Ethics for Force Users
The State of Nature has a Law of Nature to govern it, which obliges every one: And
Reason, which is that Law, teaches all Mankind, who will but consult it, that being all
equal and independent, no one ought to harm another in his Life, Health, Liberty, or
Possessions.
John Locke, The Second Treatise of Civil Government, §6
Two things fill the mind with ever new and increasing admiration and awe, the
oftener and more steadily we reflect on them:
the starry heavens above me
and the moral law within me.
Immanuel Kant, Critique of Practical Reason
(Kritik der praktischen Vernunft) [A 289, Lewis White Beck trans.]
Outline
1. Objective: To provide a definition of ethical vs. moral and to lay the framework to challenge Force users
to think outside their current schemas and develop an ethical mindfulness to their actions.
2. Syllubus
a. Introductions
i. Who I am.
ii. Who you are.
b. Course overview – This is an intro level workshop for those who are living the JEDI path and who
wish to take a look into the moral dilemma.
c. Ethics vs. Morals – from Merriam-Webster Dictionary
d. Morals
i. Main Entry: 2mor·al
Pronunciation: 'mor-&l, 'mär-; 3 is m&-'ral
Function: noun
1 a : the moral significance or practical lesson (as of a story) b : a passage pointing out
usually in conclusion the lesson to be drawn from a story
2 plural a : moral practices or teachings : modes of conduct b : ETHICS
e. Ethics - eth·ic
i. Pronunciation: 'e-thik
Function: noun
Etymology: Middle English ethik, from Middle French ethique, from Latin ethice, from
Greek EthikE, from Ethikos
1 plural but singular or plural in construction : the discipline dealing with what is good and
bad and with moral duty and obligation
2 a : a set of moral principles or values b : a theory or system of moral values <the
present-day materialistic ethic> c plural but singular or plural in construction : the
principles of conduct governing an individual or a group <professional ethics> d : a
guiding philosophy
f. Situational Dilemmas – handout
i. The Underwater Tunnel.
ii. Overcrowded Lifeboat
iii. The Value of a Promise.
g. Some thoughts
i. Easier in a win/lose situation. But what about when a choice has two losing options.
1. what about two winning ones?
2. Buddhism – less suffering
a. 8-fold path
i. Right View
ii. Right Intention
iii. Right Speech
1. True & Useful
2. What about not saying anything?
iv. Right Action
v. Right Livelihood
vi. Right Effort
vii. Right Mindfulness
viii. Right Concentration
ix.
ii. KOTR:Sith Example - Is charity is ethical? There is a scene where you are asked for
some credits by a refugee and if you give him the credits some other refugees end up
killing the refugee for his money. Darth Traya went into a dissertation about how by
artificially supporting the weak and those who cannot survive on their own you cause far
more harm to the species and the universe than the tiny bit of good that you have doneIf
you have a group of people who are weak and you protect them they will come to expect
that protection and pass that expectation on to their progeny who will demand even
greater protection. The will demand this because they saw some suffering in their
parents and did not see it as an empowering symbol of struggle but as a failure in their
benefactor. Eventually you end up with a society where the lower class are entirely
dependant upon the upper and resentment runs deep on either side. The powerful cease
to trust the weak and the weak cease to trust the powerful. From this situation there can
be only slavery or revolution.
We must be mindful of what protection (physically, emotionally or financially) we give to
others for our charity may be the first link in the chains of bondage.
Star Wars Morality
In reading various Star Wars commentary I've come across a lot of the backstory to the movies, particularly
about the Sith. Apparently it's standard practice for the Sith to betray each other: either the apprentice kills
his master to become the new master, or the master offs the apprentice and finds a replacement. Given Sith
ethics, this makes perfect sense.
But wait: at the end of Return of the Jedi Vader betrays and kills his master, and this is presented as a
majorly redemptive act! This is only redemptive if we think that Vader has some loyalty to the emperor, but it
turns out the Sith don't value loyalty at all, and the master/apprentice relationship only exists as long as it's
mutually beneficial to both parties. In other words, by killing the Emperor at the end of Episode VI, Vader is
only doing precisely what would be expected of a Sith.
In fact, we know that he was planning to kill Darth Sidious in favor of Luke the whole time—remember his
proposal in Episode V, "together we will rule the galaxy as father and son". So basically this was his plan all
along, except that he accidentally got killed in the process.
Now, one could argue that in the end he didn't kill Sidious to advance his own personal power, but instead did
it just to save Luke (and without regard for his own safety). This is true, but again it's perfectly in line with
Sith ethics. We are told over and over that the Dark Side is about giving in to one's passions, while the Jedi
way is to remain detached and unemotional. Hence, when Vader betrays the Emperor out of his paternal
attachment to Luke, he's still following the basic tenets of the Dark Side. (And still ignoring Yoda's advice from
Episode III, to give up his personal attachments.)
So, why give Vader any credit for returning to the light at the end of the series?
[One interesting interpretation of the whole saga I've seen various commentators hinting at is that Luke
represents a "third way" between the Jedi philosophy of extreme detachment and the Sith philosophy of
being ruled by one's passion. Furthermore, this is the kind of balance in the Force that Qui-Gon Jinn
(who had serious disagreements with the Jedi Council) was trying to engineer back in Episode I. It
doesn't really seem to be what George Lucas had in mind (since he's not terribly subtle with the lessons
he does intend) but it's an interesting way to look at the series.]
Some Moral Dilemmas
The following is a list of some moral dilemmas, mostly adapted from Moral Reasoning, by Victor
Grassian (Prentice Hall, 1981, 1992), with a couple additions. The question to consider with all of these
is why they are dilemmas. Some, however, may not seem to be dilemmas at all.
1. The Overcrowded Lifeboat
In 1842, a ship struck an iceberg and more than 30 survivors were crowded into a lifeboat
intended to hold 7. As a storm threatened, it became obvious that the lifeboat would have
to be lightened if anyone were to survive. The captain reasoned that the right thing to do
in this situation was to force some individuals to go over the side and drown. Such an
action, he reasoned, was not unjust to those thrown overboard, for they would have
drowned anyway. If he did nothing, however, he would be responsible for the deaths of
those whom he could have saved. Some people opposed the captain's decision. They
claimed that if nothing were done and everyone died as a result, no one would be
responsible for these deaths. On the other hand, if the captain attempted to save some, he
could do so only by killing others and their deaths would be his responsibility; this would
be worse than doing nothing and letting all die. The captain rejected this reasoning. Since
the only possibility for rescue required great efforts of rowing, the captain decided that
the weakest would have to be sacrificed. In this situation it would be absurd, he thought,
to decide by drawing lots who should be thrown overboard. As it turned out, after days of
hard rowing, the survivors were rescued and the captain was tried for his action. If you
had been on the jury, how would you have decided?
2. A Father's Agonizing Choice
You are an inmate in a concentration camp. A sadistic guard is about to hang your son
who tried to escape and wants you to pull the chair from underneath him. He says that if
you don't he will not only kill your son but some other innocent inmate as well. You don't
have any doubt that he means what he says. What should you do?
3. Sophie's Choice, not in Grassian.
In the novel Sophie's Choice, by William Styron (Vintage Books, 1976 -- the 1982 movie
starred Meryl Streep & Kevin Kline), a Polish woman, Sophie Zawistowska, is arrested
by the Nazis and sent to the Auschwitz death camp. On arrival, she is "honored" for not
being a Jew by being allowed a choice: One of her children will be spared the gas
chamber if she chooses which one. In an agony of indecision, as both children are being
taken away, she suddenly does choose. They can take her daughter, who is younger and
smaller. Sophie hopes that her older and stronger son will be better able to survive, but
she loses track of him and never does learn of his fate. Did she do the right thing? Years
later, haunted by the guilt of having chosen between her children, Sophie commits
suicide. Should she have felt guilty?
4. The Fat Man and the Impending Doom, with parts cut out in the 2nd edition; they seem to
have gotten removed to avoid unintentionally humorous overtones.
A fat man leading a group of people out of a cave on a coast is stuck in the mouth of that
cave. In a short time high tide will be upon them, and unless he is unstuck, they will all
be drowned except the fat man, whose head is out of the cave. [But, fortunately, or
unfortunately, someone has with him a stick of dynamite.] There seems no way to get the
fat man loose without using [that] dynamite which will inevitably kill him; but if they do
not use it everyone will drown. What should they do?
5. The Costly Underwater Tunnel, compare: 112 men were killed during the construction of
Hoover Dam on the Nevada-Arizona border (the "official" number was 98, but others had died
from causes more difficult to identify -- or easier to ignore -- like by carbon monoxide
poisoning): The first was a surveyor, J.G. Tierney, who drowned on December 20, 1922, and the
last was his son, Patrick Tierney, who drowned on December 20, 1935 -- 13 years to the day
after his father.
6. The working conditions in the summer down in the canyon
Railroad Safety
involved temperatures hitting highs of 119o, with lows of no
less than 95o (familiar numbers to those who have visited
fatalities
billions of
per billion
the cities of Needles, Blythe, or Yuma in the summer). In
year passenger
passenger
1931, about the time that Hoover Dam, a federal project
miles
miles
(with private contractors), was begun, the Empire State
Building, a private project, was completed. Although the
1890 11.8
24.2
rule of thumb had been that one man would die for every
story built in a skyscraper, which would have meant 120
1900 16.0
15.5
dead for the Empire State Building, in fact only 5 men died
1910 32.3
10.0
in the whole project. By comparison, in the earlier (19081913) building of the Los Angeles Aqueduct by William
1920 47.4
4.8
Mulholland (d.1935), it was also the case that only 5 men
died (though when Mulholland's St. Francis Dam, in
1930 26.9
2.3
Francisquito Canyon, collapsed in 1928, it killed over 500
people). The Golden Gate Bridge cost 14 lives (or 11 -- the
1939 22.7
1.8
rule of thumb there was one life for each $1,000,000 of the
1943 87.9
3.2
project, with the bridge costing $35,000.000). The Tunnel
under the English Channel, built in the early 1990's, cost 11
1950 31.8
0.6
lives. When the Gateway Arch in St. Louis was being
planned, the prediction was that 15 workers would die, but
1970 10.8
0.07
none did. Similarly, though much earlier (1927-1941), no
one died during the carving of Mt. Rushmore. Even with such progress over time, the John
Hancock Building in Chicago (1970) cost 109 lives, or, indeed, about one per floor, as predicted
for the Empire State Building. While it is usually ordinary workers who suffer in construction
accidents, it isn't always, as was the case with the Brooklyn Bridge, whose designer, John
Augustus Roebling, died in a ferry accident in 1869 while surveying the site. His son,
Washington Roebling, suffered such a severe case of the bends, working in a pressurized caisson
in 1872, that he supervised the rest of the construction crippled in bed, sending instructions
through his wife, until the bridge was completed in 1883. Overall, 27 died on the Brooklyn
Bridge, 3 from the bends. It was many years before it was known what to do about this
condition. Workers were still suffering from the bends when the Holland Tunnel was built in the
1920's. The chief engineer of the tunnel, Clifford Milburn Holland, died suddenly in 1924, aged
41, of "exhaustion." The tunnel, opened in 1927, was then named after him. The first tunnel
under the Hudson, for railroads, was begun in 1874; but construction was abandoned, restarted,
and not completed until 1908. All such bridges and tunnels eliminate the need for ferry boats.
Even in recent years, ferry sinkings and accidents are common, and they still result in the deaths
of hundreds of people at a time.
7. An underwater tunnel is being constructed despite an almost certain loss of several lives
[actually, all but certain]. Presumably the expected loss is a calculated cost that society is
prepared to pay for having the tunnel ["society" doesn't make any such calculation]. At a
critical moment when a fitting must be lowered into place, a workman is trapped in a
section of the partly laid tunnel. If it is lowered, it will surely crush the trapped workman
to death. Yet, if it is not and a time consuming rescue of the workman is attempted, the
tunnel will have to be abandoned and the whole project begun anew. Two workmen have
already died in the project as a result of anticipated and unavoidable conditions in the
building of the tunnel. What should be done? Was it a mistake to begin the tunnel in the
first place? But don't we take such risks all the time?
8. Jean Valjean's Conscience, with some comments; see the 1998 movie, Les Miserables, with
Liam Neeson, Uma Thurman, and Geoffrey Rush.
In Victor Hugo's Les Miserables, the hero, Jean Valjean, is an ex-convict, living illegally
under an assumed name and wanted for a robbery he committed many years ago.
[Actually, no -- he is only wanted for breaking parole.] Although he will be returned to
the galleys -- probably [in fact, actually] for life -- if he is caught, he is a good man who
does not deserve to be punished. He has established himself in a town, becoming mayor
and a public benefactor. One day, Jean learns that another man, a vagabond, has been
arrested for a minor crime and identified as Jean Valjean. Jean is first tempted to remain
quiet, reasoning to himself that since he had nothing to do with the false identification of
this hapless vagabond, he has no obligation to save him. Perhaps this man's false
identification, Jean reflects, is "an act of Providence meant to save me." Upon reflection,
however, Jean judges such reasoning "monstrous and hypocritical." He now feels certain
that it is his duty to reveal his identity, regardless of the disastrous personal
consequences. His resolve is disturbed, however, as he reflects on the irreparable harm
his return to the galleys will mean to so many people who depend upon him for their
livelihood -- especially troubling in the case of a helpless woman and her small child to
whom he feels a special obligation. He now reproaches himself for being too selfish, for
thinking only of his own conscience and not of others. The right thing to do, he now
claims to himself, is to remain quiet, to continue making money and using it to help
others. The vagabond, he comforts himself, is not a worthy person, anyway. Still
unconvinced and tormented by the need to decide, Jean goes to the trial and confesses.
Did he do the right thing?
9. A Callous Passerby
Roger Smith, a quite competent swimmer, is out for a leisurely stroll. During the course
of his walk he passes by a deserted pier from which a teenage boy who apparently cannot
swim has fallen into the water. The boy is screaming for help. Smith recognizes that there
is absolutely no danger to himself if he jumps in to save the boy; he could easily succeed
if he tried. Nevertheless, he chooses to ignore the boy's cries. The water is cold and he is
afraid of catching a cold -- he doesn't want to get his good clothes wet either. "Why
should I inconvenience myself for this kid," Smith says to himself, and passes on. Does
Smith have a moral obligation to save the boy? If so, should he have a legal obligation
["Good Samaritan" laws] as well?
10. The Last Episode of Seinfeld, not in Grassian.
The cast of Seinfeld, Jerry, Elaine, George, and Kramer, have a layover in a small New
England town. They witness a robbery in broad daylight. The robber has his hand in his
pocket, and the victim shouts that the man has a gun. As soon as the robber runs away, a
policeman appears on the scene; but instead of pursuing the robber, he arrests Jerry,
Elaine, George, and Kramer for having violated the new "Good Samaritan" law of the
town. Since the four of them spent the time of the robbery making fun of the victim, who
was fat, their role in the matter doesn't look good, and at their trial everyone who has ever
felt wronged by them in the course of the television series testifies against them. They are
convicted. Is this just? What were they supposed to do during the robbery? Should they
have rushed the robber, just in case he didn't really have a gun?
11. A Poisonous Cup of Coffee, with Jane and Debbie added for the sake of gender equality.
Tom[/Jane], hating his[/her] wife[/husband] and wanting her[/him] dead, puts poison in
her[/his] coffee, thereby killing her[/him]. Joe[/Debbie] also hates his[/her]
wife[/husband] and would like her[/him] dead. One day, Joe's[/Debbie's] wife[/husband]
accidentally puts poison in her[/his] coffee, thinking it's cream. Joe[/Debbie] has the
antidote, but he[/she] does not give it to her[/him]. Knowing that he[/she] is the only one
who can save her[/him], he[/she] lets her[/him] die. Is Joe's[/Debbie's] failure to act as
bad as Tom's[/Jane's] action?
12. The Torture of the Mad Bomber. cf. Clint Eastwood's movie, Dirty Harry. Now, however,
after 9/11/01, we have the case of terrorist suspects who may know of planned operations that
could cost the lives of thousands. The otherwise four-square civil libertarian and Harvard Law
Professor Alan Dershowitz has actually suggested legalized torture to deal with such people.
A madman who has threatened to explode several bombs in crowded areas has been
apprehended. Unfortunately, he has already planted the bombs and they are scheduled to
go off in a short time. It is possible that hundreds of people may die. The authorities
cannot make him divulge the location of the bombs by conventional methods. He refuses
to say anything and requests a lawyer to protect his fifth amendment right against selfincrimination. In exasperation, some high level official suggests torture. This would be
illegal, of course, but the official thinks that it is nevertheless the right thing to do in this
desperate situation. Do you agree? If you do, would it also be morally justifiable to
torture the mad bomber's innocent wife if that is the only way to make him talk? Why?
13. The Principle of Psychiatric Confidentiality, cf. the 1997 movie, Devil's Advocate, and the
1993 movie, The Firm, on confidentiality between lawyers and clients.
You are a psychiatrist and your patient has just confided to you that he intends to kill a
woman. You're inclined to dismiss the threat as idle, but you aren't sure. Should you
report the threat to the police and the woman or should you remain silent as the principle
of confidentiality between psychiatrist and patient demands? Should there be a law that
compels you to report such threats?
14. The Partiality of Friendship
Jim has the responsibility of filling a position in his firm. His friend Paul has applied and
is qualified, but someone else seems even more qualified. Jim wants to give the job to
Paul, but he feels guilty, believing that he ought to be impartial. That's the essence of
morality, he initially tells himself. This belief is, however, rejected, as Jim resolves that
friendship has a moral importance that permits, and perhaps even requires, partiality in
some circumstances. So he gives the job to Paul. Was he right?
15. The Value of a Promise, Compare with the role of David Cash in the murder of Sherrice
Iverson by Jeremy Strohmeyer.
A friend confides to you that he has committed a particular crime and you promise never
to tell. Discovering that an innocent person has been accused of the crime, you plead with
your friend to give himself up. He refuses and reminds you of your promise. What should
you do? In general, under what conditions should promises be broken?
16. The Perjured President, not in Grassian.
A long time Governor of a Southern State is elected President of the United States on a
platform that includes strong support for laws against sexual harassment. After he is in
office, it comes out that he may have used State Troopers, on duty to protect him as
Governor, to pick up women for him. One of the women named in the national press
stories as having been brought to the Governor for sex felt defamed because she had
actually rebuffed his crude advances, even though he had said that he knew her boss -she was a State employee. She decides to clear her name by suing the now President for
sexual harassment. The Supreme Court allows the suit to proceed against the sitting
President. Because the sexual harassment laws have been recently expanded, with the
President's agreement, to allow testimony about the history of sexual conduct of the
accused harasser, the President is questioned under oath about rumors of an affair with a
young White House intern. He strongly denies that any sexual relationship had ever taken
place, and professes not to remember if he was even ever alone with the intern. Later,
incontrovertible evidence is introduced -- the President's own semen on the intern's dress
-- that establishes the existence of the rumored sexual relationship. The President then
finally admits only to an ambiguous "improper relationship." So the question is: Is it
hypocritical of the President and his supporters to continued to support the sexual
harassment and perjury laws if they do not want him to be subject to the ordinary
penalties for breaking them?
The Generalized Structure
of Ethical Dilemmas
Among men there are but few who behave according to principles -which is extremely good, as it can so easily happen that one errs in these principles, and then
the resulting disadvantage extends all the further, the more universal the principle and the
more resolute the person who has set it before himself.
Immanuel Kant, Observations of the Feeling of the Beautiful and Sublime
[translated by John T. Goldthwait, University of California Press, 1960, p.74]
The most common question I'm asked by such non-legal characters as cross my path, or get
talking to me over a glass in Pommery's Wine Bar, is how you can defend a customer when
you know he's guilty. Well, the answer is, of course, that you don't. Once the old darling tells
you that he did the deed, you've got to adivse him to plead guilty, admit all and take the
consequences. If he refuses to agree, then you must leave him to his own devices.
Horace Rumpole [John Mortimer, "Rumpole for the Defense," The Second Rumpole Omnibus,
Penguin, 1988, p.24]
Many moral dilemmas are dilemmas because of a certain kind of conflict between the rightness or
wrongness of the actions and the goodness or badness of the consequences of the actions. In the list of
moral dilemmas in the ethics textbook I used for many years [Victor Grassian, Moral Reasoning], the
lifeboat example (where some must be tossed overboard to save the others), the fat man in the cave
(where the fat man, stuck in the entrance, must be killed to save the others), and several other dilemmas
are of this kind. I call this the conflict of the right with the good: Our duty is to do what is right; but as
a practical matter, we would just as
soon have things turn out as well as
possible -- as Machiavelli says in
The Prince:
In all men's acts, and in those of
princes most especially, it is the
result that renders the verdict when
there is no court of appeal. [Daniel Donno translation, Bantam Books, 1981, p.63]
Hence the dilemma: If doing what is right produces something bad, or if doing what is wrong produces
something good, the force of moral obligation may seem balanced by the reality of the good end. We
can have the satisfaction of being right, regardless of the damage done; or we can aim for what seems to
be the best outcome, regardless of what wrongs must be committed. This pattern of dilemma may be
represented in the chart:
Noteworthy are the concentration camp or Sophie's Choice type dilemmas, which do not occur naturally
but are intended to present unacceptable choices either way: They depend on the possibility of
constructing such dilemmas. The natural possibility of such dilemmas means that they can be
constructed with bad intentions. The Nazis were not trying to teach moral lessons. They were simply
trying to get people to cooperate (to do wrong for fear of bad consequences), to break down their sense
of right and wrong ("You are so high and noble, what is the right answer to the dilemma?"), and to
distract people from the malevolence of the Nazis themselves. Nevertheless, I have had students
indignantly assert (and even leave the class) that if the the Nazi guards killed more people because
certain prisoners did not cooperate, then it was the fault of the prisoners. They might have considered
that the guards who did the shooting, not the prisoners, would be the ones on trial at Nuremberg.
Another complication is knowledge. If one is going to do what is right, and take a stand on principle,
despite undoubtedly bad consequences (like everyone in the lifeboat drowning), then one better be pretty
damn sure that the principle is true. Otherwise, many may die for nothing. Parents who wish to withhold
blood transfusions from their children, or even from themselves, for religious reasons, must balance
grave risk of death against no more than the certainty of their faith.
A similar problem occurs over the goodness of the consequences. Tens of millions of people died in
order to bring about a communist "workers' paradise," a society without want, greed, crime, or even
government, in places like the Soviet Union and Maoist China. Such an ideal has existed in many forms,
but rarely with the belief that it could be effected by mass murder and slavery. In this case, it depended
on no more than a certain theory (Marxism) of economics and history. The end evisioned seemed so
good and humane, that this theory made it possible to rationalize murder, torture, and slavery on the
ground that these were only wrongs from a "bourgeois" point of view, and so in fact "revolutionary
justice." Thus, the "end justifies the means" really became a way of denying that the means were even
wrong.
Such moral dilemmas cannot simply be "solved." Ethical
theories that seem to provide clear cut solutions will leave
out some aspect of moral life: teleological theories leave out
the dimension of the moral judgment of action, while
deontological theories may deny that consequences are of
any concern. Human action, in general, does go for the best
consequences; but there also come times when bad
consequences must be accepted because we must do the right
thing. And sometimes the right thing actually produces the
best consequences. Thus, standing up in opposition under a
communist regime would usually just get one, and possibly
one's whole family and friends, arrested; but in 1989, the
spontaneous protests of many in Czechoslavakia and
Romania swiftly brought down the regimes. Large scale evils
require the cooperation of many, of whom a large number are
just going along with the crowd and afraid of being different
and victimized. If even one example can give heart to those,
then right action can suddenly produce the best effects.
In life, the existence of moral dilemmas throws our evaluation back to the keeper level of action: to the
character and intentions of the persons. Thus, in Sophie's Choice, Sophie is an appealing person because
she wants to do what is right and is emotionally torn by the moral dilemmas in which she finds herself.
We do not blame her for them. If, however, she were a morally callous person who didn't care about the
dilemmas or about what she did, then it would not be an appealing or tragic story, as it is. The whole
project of examining moral dilemmas is a relatively modern one. We don't find it in Plato or Aristotle.
With them, as in life, what we really want to know is what a person is like morally -- are they a good
person or a bad person? If they are a good person, we know they will try to do the right thing, and the
occurrence of dilemmas does not subtract from their goodness.
If there is no real "solution" to the conflict of the right with the good, in the sense that a solution usually
seems to be expected, as by Utilitarianism, for instance, there is lesson about the nature of ethics and of
value, and that is the polynomic theory of value: Moral value and the value of non-moral good ends can
vary independently.
Similar dilemmas can occur with different domains of value. Thus, is good art always morally good?
Certainly not. Thus, film schools commonly feature study of the films of Leni Riefenstahl (b.1902) -Triumph of the Will (1935) and Olympia (1936) -- which are classics of documentary film making.
Unfortunately, they were also Nazi propaganda films, and Riefenstahl was prohibited from making
movies after World War II. Without a doubt, however, they are great art, whose aesthetic appeal is even
copied in certainly anti-Nazi films like Indiana Jones and the Last Crusade (1989), where we have a
Nuremberg party rally, just like in Triumph of the Will, reproduced in loving detail. Fortunately, they are
the exception rather than the rule for Nazi era art.
Closer to home, we have the films of D.W. Griffith (d.1948). In 1915, Griffith made a movie out of a
play, The Clansman, and two novels by a friend, Thomas Dixon, Jr. The Clansman was about how the
Ku Klux Klan had saved the South after the Civil War. When Griffith showed the movie to the new
President of the United States, Woodrow Wilson, Wilson is supposed to have suggested what became
the title of the movie, Birth of a Nation. The storm of protest over the racism and pro-Southern
sentiments of the movie moved Griffith to make his next movie, Intolerance (1916), which detailed
various historical examples of religious or political oppression. In other words, the protest against
Griffith's celebration of lynching and racism was supposed to be the equivalent of the St. Bartholomew's
Day Massacre of 1572 (when French Protestants were slaughtered). Griffith seems to have been a very
morally confused person. In modern Hollywood, however, reproductions of the Babylon set from
Intolerance can now be inspected at the corner of Hollywood Blvd. and Highland Ave. This is now the
permanent site for the Oscar telecasts. In Forrest Gump (1994), Tom Hanks is digitally inserted, as
Nathan Bedford Forrest (the founder of the Klan), in Klan robes, into an actual film clip from Birth of a
Nation. Griffith's films are beyond doubt of artistic and historical importance, but his racism (like
Wilson's) is less often noted.
Political control is for political ends rather than for artistic ends, and political control also becomes
impatient with mere artistic and aesthetic criteria. Thus, political art easily degenerates into really bad
art, which is what generally characterized the Nazi regime. This preserves us from facing the dilemma of
morally bad but good art very often. A similar dynamic is evident in the Soviet Union, which attracted
political enthusiasts who were genuinely good artists in the '20's and then tended to kill or exile them, in
favor of politically reliable hacks. The Soviet equivalent of Leni Riefenstahl might be Sergei Eisenstein
(1898-1948), whose Battleship Potemkin (1925) is one of the real classics of movie history, from which
scenes turn up even in unlikely places like The Untouchables (1987). Eisenstein suffered from the tides
of Soviet politics, as his anti-German Alexander Nevsky (1938) was first suppressed in 1939, after the
Nazi-Soviet pact, and then released again in 1941, after the German invasion. His three part Ivan the
Terrible (1943, 1946, incomplete) didn't make it past part two, which was suppressed because Ivan
turned out to be rather too much like Comrade Stalin. It was only released in 1958, as part of
Khrushchev's de-Stalinization. In the same year, however, Khrushchev forced Boris Pasternak (18901960) to turn down the Nobel Prize for Literature, because his novel, Doctor Zhivago, had been
published abroad after being rejected for publication in the Soviet Union. "The development of literature
and art in a socialist society," said Khrushchev, "proceeds...as directed by the Party." With guidance like
this, Soviet art, in general, became just as bad as Nazi art, for the same reasons. An attempt to stage an
"unofficial" art show in a vacant lot in the late 70's, after Jimmy Carter's "Helsinki Accords" supposedly
established certain freedoms of expression in the Soviet Union, actually ended with government
bulldozers mowing down the paintings. Nothing independent, unofficial, or unauthorized was going to
be tolerated. Despite an internationally successful movie version in 1965, the winner of multiple Oscars,
Doctor Zhivago was not published in the Soviet Union until 1987.
The independence of morality from religious value is also evident in the many crimes that can be
attributed to organized religion -- from the Spanish Inquisition to the Terror of revolutionary Islâmic
Irân. This is commonly taken to mean that morally bad practices and actions refute the value or validity
of a particular religion, or of all religions. But those who thought that the abolition of religious
superstition would lead all by itself to justice and happiness were in for a shock in the 20th century,
when secular ideologies, like Fascism and Communism, killed far more people than can be attributed to
previous religious atrocities -- even to all of them put together. Nevertheless, this is a hard lesson, both
for the religious, who see themselves as morally superior (and who, in some ways, are actually right
about that), and for the anti-religious, who often use deceptions like "separation of church and state" to
actually attempt to suppress the free speech and practice of the religious. The proper judgment is that the
doctrines of religion, although they may contain moral teachings, are actually independent of moral
judgement, which may conflict with them. Moral reasoning is a rational matter, which is over and
against religion -- something that even St. Thomas Aquinas agreed with, though he did not think that
conflict could arise. It does. Thus, religion sometimes needs to be morally corrected -- as must the
judgment of secular ideologues.
These kinds of dilemmas, whether conflicts in action or involving art or religion, thus give us important
clues about the nature of value, where the solution is the polynomic theory of value.
In the examples of moral dilemmas, however, not all of them fit the pattern of the right versus the good.
The callous passerby, especially, is about something else, and it also strikes many people as no dilemma
at all. What complicates the issue, as it happens, is the difference between duties of omission and duties
of commission. The most easily understood moral duties are those not to do something, i.e. don't
murder, don't rape, don't steal, etc. The callous passerby, however, would seem to have a duty to do
something -- jump in the water and save the boy. There are some fundamental differences between the
two kinds of duties. For a duty of commission to be binding, the agent must be able to carry it out. If the
passerby cannot swim, then he cannot be expected to jump in the water. Similarly, for a duty of
commission to be binding, the agent cannot be expected to excessively endanger himself. This is related
to ability, since excessive danger means that it may not be possible to effect the action. Ability and
possibility, however, are often problematic and matters of judgment. This blurs the nature of such duties,
despite the cases, like the callous passerby, that we can set up to be clear and unproblematic.
Matters get worse if we want to makes duties of commission matters of law, as in "good samaritan"
laws. The breach of a duty of omission results in a wrong of commission, and this usually results in some
physical evidence -- a dead body, missing property, abused victim, etc. This makes it relatively easy to
know that a crime has been committed, and also provides relevant evidence of the crime. However, a
breach of a duty of commission only results in a wrong of omission, which by its very nature produces
no causal effects due to the agent. This means we often will never even know that a wrong has been
committed. If the callous passerby walks on, and nobody notices, then the coroner's report will simply
read "accidental drowning," and no one, apart from the passerby, will ever think that a wrong was
involved.
This is important point to consider in relation to the nature of law. Someone who is prospecuted for not
being a "good samaritan" is not more guilty than the unnoticed callous passerby but is simply more
unlucky. Legal sanctions should not fall more heavily on the unlucky than on the guilty. That makes for
a bad law. Duties of commission, however, where we do not know about a prior positive obligation (as
from a contract, parenthood, office, etc.), are about matters that by their nature may produce no
evidence, or even evidence that a wrong has occurred, which means we can never know how many of
the guilty, evenly grossly guilty like the callous passerby, escape. Furthermore, since ability and
possibility cloud the nature of duties of commission, it becomes very easy to distort the evidence or to
unfairly second-guess an agent who, on the spot, must often make snap judgments about what he can do
in life-endangering situations. Prosecutors, as they now operate, go for convictions rather than the truth,
and they would be perfectly happy to portray a dangerous rescue at sea by Walter Mitty as no more
difficult than an Olympic swimmer pulling a baby out of a wading pool.
We see the potential for abuse of these ideas in the example of the last episode of Seinfeld. Since the
victim of the robbery himself exclaims that the robber has a gun, Jerry, Elaine, et. al. are under no
obligation to endanger themselves by trying to stop the robbery. Afterwards, they have a duty to remain
as witnesses to the robbery, but whether they would do this or not is not even put to the test. The
policeman who arrives at the scene arrests them for not having interfered with the crime. This, indeed, is
a case of a breach of duty by the policeman, who should be pursuing the robber, not arresting
bystanders. But we also see a possible motive: the policeman is unlikely to be shot by the bystanders,
but, if the robber really had a gun, the policeman might get shot by the perpetrator. This dynamic may
also be evident in what seems to be the preference of police to arrest usually harmless and passive
marijuana smokers, rather than the often violent and armed speed-freaks, angel dust users, and others.
Another case provides us with some different circumstances. In a poisonous cup of coffee, we again
have a difference between a wrong of commission, Tom poisoning his wife, and a wrong of omission,
Joe not giving his accidentally poisoned wife the antidote. Here the motive is the same in each case -murderous malice. It is not a matter of Joe being merely a "good samaritan." There certainly is a legal
difference between the two cases. Tom's action requires malice and forethought, the conditions for first
degree murder, while Joe's action is on the spur of the moment, presumably without forethought, making
it a case of second degree murder. The difference between commission and omission seems less
important, given the motive and intimacy of perpetrator and victim. Also, Joe's omission will not be
without evidence. If the police discover the presence of the antidote, Joe is going to have some awkward
explaining to do; and if he destroys the antidote, then this is a positive action, not an omission, to coverup the effect that he did intend, the death of his wife. Nevertheless, although this situation is more
grievous (because of the motive) and more provable (because of the evidence) than the callous passerby,
Joe's omission may make the case harder to prove, or even discover, if the investigators are not alert and
suspicious.
All of these examples that hinge on duties of commission are not really dilemmas, with alternatives in
balance, but get included because the complications that attend such duties make it more obscure what
the requirements of morality are. The dilemma is one of understanding rather than of choice. More
dilemma-like, but for extra reasons beyond those of the conflict of the right with the good, is a case like
the principle of psychiatric confidentiality. As a psychiatrist or a lawyer, it is one's legal, as well as
moral, duty to report the intention of a patient or a client to commit a crime. The difficulty for the
psychiatrist is evaluating the seriousness of the intention. A psychiatrist cannot go running to the police
to report every fantasy, but he is going to be fallible when it comes to picking and choosing. Mistakes
are going to happen, with tragic consequences. This is unavoidable, though some psychiatrists might be
sued for negligence if their evaluations seem incompetent.
Less challenging legally, but more challenging morally, is the general circumstance that a lawyer or a
priest is prohibited from divulging confidences about past crimes. A defense lawyer whose client
confesses must go into court and do everything in his power to win the case, or a conviction may
actually be reversed on grounds of attorney misbehavior or incompetence (British practice, as we see in
the Rumpole quote above, appears to be different). The movie Devil's Advocate [1997] presents the view
that a lawyer (Keanu Reeves) who does his professional duty to defend a client he knows to be guilty
has done wrong to a degree that may open him to Satanic (Al Pacino) temptation. However, Reeve's
determination at the end of the movie not to defend his client so competently is what is wrong.
For priests and lawyers the ordinary requirements of morality are modified on the basis of a "greater
good" in our familiar "right versus good" pattern. The greater good for the priest is salvation and divine
justice. This easily trumps considerations of earthly justice. The priest need not worry that a perpetrator
will get away with anything. Before God, justice will be done. A lawyer may be less certain that justice
will be done, but his professional confidentialty is based on what is needed to protect the innocent, i.e.
ensure the best defense for innocent suspects. It is not enough that the priest or the lawyer gain their
knowledge of guilt just because of the agreement not to divulge it, for in any other case no mere promise
of confidentiality is enough to override the duty to report crime and see that justice is done (as in the
value of a promise). A contractual agreement to conceal knowledge of a crime would be an invalid
contract (to be enforced, it would have to divulge the existence of the crime) and could well make the
contractor an accomplice after the fact, if he takes some positive action to help conceal the truth. The
considerations for priests and lawyers must therefore be weightier, and they are. In the case of the
lawyer, the moral imperfections of this arrangement are similar to the considerations for duties of
commission: not every duty makes for good law, and not every wrong can be fairly redressed by laws.
The human condition, which is ignorance and fallibility (especially for those in authority, deceived by
their own, as Shakespeare says, "insolence of office"), is what makes the presumption of innocence a
good principle, what makes good samaritan laws bad laws, and what makes attorney confidentiality a
good basis for the protection of the innocent, allowing that the lay citizen will have the protection of the
law beyond his own familiarity or understanding of it. These are the kinds of dilemmas that arise from
our limitations, not from the structure of value itself.
Duties imposed by contractual arrangements do not always, of course, change the existing
characteristics of moral duty. Thus, the problem of the partiality of friendship is stated without even
taking into account the duty that Jim has to protect the interests of "his firm." It is not just that he should
be "impartial," but that he should be partial as a representative of his employer. Maybe he doesn't like
the employer. Maybe his doesn't like his job. Maybe he thinks that a business is something that nobody
needs to be loyal to, in which case he should promote the interests of his friend. Such attitudes, however,
will not be good for the business, and Jim might end up getting fired for not doing a good job (unless his
job is in France, where it is difficult to ever fire anyone).
Another unmentioned aspect of this situation, however, is that Jim knows his friend and thus knows
things about him that he would not know about another applicant, even if the paper qualifications of the
other applicant look better. In economics, "knowledge costs" means the cost or the difficulty of
acquiring knowledge about relevant things, like the abilities of a worker. Since Jim knows his friend, he
may know that the friend is reliable and a good worker, which may be harder to know about the other
applicant -- especially when businesses have stopped mentioning negative things in their
recommendations, for fear of getting sued. Jim's personal knowledge thus can be a very valuable thing
and can make hiring his friend a prudent move for his firm. On the other hand, if Jim knows that his
friend is not a reliable worker, and simply wants to hire him as a way of bestowing a benefit on a friend,
then he violates his fiduciary responsibility to his employer.
But again, if the business is Jim's (wholly owned) business ("his firm"), then he can do whatever he
likes. He can give the job to the friend, even knowing that the friend is not a very good worker, just
because he does want to bestow a benefit on a friend. This violates no duty, but may simply be an act of
imprudence. It will not even be that if Jim otherwise runs the business in a prudent and profitable way.
Jim may simply wish to use some of his profit margin to help his friends, as other businesses give some
of their profits to charity.
In this case, again, the dilemma-like quality of the problem is clarified when the nature of the
obligations involved are understood. This was ambiguous in the way the partiality of friendship is
presented.
The Emotions
In traditional philosophy the emotions are passions, i.e. passive states, as opposed to actions, which are
behaviors. In life, action often seems to bubble out of strong emotion, but it can be resisted, which seems
to indicate that emotion and will are separate but related sources of action. Action from a purely
detached, "cold blooded," passionless decision is conceivable but perhaps rare, since any matter that
engages the self sufficiently to fix one's attention, and intention, is likely to involve some emotion,
however mild. The "cold blooded" killer seems, and is, more horrible than someone acting out of strong
emotion. Such a person seems inhuman, just because of a sense that he is pathologically detached from
human feeling and operating more like a mere mechanism. Emotional involvement implies that
something means something to the person, and perhaps involves some suffering. The cold blooded
killer thus acts as though he doesn't even care, one way or the other, neither suffering nor aware of
suffering.
Emotions are feelings but not sensations. Sensations are localized in the body and tend to provide
perceptual or physiological information. Sensations can simply be feelings of touch, or of pleasure, pain,
hunger, thirst, satiety, sexual arousal, etc. Emotions are systemic and, while causing physiological
reactions (and so sensations), are not localized -- they are states of the self, not of the body, although
immediately affecting and reflected in the body. Thus, one has a pain in the toe, or pleasure in the
genitals, but happiness or sadness everythere. At the same time, although pleasure is primarily a
sensation, "taking pleasure" in doing something is an emotional state which can be connected to many
kinds of activities. Similarly, although sexual arousal is a sensation, lustfulness can be an emotion
existing with or without any actual arousal.
Since emotions are not acts of will, they are not freely chosen, but occur spontaneously, which is why a
"crime of passion" is less severe than a crime of calculation, as less under control of the will -- and it is,
of course, acts of will that are morally praiseworthy or blameworthy. Cold blooded action, although
simultaneously judged as inhuman, is ironically more open to moral sanction, which is exclusively
human. Nevertheless, the occurrence of emotions is bound up with attitudes, situations, and knowledge,
all of which can change quickly, altering the emotion just as quickly. Thus, discovering that a presumed
enemy was actually acting as a friend can turn anger and hatred quickly into remorse, gratitude, and
affection. Although emotions may accompany attitudes (pride), not all attitudes (alertness, stubbornness)
are emotions. It is noteworthy that of the seven deadly sins, some are vices, i.e. habits and attitudes, with
emotional content (envy, wrath), some without (gluttony, sloth).
The cognitive and situational component of emotion means that emotions are as varied as the
circumstances of life, which means that the range and variety of emotions is great and complex -- as can
be seen in the accompanying tables at left and right. It is unlikely that a system of emotions could do
justice to the complexity, though in general emotions are thought of as positive or negative, good or bad.
The valence may be due to either an inward or an outward circumstance: A feeling of pride may be
vicious, when a person is proud of something wrongful or shameful, while anger, often thought of as
intrinsically negative, may nevertheless be properly directed at something wrongful, shameful, or evil.
Fear and horror are bad, not because of anything in the self, but because of the danger posed by, or the
evil represented by, some object. Wonder and awe similarly refer to objects, often to some sublimity or
surprising complexity in them.
The metaphysical framework for the emotions can be provided by the theory of positive transcendence
in The Origin of Value in a Transcendent Function. There it was concluded that sensation as such was
transcendent (the positive content of transcendence) and that pleasure and pain were intuitive forms of
sensation as value. Sensation, pleasure, and pain, however, are causally conditioned phenomena. Pure
forms of objective value -- right and wrong, good and evil, and the beautiful and the ugly -- were then
examples of "unconditioned" positive transcendence, purposive value, intrinsic to objects. Now it can be
observed that the emotions fit in between these metaphysical extremes. They are, as noted, not
sensations, and so are relatively detached from the body, but they are also in part causally conditioned
and so undoubtedly in and of the body, unlike unconditioned value -- as the heart may begin to beat
heavily with strong emotion, emotion is often felt as seated in the breast. On the other hand, they are
also, as also noted, responsive to and expressive of cognition, and so to purposive value that is
recognized in the self or in objects. Emotions thus bridge the ontological and cognitive gap between
sensation, or pleasure and pain, and purposive value. They combine and bridge the causal and the
cognitive, the subjective and the objective, the immediacy of self and the mediacy of representation.
Morality, Justice,
and Judicial Moralism
The worst edict that can possibly be imagined...An edict that permits liberty of conscience,
the worst thing in the world.
Pope Clement VIII on the Edict of Nantes, 1598, by which King Henry IV of France declared that
French Protestants, the Huguenots, were (mostly) free to practice their religion. Revoked by King Louis
XIV in 1685.
...and surely it is better for the world that men should be right from wrong motives than that
they would do wrong with the best intentions. What concerns society is conduct, not opinion:
if only our actions are just and good, it matters not a straw to others whether our opinions are
mistaken.
Sir James Frazer, Psyche's Task [1909]
"...and in daily contact with her without feeling a passionate regard for her. Do you blame
me, Mr. Holmes?"
"I do not blame you for feeling it. I should blame you if you expressed it, since this young
lady was in a sense under your protection."
Sherlock Holmes, "The Problem of Thor Bridge", The Case Book of Sherlock Holmes [Sir Arthur Conan
Doyle, 1927]
The crucial role of self-exaltation underlies the way that those with opposing opinions are
viewed. It is not sufficient, for example, to depict those who believe in preserving peace
through military deterrence as mistaken, factually incorrect, illogical in their analysis, or
dangerous in their conclusions. All of those things, even if true, would still leave them on the
same moral plane as the anointed visionaries and would leave both subject to the same
requirements of evidence and logic, as their arguments are laid before others to decide. What
is necessary, from the standpoint of self-exaltation, is to depict proponents of military
detererence as not "really" being for peace, as being either bloodthirsty or acting as venal
representatives of special interests who desire war for their own ends.
Thomas Sowell, The Quest for Cosmic Justice [The Free Press, 1999], pp. 138-139
If there were a modern Spanish Inquisition in America today, it wouldn't be Bob Jones
rounding up Catholics. It would be liberals rounding up right-wingers and putting them on
trial for hate crimes. The liberal Torquemadas would be smug and angry and self-righteous.
And when they were done, they would proudly announce they had finally banished
intolerance.
Ann Coulter, Slander, Liberal Lies About the American Right [Crown Publishers, 2002], p.196
Morality can be distinguished from law or from justice according to the way in which the latter is
publicly enforced and sanctioned through the power of the state, while the former is regarded as a
private matter where wrongs are to the moral discredit of a person but not such as to allow legal recourse
for those wronged. Complaints are often made about the absence of such a distinction, that virtue or
morality cannot be or ought not be legislated, or about its presence, that the decline of private morality
calls for a public and legal remedy. The distinction is real enough, and its presence reveals another
boundary between polynomic domains of value.
The difference between morality and justice comes not from the difference between actions and
consequences (as between morality and euergetic ethics) but from the difference between motives and
actions. As Kant noted, the worth of moral action is in the intention, not in what is actually done. The
imperative of morality is first of all to act with good will. Even the best of good will, however, does not
necessarily produce right action -- the saying is that the path to hell is paved with good intentions. And
even ill will does not necessarily produce wrong action -- it is really an ad hominem fallacy to evaluate
an action on the basis of an agent's motive. The estimation of justice does not primarily concern
intentions but what actually is done. There is no breach of justice unless some wrong of negligence,
violence, or fraud has been committed (in law the actus reus). Intention then may become an issue in
judging the culpability or severity of the wrong (the mens rea), as between various degrees of murder,
where intention, malice, and forethought progressively increase the severity of the crime (to voluntary
manslaughter, second degree murder, and first degree murder, respectively). If no wrong is committed,
then it is not an issue of justice and motives are irrelevant. Even undoubted wrongs of action may be
"merely" moral if they are not very severe or are intrinsically difficult to prove: willful breach of an
informal, oral promise for no good reason will always be a moral wrong, but only if some serious
financial loss (or damage to public standing) or physical (or even severe enough psychological) injury
results will it be a breach of an actionable "oral contract" and so a judicial wrong. Breach of promise
will always be morally actionable in the sense of voiced moral reproach or damage to personal
relationships.
ETHICS
MORALITY
WILL
Morality of actions, right and
wrong: ethics of justice;
Morality of intentions, good
and ill will: ethics of intention evaluation of actions in their own
and virtue; moral evaluation of right; causes of judicial penalty
and retribution: Imperatives -intentions; "mere" morality:
commands
Imperatives -- commands
Euergetic Ethics, the good and the
bad: non-moral worth in human life,
the good of teleological ethics, the
worth and meaning of life -- things
good-for-us: Hortatives -exhortations
Graphic Version of Table
The ultimate moral evaluation of an action concerns the intention. Many actions innocent in themselves
may be immoral because of the motive. That motive may be difficult for other persons to know. It may
even be impossible for others to know: thus the emphasis (as in the example cited by Jesus of adultery
committed in the heart -- Matthew 5:27) is that morality is morality even if wrongs are known only to
the agent (and to God). The moral sanction of religion, therefore, is a much different matter than the
moral sanction of law. The right of privacy (and the right against self-incrimination, where a judicial
wrong has been committed and the state must prove culpable motive) protects the individual's self-
knowledge of motive from the law and the state. Individuals are properly at legal liberty to pursue
actions that are not judicial wrongs for good reasons, bad reasons, or no reasons; and the morality of
those actions is a private, personal matter, or a matter of interpersonal judgment on a level of "mere"
morality.
The absence of a distinction between morality and justice is a kind of moralism. The principle that all
moral wrongs should be legally sanctioned as judicial wrongs, erasing the distinction between morality
and justice, may be called judicial moralism. Usually this means generalizing the morality of intention
into the morality of action rather than the opposite, which would simply evaluate actions as right or
wrong, without qualifying the judgment by any consideration of motive or intention: although this does
happen -in tort law it is called "strict liability," and some legal
MORALITY=ACTIONS
scholars, including Richard Epstein, believe all torts
judicial moralism
should be interpreted according to strict liability.
de-moralized
However, strict liability would also make things much
Morality, right and wrong:
WILL
easier for prosecutors in criminal cases, and it is now
justice; evaluation of actions;
[intentions and causes of judicial penalty and
becoming common for laws to be passed that ignore
motives do not retribution
motives and intentions (the mens rea). Thus, "money
count]
laundering" laws, which require reporting to the
government the transfers of certain amounts of cash or
Imperatives -- commands
bearer financial instruments, although supposedly written
to catch drug dealers and their agents, are typically enforced against innocent people who are either
ignorant of such an obscure law or who do not believe their financial privacy in the course of innocent
transactions is any of the government's business. But it doesn't matter how innocent the money or the
motives are. This trend in criminal law is, of course, a monstrous and despicable act of tyranny and
injustice.
Judicial Moralism as the generalization of intentions into all of morality has been much more common.
Religions have typically been guilty of such moralism, and have controlled or pressured political
authorities to enforce it; but there has been no lack of purely secular ideologies, from the French
Revolution to Communism to present Political Correctness, that have tried to enforce their views as a
political program apart from any religion.
Judicial moralism thus tends to be a characteristic of both
MORALITY=INTENTIONS
religious moralism and political moralism. Furthermore, each
judicial moralism
characteristically becomes a way of morally judging, not just
WILL=MORALITY
actions and even intentions, but beliefs. That is because good or
bad intentions always go with beliefs about what is good or bad. Morality, good and ill will:
intention and virtue; all moral
Since judicial moralism collapses intention and act, the actual
evaluation only of intentions [actions
requirement of justice to act justly is transferred to the mental
state. What is the proper moral issue in that state is good or bad
Moralism of deMoralism
of
moralwill; but for judicial moralism more is required than that, since
feeling:
belief:
ized]
good will doesn't have anything like the content, structure, or
Certain
Certain
definiteness of a good or bad act. Consequently, judicial
feelings are
things must
moralism focuses on the beliefs that condition the will,
forbidden or
be believed
something as definite in the mental state as the act was
required
externally. Thus the moral requirement becomes one of correct
Imperatives -- commands
belief (the actual meaning of the Greek word orthodoxía -orthodoxy) as the sign of good will. Incorrect belief then obviously signifies ill will, and all the
commendation and reward or condemnation and punishment that should only focus on good or bad
deeds instead becomes focused on these correct or incorrect beliefs.
In denying judicial moralism we affirm that it cannot be a moral duty to believe any particular
propositions. Morality requires us to mean well and to do what is right, but belief in good will and good
faith is about truth, which has its own standards of evidence and justification, not about meaning well or
doing anything. As Thomas Jefferson said, "The opinions and belief of men depend not on their own
will, but follow involuntarily the evidence proposed to their minds." It cannot be a duty to believe what
is true because whatever is believed is already believed to be true, because the evidence, experience, or
authority upon which one's beliefs are based are reasonably to be changed, not by some independent act
of moral will, but by demonstrably better evidence, experience, or authority, and because it is always a
good question just what is true and just what is better evidence, experience, and authority. The only
thing that can be a duty is to try and find out what is true and then to be steadfast in the truth as that is
understood; but that very steadfastness may be perceived as wickedness by others who are differently
persuaded by their understanding. It was because of judicial moralism that the Catholic Church argued it
was a moral duty for Galileo to confess that the earth was at the center of the universe, why Pope
Clement VIII abhored both the Edict of Nantes (see above) and the whole idea of "liberty of
conscience," and how even today some people argue against the Darwinian theory of evolution simply
because they think "survival of the fittest" makes for unacceptable moral consequences in society.
Furthermore, in denying judicial moralism, not only cannot we say that it is a moral duty to believe
propositions about possible matters of fact that are open to question and to rational or empirical testing
or determination, but we cannot even say it is a moral duty to believe propositions about matters of
value or about the nature or content of morality itself. Thus, although the moral consequences of the
views of Friedrich Nietzsche are very bad, he does not seem to have been a bad person himself and
cannot be morally condemned just for thinking mistaken thoughts. Martin Heidegger, of course, is
another matter, since his actions as well as his thoughts are at issue. A person who means well and
whose actions are above reproach but who professes moral views that seem to us mistaken is not to be
punished but to be persuaded. That is our duty. We may fear that they will end up doing wrong because
of their beliefs, but if only beliefs are in question, the only remedy is the truth as we understand it. If we
cannot persuade them, we must even be sensible of the possibility that we are wrong rather than they. If
our real duty is to find out the truth, then intellectual complacency and self-righteousness are moral
wrongs of negligence -- and anyone who thinks that they are less likely suffer from those failings than
their ideological opponents is a fool.
If we morally or legally condemn beliefs that are held in good faith and accompany no judicial wrongs,
we have created a category of "thought crimes."
That is an inevitable result of judicial moralism; and in its terms,
loss of freedom of speech is a small thing in comparison to loss
of freedom of thought. It is not surprising that the expression
"thought crime" began in the context of severe and totalitarian
political moralism, although the idea is as old as the concept of
heresy. And we don't need to read much history to find that
heretics were always regarded as the most depraved and vicious
of people, although historically they often seem less cruel and
vicious than their persecutors. Interestingly, Jesus says "You
will know them [the false prophets] by their fruits" (Matthew
7:16): not by their words, but by their deeds (as he continues at
7:21). The tendency, indeed, of judicial moralism is not only to
moralize and legalize beliefs but to demoralize actions: the deed
becomes relatively unimportant besides the willingness to
confess, affirm, and witness to orthodoxy, whether religious or
political. Someone of "sound views" becomes preferable even to
someone who refrains from wrong. As Paul Johnson says of
MORALITY=INTENTIONS
judicial moralism
WILL=MORALITY
Morality, good and ill will:
intention and virtue; all moral
evaluation only of intentions
Moralism of
belief:
Certain
things must
be believed:
thought
crimes
Moralism of
feeling:
Certain
feelings are
forbidden or
required
[actions
demoralized]
Imperatives -- commands
Lenin in Modern Times [HarperPerennial, 1991], "He judged men not by their moral qualities but by
their views, or rather the degree to which they accepted his" [p.51]. Thus George Orwell wrote:
Actions are held good or bad, not on their own merits but according to who does them, and there is
almost no kind of outrage -- torture, the use of hostages, forced labor, mass deportations, imprisonment
without trial, forgery, assassinations, the bombing of civilians -- which does not change its moral color
when it is committed by "our" side. [Quoted by Paul Hollander, The Survival of the Adversary Culture,
Transaction Publishers, 1991, p. 123]
The principal justification for attacking beliefs instead of actions and for making rules against good faith
speech, when laws already exist against violence, vandalism, etc. (judicial wrongs), is that such beliefs
cause such actions. We must get at the root of things, after all, the argument might go. But besides the
moralism of such an approach, to morally condemn beliefs as such without addressing their claim to
truth, this approach is deeply dehumanizing and irresponsible. That people act from certain causes is a
judgment made by science but not normally by morality, since morality holds persons responsible for
their actions and intentions regardless of the causes, unless they are to be judged actually incompetent.
The insane act out of causes that relieve them of moral responsibility. It is then particularly paradoxical
to morally condemn someone for having acted on the basis of a cause that nevertheless is to be treated
more like a disease or a tumor to be excised, through authoritative therapy (re-education, etc.), than like
an adult, competent belief to be answered with rational argument and knowledge. Reducing people to
the puppets of causation not only completely erases their moral dignity, autonomy, and rationality but
substitutes an authoritarian, totalitarian source of standards that in principle must be accepted without
argument or objection.
The category of thought crime has recently been revived in American colleges and universities in the
"political correctness" movement, whose major project has been to write and enforce speech codes
(which, for public institutions, are then typically thrown out by the courts as unconstitutional). The
public justification for such codes has been to fight hate crimes and to punish hate related insults,
harassment, assaults, vandalism, etc. The motive for such codes and the practice of their application,
however, often seem to amount to simple hostility towards opposing political beliefs. They embody a
judicially moralistic ideological animus that is willing to vilify and stigmatize even reasonably argued
political opinions, and people, as racist, sexist, homophobic (expanding limitlessly into a circus of
political crimes, "classism," "lookism," "sizeism," "speciesism," "orientalism," etc.). In short, they seem
to seek the criminalization of mere beliefs and the people who may express them in good will and good
faith. In that project terms like "racism" and "sexism" become no more than chanted slogans used for
smearing opponents and for eliminating the need for argument or debate, since of course no one need
take the views or persons of racists or sexists, etc. seriously. They deserve, like neo-Nazis and
Klansmen, to be driven out of honest venues (like colleges, universities, and the media) and prosecuted
for the damage their ideas do. The only escape from such condemnations is to become "re-educated" or
"sensitized" and affirm the politically correct line without reservations. The political correctness
movement, consequently, represents the continuing threat of judicial moralism to free thought and free
speech. Fortunately, even most politicians recognize the totalitarian origins of this movement, although
supposedly educated academics often don't.
Similar to the judicial moralism of commanding or condemning beliefs is a judicial moralism of
commanding or condemning feelings. It can be no moral duty to feel a certain way since feelings are not
voluntary and cannot be "corrected" through an act of will. Thus, Aristotle said, "Again, we are not
angry or afraid from choice, but the virtues are certain modes of choice, or at all events involve choice"
[Nicomachean Ethics, Book II, v, 4, Loeb Classical Library,
Harvard U. Press, 1926-1982, pp.88-89].
MORALITY=INTENTIONS
Nevertheless, in this, traditional morality often misleads us. We
judicial moralism
find both Leviticus (19:18) and Jesus commanding love of
WILL=MORALITY
neighbors and enemies (Matthew 5:44), and Jesus forbidding
anger (Matthew 5:22). Confucius also simply commands, "Love Morality, good and ill will:
others" (Analects XII 22:1). Not only is this basically impossible intention and virtue; all moral
but it leads to a inappropriate guilt, when it cannot be done, that evaluation only of intentions
is morally damaging. The genuine moral concern about anger, as
Moralism of [actions
Moralism of
dein our concern about someone's temper, is if it leads to
feeling:
belief:
moraluncontrolled behavior, i.e. violence and judicial wrongs of
Certain
Certain
ized]
action. All sorts of feelings -- anger, liking, dislike, love,
feelings are
things
must
sympathy, hatred -- can go with either good intention and right
forbidden or
be believed:
action or bad intention and wrong action. In other words, the
required:
thought
imperative of morality is to mean to deal justly and to do so,
"hate"
regardless of one's feelings. This is sometimes confused by the crimes
crimes
way that "hatred" and "ill will" can be equated with meaning to
Imperatives -- commands
do harm and so with bad moral intention. However, few would
evaluate their hatred or ill will towards Hitler or Stalin as
involving an immoral intention (although according to Jesus it actually would). Our assumption is that
evil persons merit hatred and ill will and that this is not to morally wrong them or maintain an immoral
intention. Our hatred is because they deserve harm as just retribution for their wrongful actions
(although this again violates Jesus's injunction not to judge, Matthew 7:1). Intending them harm is
therefore simply to desire retributive justice. Since feelings actually are caused, often by certain beliefs,
condemnation of feelings also becomes a way of indirectly condemning beliefs. Treating the "causes" of
hatred thus can become the authoritarian "re-education" of political thought crimes.
Moralizing feelings may become a problem when we identify certain acts of violence, vandalism, etc. as
"hate crimes." "Hate crimes" form a legitimate moral and legal category, but the proper formulation of
the matter is obscured by the way in which it is usually presented and discussed. In any crime malice can
be an aggravating factor. This is just what distinguishes murder from manslaughter. A "hate crime,"
however, is one where some specific source of malice is of concern, namely, hatred based on ethnicity,
race, religion, national origin, or differences of sex or sexual preference. Malice for those reasons, and
not for reasons of hatred of individuals, is now often considered particularly aggravating as much for
reasons for social policy as for reasons of moral culpability. The laws are especially intended to
discourage ethnic, racial, etc. hatred because this is considered a social problem, and because of the
modern confusion that private individuals can violate the "civil rights" of others ("hate crime" laws are
often proposed as federal "civil rights" legislation). But if the purpose of such laws is thus some social
end, it is questionable whether it is in accord with justice to magnify a punishment for some purpose
other than just retribution. It is also questionable whether increased punishments will effectively serve
their social purpose any more than draconian punishments ever have. After all, it is actually an argument
against the death penalty that even the prospect of death does not really deter murderers.
While we may very well see malice motivated by hatreds as a morally and judicially aggravating
condition in crimes and use a principle that there are special "hate crimes," if some "hates" are singled
out over others for political reasons, this puts us onto ground perilously fraught with the possibility of
judicial moralism. The abuse of this principle is easy, especially when the rhetorical sophistry is always
handy that criticism of the category of "hate crimes" is the same as condoning the wrongful acts of
violence, vandalism, etc. that it concerns. On the other hand, what we are dealing with in hate crimes is
really not a matter of "hate" at all. The moral violation of attacking someone because of their ethnic or
racial identity is actually not a violation of right based on belief or feeling. Calling such violations "hate
crimes" introduces a misdirection into our analysis. For the right perspective, we must consider some
circumstances under which the belief and the hatred are justified, as in the feelings that Jews might have
for Germans, Armenians for Turks, Irish for British, Chinese for Japanese, Lithuanians for Russians,
Sikhs for Moslems and Hindus, etc., all based on real historical crimes that resulted in the deaths of
many of the aggrieved groups. Germans really did kill Jews, Turks Armenians, Japanese Chinese, etc.
So does that mean that it is morally acceptable, as retribution, that Jews could just start killing Germans,
and so forth? Of course not. Members of a group of people, of any kind, are not responsible for crimes
committed by some other members of the group. While we may see a group, in a general way,
committing crimes, those responsible for the crimes are those who actually perpetrate them, not others
who do not perpetrate them, especially when the non-perpetrators may be members of the group in the
distant future. The moral principle, then, is that the retributions of justice, whether formal or irregular,
can only be visited on actual responsible individual perpetrators. A "hate crime" is consequently not an
error of hate or of belief but a moral error of singling out some individual as worthy of attack, not
because of some wrong he is known to have done himself, but because of some wrong some other
member or members of his group are believed to have done.
If that is so, then it should be clear that the remedy for "hate crimes" cannot always be to try and get
people to stop hating each other. No amount of education is going to get Armenians to stop hating the
Turks. Indeed, real education is liable to intensify the hatred, once the facts of history are known, since
people tend to forget the details of crimes in the past. Thus we should be suspicious when we see that
with the magnified punishments for hate crimes (which to an extent may be appropriate for the
fundamental nature of the moral error involved) also go programs designed to eliminate ethnic, racial,
etc. hatreds through education, sensitivity training, etc. The assumption is that simply knowing enough
about other ethnic groups, or life-styles, etc., will remove the conflicts. It may well be that in cases of
baseless bigotry knowledge of the simple truth will make a difference, but to generalize this to all cases
of hatreds and conflict involves incredibly naive and ahistorical assumptions; and it clearly involves a
formulation of the category of hate crimes that heads it in the direction of judicial moralism of belief and
of feeling, instead of in the proper direction of respect for innocent individuals. Half the trouble in the
world today seems to involve peoples who have lived with each other for centuries and certainly know
each other all too well: Catholic and Protestant Irish, Moslem and Hindu Indians, Greek and Turkish
Cypriots, Serbs and Croats, Christian and Moslem Bosnians, Armenians and Azeris, Tamils and
Sinhalese, Basques and Spanish, Tibetans and Chinese, Eritreans and Ethiopians, etc. Where we find
unity among diverse people, it is always because of some overriding loyalty: Malcolm X found blacks
and whites at peace together on the pilgrimage to Mecca because of the cultural and religious unity of
Islâm. Moslem pilgrims even wear the same clothes.
But today, it is often claimed that harmony results from emphasizing differences and diversity and even
denying that there is or ought to be anything that imposes some overall ("hegemonic") unity. This is an
ignorant prescription for nothing but increasing conflict and hatred, wherever it is applied. Differences
breed aesthetic variety, and aesthetic variety (even apart from histories of crime and conflict) breeds
likes and dislikes, even loves and hates. That is the aesthetic truth of human life and is perfectly innocent
in itself. Those dislikes, etc. can only be suppressed by the most ferocious anaesthetic or judicial
moralism, which will persuade few and have little enough effect in any case. Even without serious issues
of conflict, culture and "lifestyle" will always be inevitable hinges of aesthetic preference. The unity, in
turn, which is the only hope of peace and justice, is the principle of morality itself, the respect for the
autonomy of others regardless of likes and dislikes, loves and hates, cultural or ethnic identity, or
personal practices. The project of morality is to clearly distinguish those things, not to judicially
moralize the aesthetic dimension of feelings and preferences. To appreciate the beauty of another culture
can be a major hortative good, but it cannot be a moral imperative. Confusing justice with aesthetics all
too easily has the unintended consequence, not of morally abolishing hatred, but of moralizing hatred
into fanatical and violent self-righteousness.
But if Jews or Armenians do not have the right to attack Germans or Turks, what if they do not wish to
associate with them? Well, we certainly can't make them. Or can we? What if Jews or Armenians own
businesses and don't want to hire or serve Germans or Turks? Right now they could be sued for
discriminating according to "national origin." Thus our laws as written actually try to force people to
associate with each other even if they don't want to do so and even if their reasons for not wanting to are
based on major traumas of history. We might say that they don't have any reason to hate specific
individual Germans or Turks any more than they have any right to attack them in retribution for the
wrongs of history, but that is precisely to commit the fallacy of judicial moralism of feeling: people are
going to feel the way they feel for whatever reason, and ill feelings for a group are inevitably going to
tend to be applied to all members of the group. Morality can only forbid the action, not the feeling; and
the actions that can be forbidden are only the ones causing harm through violence, coercion, fraud, or
negligence, not ones merely of a refusal to deal with or associate with someone. Freedom of association
lessens conflicts by allowed people who don't like each other to separate. Forcing people to associate
out of the notion that this is going to make them learn to like each other is not only tyrannical but a
formula for civil strife. In small, intensely controlled contexts, as in the military, this may work to an
extent; but we often see how conflict can still explode even under military discipline -- and it is a very
bad sign when political activists take comfort that society could be reformed if subjected to something
very much like military discipline.
The passion and violence that accompany religious and political moralism, and especially their
dimension as judicial moralism of belief and feeling, are as much with us as ever. The saying is that
politics and religion are not things people should discuss in polite company, but that simply is the result
of the difficulty we have in separating the evaluation of the truth of beliefs from value judgments about
moral or judicial worth. Here we can only labor to avoid judicial moralism and to attempt to review with
some dispassion the issues we consider, remembering that beliefs and propositions must be answered
with reason and evidence, not with self-righteous moral condemnation.
One category of "hate crimes" that the principle offered does not cover is that involving "sexual
preference." Crimes against homosexuals cannot be said to involve an error of thinking that the
individuals are not engaged in the practices that the group is thought to be guilty of, since practicing
homosexuals indeed engage in homosexual practices. Since the Bible itself mandates the killing of male
homosexuals and it is regarded by very many people as a proper source of morality, even of law, one
cannot say that all "gay bashing" is done in bad faith or merely out of malice. That the Bible is not a
proper source of secular law should now be obvious, but it is not to all persons of good will; and as
philosophers cannot agree on what the proper source of secular law and morality is (many asserting that
there is no proper source), the case for Biblical morality would tend to be strengthened in the eyes of
many.
If crimes against homosexuals do not qualify as "hate crimes," does this mean they are simply to be
allowed? Of course not. The idea of "hate crimes" merely addes an aggrevating factor to something that
is already a crime. When a young homosexual student, Matthew Shepard, was murdered in Wyoming,
in October 1998, there was a great outcry for more "hate crime" legislation -- and political
demonstrations which, of course, only influence politicians, not murderers -- but since such a murder in
Wyoming was already a capital offense, it is not clear what kind of added punishment a hate crime law
would add to the sentences of the perpetrators. Many in favor of vast "hate crime" legislation are
themselves opposed to the death penalty, and they certainly would never consider adding, for instance,
torture to any other kind of capital or prison sentence.
The distortion this introduces into public discourse is evident in the continuing news coverage given to
the Shepard case (plays and movies have even been produced about it), while the September 1999
bondage rape and murder of 13-year-old Jesse Dirkhising by two homosexual men in Arkansas has
received virtually no attention in the national media, except for conservative commentators. Just as the
Shepard case was promoted as evidence of such pervasive "homophobia" as to require federal
legislation, those persuaded of Biblical morality could easily offer the Dirkhising case as evidence of
pervasive crime by homosexuals. Neither view, of course, is true or proper. Local murders do not appear
in the national media unless the media think that some national issue is involved. The Shepard case
receives national attention, but not the Dirkhising case, because the national press accepts the
importance and the political agenda of federal "hate crime" legislation, while not acknowledging the
importance of conservative objections to homosexual practices. This is a political bias. The conservative
agenda, however misguided, is just as newsworthy as the leftist one that promotes the category of "hate
crimes" involving homosexuals. Either both or neither should receive attention in honest news coverage.
The disturbing truth is that the Dirkhising case largely has received no coverage because of the national
media bias that facts that might reflect negatively on homosexuals should be, not just under-reported, but
actually suppressed.
The truth is that in much political and academic thinking "hate crimes" are not really moral offenses at
all, which is why few advocates are ever troubled by the status of homosexuality in Biblical morality.
Instead, the advocates of hate crime legislation almost always see these as political crimes, not moral
crimes. Political crimes do not call for just retribution, but for punishments that are seen as instruments
of social engineering and political suppression, meaning that any punishment sufficient to the end is
justified. This dimension is also evident in feminism, which itself sees crimes against women as political
crimes -- since, for establishment feminism, everything is political. Thus, even a Republican Congress
passed the bizarre "Violence Against Women Act" on the principle that crimes against women were
federal "civil rights" offenses. Similarly, feminism thinks of crimes against women as themselves "hate
crimes," meaning that what is called "hate" is not really an emotion or a feeling at all -- not all battering
husbands, muggers, or even rapists, necessarily hate women -- but a politically incorrect
"consciousness," calling for the full weight of federal civil rights authority -- or for political
demonstrations, the kinds of things ignored by rapists but noticed by legislators. "Hate" becomes merely
a codeword for those violating a certain political program. Thus, the popular theory of hate crimes is no
longer even an example of possible judicialism moralism, but just a case of a larger political moralism;
and as such, it is not surprising that crimes against homosexuals are not seen as problematic, but instead
as obvious, candidates for the "hate crime" category.
The potential for misuse of the "hate crime" category has become evident in several recent cases. In one
of them, an Idaho man, Lonny Rae, was charged with "malicious harassment," a felony, for using the
"N" word. This was after an October 2001 football game between local high schools. The fans of the
school that lost became angry at the referees, as losing fans often do. Mr. Rae's wife, Kim, was at the
game as a freelance reporter and photographer. Because of the possible controversy about the referees,
she took pictures of the referees to go with the story. The referees didn't like that and asked her to stop.
One of them, who happened to be black, grabbed her camera and tried to yank it away from her. There
was a strap from the camera around her neck, so the camera didn't come away, but the strap left some
burns and bruises on her neck. When Mr. Rae was informed about this, he went down to where the
referees were going into the locker room and began shouting at the black referee in question, liberally
using the "N" word. Since arguably an assault had occurred on his wife, his anger is understandable,
even if his choice of vocabulary is less so. There was never physical contact between the two men.
Nevertheless, although no charges were filed for assault against the referee, Mr. Rae ended up charged
under the Idaho "malicious harassment" hate crime law, which carries a maximum penalty of five years
in prison. Since nothing had happened between the two men except Mr. Rae's speech, the only way such
an application of this law, which now has nothing to do with aggravating factors in some independently
defined unlawful act, could pass muster as not violating the First Amendment is if it fit in under the
Supreme Court's "fighting words" exception. With the provocation of the assault on his wife, however,
there is a serious mitigating factor about whatever Mr. Rae might have done while angry. The situation
was one in which the aggravation had already occurred. It is therefore fortunate that nothing worse than
angry words were involved. The niceties of First Amendment jurisprudence, however, do not seem to
have been of concern to the prosecutors, the judge, or the jury. The use of the "bad word" was obviously
the offense, all by itself, regardless of the circumstances. In February 2002 the jury, in fact, found Mr.
Rae innocent of the "malicious harassment" charge. The judge, however, had suggested that a lesser
charge of which he might be guilty could be "misdemeanor assault"; and the jury found Mr. Rae guilty
of this. The judge sentenced him to seven days in jail, although jail time for a first such offense is rare.
The judge evidently regarded the matter as sufficiently serious to warrant it. So now using a "bad" word
is equivalent to an assault -- which is no less than what "critical race theory" legal scholars, like Mari J.
Matsuda (Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment,
1993), have seriously proposed.
What is serious is the fact of an assault on free speech and the attendant decriminalization of a physical
assault. If Mr. Rae is someone who goes around gratuitously shouting the "N" word at black people,
then "harassment" is a description that comes to mind. This situation was nothing of the sort, and the
actions of the authorities and the court in penalizing the speech and ignoring the prior physical assault
betrays a judgment that political crimes are important while mere violent crimes are not. This, indeed, is
the tendency of a politicized jurisprudence slipping over into judicial moralism. Mr. Rae's speech
betrayed him to be the sort of person who is intrinsically in the wrong, just because of his attitude,
regardless of the nature of the events in question. As George Orwell would have said, he is not on "our"
side and so is deserving of punishment as a political criminal.
An even worse case is that of Janice Barton of Michigan, who was overheard in August 1998 using the
word "spic" in a private comment to her mother, about a group of people speaking Spanish leaving a
restaurant near them. In that group was an off-duty deputy sheriff, who heard the comment and wrote
down Barton's license plate number. Two weeks later Barton was arrested for "disorderly conduct," later
"insulting conduct," and finally a "hate crime." In this case we have a crime consisting of no more than a
bad word, and not even one directed at anyone thus characterized. Barton was actually convicted,
despite Supreme Court rulings that the only exception to the First Amendment in such a case would be a
use of "fighting words" likely to provoke a "breach of the peace." In November 2002 her conviction was
reversed by an appeals court, on the principle that this was "conduct she could not reasonably have
known was criminal." Usually, courts hold that "ignorance of the law is no excuse"; but in this case
ignorance of the law seems to have been the problem with the deputy sheriff, the prosecutors, the judge,
the jury, and the appeals court. What it looks like is that the appeals court knew that the conviction was
going to be reversed eventually, and so they wanted a pretext to avoid the embarrassment of the
Michigan "hate crime" law, if it allowed this conviction, itself being struck down.
In all cases like these, it becomes more apparent that the tendency of "progressive" legislation is a
totalitarian hostility to free speech and "politically incorrect" belief, a program that did not die with
Communism in 1991 but lives on in the political left of American universities, law schools, and trendy
opinion. The consequences of this are already pervasive in distorted civil rights law.