defensible courses of conduct, it fails, because it cannot objectively defend the goals the courses of conduct achieves — only show that the goals are met.

Utilitarianism isn’t an alternative to moral reasoning. In fact, it is only possible after the moral reasoning is complete.

How do you identify what is good and bad? Again, you’re arguing based on assumption that there is “good” and “bad”, and these are indintified a priori. By who? Okay– murder is bad (let’s ignore war, self-defense, heat of passion and so on). If murder is “bad”, then why are there any unsolved murders? Clearly, it is “bad”, so we must devote all available resources and all of our efforts to find, track down, and punish those who have done bad. Yet we don’t. We devote a lot... but not enough to get close to 100%.

What about theft? Even moreso. Or, to use the easier to comprehend examples– how about prostitution and speeding? These are “bad”, right? If we *really* put the resources in, and increased the jail terms (for speeding!) we could end them. But apparently, we don’t. There is, perhaps, an efficient level of that sort of vice, or a level or tolerance.

You might notice that there is a priority list... almost like we believe that murders are more harmful (of less utility) than prostitution, so we expend more money to combat them, but that we also acknoweldge that there is a diminishing marginal return from expending exceeding amounts of money to catch the last x% of murderers. Go figure.

Restricting the freedom of speech would be a cost to the speaker.

Why? Why is that a cost rather than a benefit? Do utilitarians have some objective standard by which they say “this is a cost, this is bad” and “this is a benefit, this is good”?

Uh, I’m guessing you haven’t actually read very much on it. There’s a lot of work done in here, and you can frame it in different ways (for example, as revealed preferences), but saying that “no utilitarian has ever explained one” would be as ludicrous as my saying that “No Christian theologian has ever tried to justify Christian morality.

I think you still misunderstand my objection. It wouldn’t matter what any utilitarian wrote about what his standards were, this is a problem in principle. For the utilitarian to have some measure of utility, he must say “this is good” and “this is bad”. That I had to do that was supposed to be his objection to my system, but he has to do it too.

Sure, he can make up a laundry list and say what he thinks is good and what he thinks is bad. And yes, at that point, sure, you can pick the thing that maximizes the good and minimizes the bad. But utilitarians hide the fact that they must do the former before they do the latter.

Identifying what is good and what is bad must precede any utilitarian analysis .

Uh, I’m guessing you haven’t actually read very much on it. There’s a lot of work done in here, and you can frame it in different ways (for example, as revealed preferences), but saying that “no utilitarian has ever explained one” would be as ludicrous as my saying that “No Christian theologian has ever tried to justify Christian morality.” One issue is definig the parties– for example, restricting the freedom of speech would be a cost to the speaker. It could be a cost to society (the marketplace of ideas). It could be a benefit to society (defamatory speech). It could be a benefit to other individuals (the target of the defamation, if it is defamatory speech). And so on.

(Aside to ChrisTS– you are correct. I was using morals in the sense David was, and not in the sense of ethics. A utilitarian would argue that their result is “moral” in the same way.)

That “utility” is an objective standard is a convenient myth. There is no conceivable scale on which these things can be measured against each other and no utilitarian has ever explained one.

I don’t think many utilitarians would claim that “What is moral for one group is not moral for another, and vice versa.”

They are just as much objectivists as proponents of any other ethics. Some of them do think the test of utility is [somehwat] ‘subjective,’ but they all believe that utility is the objective moral standard.

I think the debate between you and a true utilitarian (in this case, me, standing in for one) would come down to the following exchange:

U– Your system is completely arbirary. What is moral for one group is not moral for another, and vice versa. It is completely arbitrary. Moreover, the complaints you have about individuals (one person’s preference for pain, for example) is even more acute in your system– one person might view child murder as moral, even if the group did not.

D– Well, your system fails because somethings are hard or impossible to measure. Your math lets you do monstrous things!

U– Nothing is impossible to measure; some things are hard. Moreover, my system requires me to show my work. I have to justify my numbers, and other people can critique them. You do not; you simply assert something is “good” or “bad”. Someone else can then disagree by saying, “No, you’re wrong, my belief system is different.” There’s no empirical way to determine who is correct.

D– Your system is devoid of morality!

U– Your system is devoid of rationality!

...and so it goes. I think you fundamentally misunderstand (there’s those terms again) the use utilitarianism, efficiency, and (in a more specialized field) law and economics have. Let’s use smething less controversial– contract law.

Moral View: it’s wrong to break contracts, ever. Punish the breacher. Word is bond, yo.
Utilitarian View: provided the breaching party pays, it can be efficient for them to breach provided that a more efficient allocation of their resources results.

If you take the moral view, that’s the end of the discussion. It either is moral, or isn’t. If you take a utilitarian view, then you can at least analyze it, and are forced to show the work.

Cf. the death penalty. If you take the moral view, it will always be moral or immoral to have it. And that’s it. No more discussion. OTOH, you can look to see if the death penalty (and what legal rules associated with it) are most efficient. When you do that, you have to show your work. When you do, a critic could point out that you are undervaluing human life, or that you are undervaluing “the rule of law” erosion when an innocent person is executed, and so on. Once you do that, you are more informed.

It doesn’t mean you have to accept it. You can still let your morals determine your judgment (the death penalty is/isn’t wrong). But saying that it cannot be used is also kind of silly.

And what about the exceptions to the first amendment? How about the overthrow the government exception? Hmmmm? Let’s see…. defamation, and the related rule in NY Times v. Sullivan? Clearing the courtroom as an indefinite rule? All play into efficiency arguments.

I don’t dispute that it’s possible to attempt to justify these exceptions on pragmatic grounds. However, I don’t find those arguments persuasive for the reasons I explain — they attempt to balance one thing against another thing that is not commensurate with that thing.

Your argument would only respond to mine if you could show that pragmatic grounds were the only way to justify exceptions to the first amendment that are in fact justified.

I’m not a huge fan of utilitarianism, but it has its purposes. Bad utilititarianism can be used to justify monstrous acts. But then again, so can you system… since you are defining “bad” and “exploiting” with reference to “morals” which have no basis for independent measurement, a society with different “morals” can do (from your point of view) monstrous things.

Utilitarianism just adds more ways you can screw up, by pretending to measure things that are incommensurate. It doesn’t solve the problem you think it solves.

How can you run a utilitarian analysis of some policy without knowing whether or not something is a benefit? What if someone thinks that pain is good, and that therefore pain is a positive benefit that should be weighed against other “costs”? Obviously, such a person will use utilitarianism to justify monstrous (to those who don’t think pain is a good) things.

So utilitariansm suffers from this same defect as moral analysis, plus the additional ones I’ve noted.

1. Stoning to death of adulterers. (Islam)
2. Loss of hand for theft. (Islam)
3. Capital punishment. (many times in the Bible, incl. cursing your mother or father)

There’s an outsde referent for morality...

Uh-huh. And what is “exploiting”? As for not having a free press because it isn’t efficient... um, what? Assumes facts not in evidence.

And what about the exceptions to the first amendment? How about the overthrow the government exception? Hmmmm? Let’s see.... defamation, and the related rule in NY Times v. Sullivan? Clearing the courtroom as an indefinite rule? All play into efficiency arguments.

I’m not a huge fan of utilitarianism, but it has its purposes. Bad utilititarianism can be used to justify monstrous acts. But then again, so can you system... since you are defining “bad” and “exploiting” with reference to “morals” which have no basis for independent measurenment, a society with different “morals” can do (from your point of view) monstrous things.

Slavery, anyone?

I think you fundamentally misunderstand what is being discussed. I use the shot hand of “cost/benefit” analysis because we tend to measure things in dollars, but if you prefer, you could think of it in terms of a made of medium, such as “utils” (measures of utility). In that way, it is amenable to a cost/benefit (or utility) analysis.

These “utils” are a mythical way to gloss over the problem. There is no common unit in which utility to me can be measured against utility to you.

In a particular instance, it might be more costly to allow a newpaper to publish a story than to suppress it. But that doesn’t take into account that cost of weakening the rule (and the transaction costs of having to litigate each particular instance in the future) that newspapers be allowed to publish stories. The overall benefit to society of a clear rule that allows newspapers to publish stories outweighs the particularized costs in a given situation.

But that’s just precisely what we don’t (and certainly shouldn’t) do. There might be any number of cases where breaking the rules in that once case may produce way more utility than following them in all cases. But we don’t, because we have a moral commitment to those rules. We don’t have a free press because it’s efficient, we have one because it’s right. It doesn’t matter how much it helps society to control the press, it has no right to.

I utterly reject the utilitarian analysis. It is flawed in practice, because the common unit is not just notional but mythical. It is flawed in theory, because society has no right to exploit individuals regardless of how efficient it is to do so.

Society is not an end in itself. The only reason benefits to society are good at all is because they are benefits to the individuals that compose that society.

Dan M.: Oh, was there proof it was accidental? I thought there was simply discredited proof that it was intentional.

This comment means nothing. Either way, the burden of the state *was* to prove that he set the fire *intentionally.* “Discredited proof that it was intentional” = wrongful conviction. So, if you want to play semantics–the report doesn’t find him “innocent” but it almost surely would have led him to be found “not guilty.”

I think you fundamentally misunderstand what is being discussed. I use the shot hand of “cost/benefit” analysis because we tend to measure things in dollars, but if you prefer, you could think of it in terms of a made of medium, such as “utils” (measures of utility). In that way, it is amenable to a cost/benefit (or utility) analysis.

The problem is not the analysis is done, but that is done incorrectly. How do you measure the utility (benfits and costs) of ephemeral things such as “the rule of law” or “due process”. Because th analysis is ften cabinned, it is done poorly.

To give you an example that you use–
In a particular instance, it might be more costly to allow a newpaper to publish a story than to suppress it. But that doesn’t take into account that cost of weakening the rule (and the transaction costs of having to litigate each particular instance in the future) that newspapers be allowed to publish stories. The overall benefit to society of a clear rule that allows newspapers to publish stories outweighs the particularized costs in a given situation.

Now, you might just disagree with the death panlty (as I do). But to say that “In general, we don’t use use cost/benefit analyses when balancing costs to individuals against benefits to society” misunderstands the evolution of the law. But you have to look at the rule, not the instance.

The guy’s been dead for five years now. [...] Personally, I hope the State of Texas does’t spend any more money on the case.

Do you also hope that California doesn’t spend any more money on Polanski? That’s, after all, been over 30 years.

The problem is, we don’t get to chose between executing the innocent, or not. We get to chose between procedures which aim to execute the innocent, or not.

And procedures are ALWAYS fallible. The only procedure guaranteed to not punish the innocent, is to never punish anybody, just as the only procedure guaranteed to punish the guilty is to punish everybody.

Of course. The question is, on what basis do we choose those procedures. I’m saying, the one basis on which we cannot choose those procedures is a cost/benefit analysis.

The reason we can’t do that is because a cost/benefit analysis requires the costs and benefits to be measurable in a common unit. For example, if you can measure the costs and the benefits in dollars, then you can do a cost/benefit analysis.

When deciding procedures for capital punishment, they say we have to weight the cost of executing innocent people against the benefits of executing guilty ones. Some procedures will do more of the former but also more of the latter. Others will do less of the first and also less of the second.

My point is that this is an impossible basis to decide policy because these two things are incommensurable. There is no scale on which we can measure the harm to an individual of being wrongly executed against the benefit to society of executing a guilty person.

And if you say “but what basis is there other than cost/benefit?” then you have swallowed the pragmatist kool aid. We don’t use cost/benefit analysis, for example, when deciding whether to allow a newspaper to publish a story. We don’t use cost/benefit analysis when deciding whether a person should be allowed to be an engineer even though he would make a *great* doctor and society badly needs doctors.

In act, in general, we don’t use cost/benefit analyses when balancing costs to individuals against benefits to society. And we shouldn’t here either.

First, do not misunderstand what I am explaining for my position (or have you missed the times when I have written that I am against the death penalty).

Second, what you are saying is not close to what we have here. It is not the case that we are just executing innocent people to make other people feel better. There is a question about how effective are our safeguards, and whether it is worth it to have the death penalty. If it’s a moral issue, then there’s no use going further. But for some, the question is– how could we change the law (and at what cost) to make sure this doesn’t happen. Try to imagine this aside from the death penatly. Right now, there are a lot more innocent people serving long (LONG) jail sentences for crimes they did not commit, and who will receive no exoneration. What is the acceptable error rate for them?

Third, in your hypo as you presented, a true utilitarian would say– yes, that would be fine, but they would also say that you didn’t measure the cost (or utility) correctly. What is the true cost/utility (to law, society, democracy, etc.) of arbitrarily executing innocent people? You’re just not accounting correctly. :)

without having been in that situation you can’t really understand what it’s like.

Speak for yourself, son. I don’t think that’s true for those of us over age 45 or so. In a quarter century of adult life you often end up having to make at least one or two decisions on short notice that at least at the time seemed to be life and death decisions, or of similarly high stakes

I’ve been in a number of high stress situations. Made some good decisions, made some bad. Seen other people make worse ones (like the guy who rescued the table lamp he just bought and let everything else burn).

If you have been through fire training, part of that is they go over a number of case studies of the stupid things people do and how they need to be trained in, and to practice, proper procedures to escape a fire.

There is a large body of literature about coping with sudden emergencies and what defines the differences between the survivors and the victims.

But most people caught unprepared screw up.

Is this the point you are referring to?

…..there is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

If so, I disagree with your statement. Scalia isn’t saying the criminal justice system can’t be perfect. He’s saying he’s not interested in newly discovered evidence.

I suppose there are commenters who are prepared to give learned disquisitions on why “due process” arguments to the contrary don’t hold. Save yourself the effort.

Of course, if you send someone away for life, there’s a greater chance of remedying a mistaken conviction than if you execute them. But it’s still just a chance. If you have a system where the maximum punishment is life in prison, then some innocent people are going to die in prison. Either you think that outcome is morally defensible or you don’t.

I will also confirm what Sam Hall pointed out — Perry had no authority to issue a Pardon in this case unless there was a Pardon recommendation from the Board — in the absence of such a recommendation (the request was made and rejected in this case), the most Perry could have done was grant a 30-day stay of execution. Given the makeup of the Texas Court of Criminal Appeals (the highest court in Texas for criminal matters) at the time, that would not have saved the condemned man. As to people like me — a libertarian conservative who will not vote for a nanny-state liberal Democrat, but really hates the direction the Republican party is going, this appears like a delay tactic or cover up by Perry, but won’t necessarily throw me into the Kay Bailey Hutchison camp — she’s proven herself too much of a corporatist Republican when, as the Senator from American Airlines, she worked very hard to prevent a total repeal of the Wright Amendment, even though the long delay in allowing Southwest to fly direct out of Love Field to farther destinations will cost Dallas fliers Billions in excessive airfares. No, I don’t particularly like Perry, but I really don’t like Hutchison, and it’s hard for me to fathom that the Texas Democratic Party will put forward a candidate that doesn’t really bother me (I’ll have to wait & see on that, but I’m not terribly optimistic).

I believe that the “harm” to a person from executing them for a crime they did not commit is simply not in any way comparable to the benefits to society of executing a guilty man.

The problem is, we don’t get to chose between executing the innocent, or not. We get to chose between procedures which aim to execute the innocent, or not.

And procedures are ALWAYS fallible. The only procedure guaranteed to not punish the innocent, is to never punish anybody, just as the only procedure guaranteed to punish the guilty is to punish everybody.

So, all procedures are fallible. This implies that either it’s constitutional to occasionally punish the innocent, if you’re following the due procedure, or that there is NO constitutional procedure for punishing the guilty. The latter is not a choice any culture makes, and it’s certainly not the one we have chosen.

Punishing the innocent is constitutional.

That’s not to say that we’ve set the right balance between protecting the innocent, and going after the guilty. But the Constitution does not demand perfection, and that’s the point I understood Scalia to be making.

If so, I think it’s self-evident that you are a moral monster. If not, then I think it’s self-evident that cost/benefit analysis have no place in questions of capital punishment.

I, in fact, believe the latter. I believe that the “harm” to a person from executing them for a crime they did not commit is simply not in any way comparable to the benefits to society of executing a guilty man. There is simply no conceivable scale on which these two things can be measured. A cost/benefit analysis presumes the costs and benefits can be measured on the same scale. I don’t see how you can do that here.

Speak for yourself, son. I don’t think that’s true for those of us over age 45 or so. In a quarter century of adult life you often end up having to make at least one or two decisions on short notice that at least at the time seemed to be life and death decisions, or of similarly high stakes. I know I have. I would be surprised if most men my age had not. No, that’s not exactly the same as waking up with your house on fire, but having seen ourselves in situations as similarly urgent and important, I don’t think asserting we have zero basis for estimating our behaviour is reasonable.

I don’t fault you for saying or believing this, because I probably have an unfair advantage in evaluating how Texas voters would respond to this information: I lived in Texas for a while.

I lived in Austin, which resembles civilization, but I ventured into the countryside periodically. Outside the UT campus, Texas has great barbecue, very good Tex-Mex food, good (Shiner) beer, just about nothing else.

OIC. Everything that Sy Hersh says is wrong ... because you don’t want to hear it. And that taint infects anyone else in contact with him. My, we have a pandemic on our hands.

Cheers,