Should the Criminal Justice System Be Abolished?

Much of jurisprudence is based on logic founded on faulty premises of regurgitated theological concepts shrouded in naturalistic theory and pseudoscience. This is not about the defund the police social trend of 2020. This is to say that the justice system is smoke and mirrors writ large. It’s ostensibly built on anachronistic concepts such as volition, evil, soul, blame, and forgiveness that should be tossed into the dustbin of history along with phrenology, humours, and will.

The titleof this post is taken from Robert Spapolsky’s proposed chapter concept for Behave, published in 2017, where until now, it’s languished on my Want to Read list, having entered via the vector of my interest in behavioural economics. Chapter 16 was eventually published with the title of Biology, the Criminal Justice System, and (Oh, Why Not?) Free Will.

I’ve been writing for years about the nonesensical attachment to these notions, so it gives me comfort in solidarity to discover others who share, at least to some degree my perspective, knowing, of course, that this doesn’t make this perspective any more correct.

To be fair, I’ve held a low opinion of so-called justice (and government) systems pretty much since I was taught about them almost 50 years ago. In the US, much teaching is really propagandising about how fair these systems are and how peers and reasonable persons concepts make is superior. In my mind, those were the being failings. Later, when I hopped onto my language insufficiency bandwagon, it only fell apart more. Kafka’s The Trial represents the internal workings of most justice systems than the logic and reason of propogated but proponants.

Stopping here. Much to do. I recommend reading Behave. If you’ve read it, I’d love to see what you thought about it.

Why the world does not exist

Markus Gabriel was brought to my attention, and I immediately thought of Lance at The Dog Walks.

In essence, part of his argument touches on the insufficiency of language, but his key rationale for this claim is anchored arount Kant and set theory. He published a book by the same name on this topic in 2015. This TedX talk is from 2013. I haven’t read it and am unlikely to do so in the near term, but it might be interesting if it expands upon the notion presented here.

Democracy in America

In the furtherance of my critique of Democracy, I’ve gone back to re-read de Tocqueville’s Democracy in America, an original critique, though with much promise at the time.

In the introductory chapter, de Tocqueville notes the tradeoffs democracy makes. Essentially, he recognises the mediocrity, but he senses it’s somehow worth it. I break up his paragraphs and italicise for emphasis.

I admit that, in a democratic State thus constituted, society will not be stationary; but the impulses of the social body may be regulated and directed forwards;

Here de Tocqueville presumes the metanarrative of progress and all it entails.

if there be less splendor than in the halls of an aristocracy, the contrast of misery will be less frequent also;

The middle class served this purpose, but this benefit is being eroded as the acquisitive classes have learnt how to game the system and pillage the public coffers.

the pleasures of enjoyment may be less excessive, but those of comfort will be more general;

Here he considers the masses, but he fails to distinguish them from the aristocracy, now manifest as the 1%.

the sciences may be less perfectly cultivated, but ignorance will be less common;

Literacy may be elevated under this system, perhaps owing as much to the needs of Capitalism than of Democracy. In the US, the pair are inextricable.

Here, de Tocqueville is spot on. I won’t defend science or progress, but if this is a goal, the post-truth era is testament to the need for cultivation. Science is like investing: there is a compounding effect. Failing to progress effects downstream advancements, not linearly, but geometrically.

the impetuosity of the feelings will be repressed, and the habits of the nation softened;

there will be more vices and fewer crimes.

Interesting point, but I won’t linger; vices are morality plays, and crimes are tautological—though I suppose he is hinting that the demos will consider fewer situations to qualify as crimes, and so they’ll be relinquished to the realm of vices.

In the absence of enthusiasm and of an ardent faith, great sacrifices may be obtained from the members of a commonwealth by an appeal to their understandings and their experience;

each individual will feel the same necessity for uniting with his fellow-citizens to protect his own weakness; and as he knows that if they are to assist he must coöperate, he will readily perceive that his personal interest is identified with the interest of the community.

The nation, taken as a whole, will be less brilliant, less glorious, and perhaps less strong

Alexis de Tocqueville

The nation, taken as a whole, will be less brilliant, less glorious, and perhaps less strong;

Indeed.

but the majority of the citizens will enjoy a greater degree of prosperity, and the people will remain quiet, not because it despairs of amelioration, but because it is conscious of the advantages of its condition.

Tocqueville gets partial credit for this insight.

If all the consequences of this state of things were not good or useful, society would at least have appropriated all such as were useful and good;

Tocqueville misses the mark a bit here, tripping himself up on a somewhat Utilitarian—if not Pollyanna—worldview.

and having once and for ever renounced the social advantages of aristocracy, mankind would enter into possession of all the benefits which democracy can afford.

But here it may be asked what we have adopted in the place of those institutions, those ideas, and those customs of our forefathers which we have abandoned.

The spell of royalty is broken, but it has not been succeeded by the majesty of the laws;

the people has learned to despise all authority, but fear now extorts a larger tribute of obedience than that which was formerly paid by reverence and by love.

Here de Tocqueville appears to suggest a citizenry that fears rather than reveres its government in classic Machiavellian splendour.

I perceive that we have destroyed those independent beings which were able to cope with tyranny single-handed;

the weakness of the whole community has therefore succeeded that influence of a small body of citizens, which, if it was sometimes oppressive, was often conservative.

the Government that has inherited the privileges of which families, corporations, and individuals have been deprived

Alexis de Tocqueville

but it is the Government that has inherited the privileges of which families, corporations, and individuals have been deprived;

Ever the Madisonian, de Tocqueville shows concern of the consolidation of power.

the weakness of the whole community has therefore succeeded that influence of a small body of citizens, which, if it was sometimes oppressive, was often conservative.

The division of property has lessened the distance which separated the rich from the poor;

Although there was more egality…

but it would seem that the nearer they draw to each other, the greater is their mutual hatred, and the more vehement the envy and the dread with which they resist each other’s claims to power;

…and Tocqueville was prescient here—, the enmity of the haves of the moneyed classes crashes full-force into the have nots as the fabric of separation becomes more and more threadbare, as with Samhain this weekend.

the notion of Right is alike insensible to both classes, and Force affords to both the only argument for the present, and the only guarantee for the future.

The poor man retains the prejudices of his forefathers without their faith, and their ignorance without their virtues;

he has adopted the doctrine of self-interest as the rule of his actions, without understanding the science which controls it, and his egotism is no less blind than his devotedness was formerly.

If society is tranquil, it is not because it relies upon its strength and its well-being, but because it knows its weakness and its infirmities;

a single effort may cost it its life;

everybody feels the evil, but no one has courage or energy enough to seek the cure;

Alexis de Tocqueville

everybody feels the evil, but no one has courage or energy enough to seek the cure;

the desires, the regret, the sorrows, and the joys of the time produce nothing that is visible or permanent, like the passions of old men which terminate in impotence.

Irrationality

I’ve not read nearly at a pace as I’ve done in prior years, and I’ve got a million excuses. I did recently start and stop Quine’s Pursuit of Truth, but I’ve just picked up Irrationality: A History of the Dark Side of Reason.

EDIT: I’ve since finished this book and posted a review on Goodreads.

As a former behavioural economist, it’s good to see the expansion of the position that the Enlightenment brought the Western world an Age of Reason, but it failed to see how little capacity most humans have for reason even regarding mundane affairs.

Have you ever stopped to consider that literally half of the population has less than average intelligence?

Some guy

Fundamental attribution bias is clearly at play, as the authors of these Enlightenment works were high-intellect individuals. I respect greatly the likes of Locke, Hume, Montesquieu, Rousseau, and their near contemporaries, but the world they envisaged was based on an invalid premise.

In the realm of governance, one might try to argue that Plato was trying to address this in his admonishment of democracy in favour of The Republic, but he, too, was incorrect, essentially not seeing principle-agent problems as well as predicating a system on the notion of virtue—naive, to say the least.

I’ve been tremendously busy in my day job, so I haven’t been able to contribute here as much as I’d like, but I’ve taken time to jot down this.

Stephen Hicks’ Strawman

I’ve been reading and listening to Conservative Stephen Hicks’ Explaining Postmodernism. He’s made it free on YouTube and as PDF. It’s important to note that the book is a decent read, but Hicks makes little attempt to remain in a neutral voice. It’s clear that he is critical of it, so his explaining is not to articulate to the generally interested; rather, it’s to impose his worldview on the topic matter. Read or listen, but keep this in mind. If you lean Conservative, you’ll eye-roll in unison with him; if you lean to the Left, the eye-rolls will have a different significance, as he mows down one strawman after another.

In this clip (bookmarked from the full audiobook), he attempts to make the case that postmodernists—which is as motley a crew as a group of atheists—eschew the notion of rationality for the comfort of feelings. Sure, I suppose some postmodernists do make this argument, but it is hardly a universal position. Taking myself as an example, I have no illusion that most people can register let alone understand their feelings.

I recall being in a corporate-sponsored (human resource-sponsored) interpersonal communications class where the instructor made the claim that one should defend your position by invoking feelings:

  • Your loud voice frightened me.
  • I feel sad when you shout at me.
  • I feel anxious when…

My reaction then is about the same as it is as I write: Whilst I may not understand what the other person may be feeling, there is little reason for me to believe that this person has identified and named this feeling. There is also little reason to presume this person is conveying to me a correctly-interpreted feeling in lieu of a more hyperbolic version for maximum effect. Moreover, some people seem to be offended by pretty much anything. And there’s one thing I’ve learnt along the way:

A person looking to be offended is pretty much guaranteed to be offended.

So, absent context, I have no reason to take this person at their word. Call me a curmudgeon, if you please.

Like Jordan Peterson, a personality who promotes Hicks, standing up and knocking down strawmen seems to be their raisons d’être, but this is sloppy philosophy and lacks the integrity these people claim to admire. In any case, forewarned is forearmed. Caveat emptor.

EDIT: The more I read of Hicks, the less I like it. He misunderstands or at least misrepresents postmodernism in a big way. I am not sure whether it is intentional or through ignorance, but a certain expected academic neutrality is absent to the brink of malpractice.

Here is a fuller critique of Hicks’ misrepresentation of Postmodernism.

Why it’s so difficult to unify modern politics

“The organization we call modern republicanism is based on multiple values and principles that conflict. We can identify at least five basic values of most modern republican political theories:

  1. popular self-governance by the political community
  2. individual liberties from government and social interference
  3. equality
  4. communal or national preservation, and
  5. economic and material modernization

“All of these matter; none can be ignored. But these values conflict. If you consistently emphasise or choose one over the other or pull on that thread, you move toward an exclusive political view of one kind or another.

“For example, if you emphasise self-governance over all other values and are willing to trade the others for more of it, you become a civic republican or a populist or a participatory democrat.

“If it’s individual liberties and rights, you value above everything else, a Libertarian, a neo-liberal, or a Natural Rights theorist.

“If it’s social equality, you become a progressive or social democrat or even a socialist.

“If it’s material progress above all, then you are probably an ethical utilitarian, believing the politic’s aim is to enhance general happiness.

“If it’s preservation of the forms of community life, then you’re a conservative.”

This is excerpted from the first chapter an excellent Great Courses lecture series by Lawrence Cahoon, The Modern Political Tradition: Hobbes to Habermas. (This PDF course guide provides a summary view.) It’s an interesting dimensionalisation of the problem with trying to reconcile politics into some unified theory, as it becomes necessary to optimise across these dimensions, some of which are polar opposites to other goals in a zero-sum relationship.

This series is available on Amazon as well as at Audible at good prices.

The Ones Who Walk Away

As a (slightly) more considered response to Marvin Edwards’ comment in response to a prior post: ‘I’m working under the presumption that “the best good and least harm for everyone” is behind every rule that our consequentialists have created…’, I wanted to bring to the forefront the adolescent-appropriate short story, The Ones Who Walk Away from Omelas (PDF). Among the key themes,  author Ursula K Le Guin paints a thought experiment that showcases the weakness of the foundation of Utilitarianism.

To summarise, Omelas is a utopian city, and the residents are copacetic—all but one. The one is a veritable scapegoat. The one suffers all of the pain, to create a system wherein the best good and the least harm could be experienced. Whilst the concept breaks down well before this scale, this thought experiment illustrates the absurdity of the claim. At a more basic (and classic) level, we can simply look at the various trolley experiments or the conceptual dilemma proposed in the scenario wherein some number—4 and 5 seem to be popular—of ill people may be saved at the expense of 1 healthy one.

At a more conceptual level, at its inception in the Age of Reason by Bentham and Mill, a time where Scientism was wrestling the reins from the Age of Superstition Scholasticism, utililty was thought to be able to be quantified and measured. As with other non-ontic concepts, it can’t be.

As with other non-ontic concepts, utility is specious. Like a Pointillist painting, it looks coherent at a distance, but upon any scrutiny, it becomes incoherent, and the best an adherent can do is to step back until it again feels rational, arguing that to get any closer is to make perfection the enemy of the good. But that’s not the point, to ask for a workable definition prior to engaging in discourse is not about perfection; it’s creating a common basis for discussion. Utility offers little utility.

Henri Cross - Three Nudes
Henri Cross – Three Nudes

Geuss Who?

A mate in an online forum turned me onto Raymond Geuss, who’s got just the perspective I’ve been looking for. I’ve felt that the concepts of rights and justice are weak on etymological grounds, but Geuss’ critique is even more fundamental. In his Philosophy and Real Politics, Geuss undercuts the positions of both Nozick and Rawls. I’ve never been a fan of Nozick, but I do consider (have considered) myself to be a bit of a Rawlsian.

Nozick is a key figure underneath Libertarianism, as this movement is very centred on rights. Opting for rights as his starting place as his preface to Anarchy, State, and Utopia:

Individuals have rights, and there are things no person or group may do to them (without violating their rights).” — Robert Nozick

As Geuss points out, Nozick ‘allows that bald statement to lie flapping and gasping for breath like a large, moribund fish on the deck of a trawler, with no further analysis or discussion, and proceeds to draw consequences from it’. In other words, Nozick leads with an unsubstantiated claim that ‘individuals have rights’, and then ‘advances’ his position tautologically.

As for Rawls, justice is his centrepiece. In his A Theory of Justice, the opening line is “Justice is the first virtue of social institutions, as truth is of systems of thought”. He merely starts from this emotional place and advances his theory based on this basis of justice, yet nowhere does he explain of defend why this should be the foundation. As with Nozick, Rawls simply conjures this out of thin air.

Justice is the first virtue of social institutions, as truth is of systems of thought.” — John Rawls

On top of this, Geuss comments on the shaky etymologic foundation of both justice and rights. Harkening back to the Latin origin of justice,

As Geuss writes, ‘To begin with the question of the concept of “justice,” it is striking how unclear this concept is in ordinary language and to what extent conceptions of justice differ from one context to another and in different human societies at different times. Thus at the beginning of one of the standard treatises of Roman law, the codification made for the emperor Justinian — one of the most influential texts in European history — we find that the very first sentence gives us a definition of “justice”: “iustitia est constans et perpetua voluntas ius suum cuique tribuens.” That is, justice is “the constant and unflagging will to give each person what is due to him.”

What have the Romans ever done for us?” – Monty Python

Then he goes on to clarify that “what is due to him” is radically different dependant on being a citizen, an alien, a slave, a woman, a minor, and so on. To simplify this, we are stuck in a tautological loop: one is due what one is due, as determined somewhat exogenously.

Rights don’t fare any better, being even more ambiguous, so I don’t feel so bad about pursuing the irrelevance of these virtue concepts on etymological grounds.

Utilitarianism

As I read his Utilitarianism, I want to like John Stuart Mill. He seems like such a clever man, but he is a victim of his Enlightenment Age. Attempting to fabricate order created by science’s encroachment on the absolutes of religion and the shifting sentiments toward monarchies, Mill tries to replace this moral compass with Jeremy Bentham‘s utility.

£1 ≠ £1

The problem is that despite (sort of) dispensing of religious doctrine, Mill was still fettered by the dogma of virtue ethics of dignity and duty. To this, he adds happiness. Not to go full-on Foucault, but these are concepts leveraged, like religion, to maintain power—take an elevated system in a constructed society, and the duty becomes a burden to the bottom, save for pretence of duty and dignity at the top.

I’ve had an issue with the concept of virtue and all of its offspring: duty, justice, and so on. I’ll likely write about this later. I expect that I’ll be reading Mill’s On Liberty next, so stay tuned.

Ignoring my contention that Utilitarianism is baseless, I have two other issues, using economic examples, each related to prospect theory (pdf):

  1. Regressivity: A person with less money values an incremental dollar more than a person with more money.

  2. Loss to gain asymmetry due to risk aversion: A person values losing a dollar more than earning a dollar, ceteris paribus.

Pareto efficiency, a cornerstone of Classical economics, does not take this into account. For this theory, all dollars are created (or perceived to be) equal, so it doesn’t matter whether person A, who earns £10,000 p.a., or person B, who earns £100.000 p.a.,  gets £100, but in the real world, person A would give it a higher value, so a transfer from A to B would be an inferior transaction to a B to A transaction.

This said, person B values the £100 more than having gained the amount, but it is not clear how to reconcile (in order to reach perceived parity) what the fair equilibrium would be, allowing that equality of outcome might not be the desired outcome.

Post-Post-Modern Subjectivism

I’ve just finished reading Steven Pinker‘s The Blank Slate. Originally published in 2002 (and re-published with an afterword in 2016), it still feels fresh. Pinker offers compelling rationale for accepting that humans are not blank slates entering the world.

Though I am somewhat of a social justice warrior in principle, I am still a moral subjectivist, a post-modern thinker. Pinker shares his strong feelings against subjectivism, but he provides no evidence of the moral objectivism he advances, relying instead on an emotional appeal; in fact, he employs the same defensive tactic his detractors employ, which is to try to make an empathic connection to the reader.

All he does is to claim that there is an objective morality because everybody feels and knows that X is better than Y, taking a strawman approach. It’s not that I disagree with his Xs and Ys; it’s just that they are subjective not objective measures. He tries to slip in an appeal to popularity by claiming that everybody would (or should) feel this way when push comes to shove.

Nietzsche, I think, had it right in Beyond Good and Evil when he pointed out the dual moral systems of masters and slaves. Although a moral (just) system might be best constructed from scratch in the manner of Rawlsveil of ignorance, we are not starting from a blank slate. The power structures are already in place. There is a possibility for upward and downward mobility, but large jumps are not likely except in the manner of a lottery. Other than this, it’s unlikely that one will move from one quintile to another and even less likely to skip a quintile, especially on the upward trend.

In any case, the issue is not whether some might feel subjectively better; it’s whether—across all possible dimensions—a relative, stable equilibrium can be found. Even here, this is not objective, even if it’s not otherwise arbitrary or capricious. The larger problem is one of epistemological empiricism—apart from the ontological question—, whether we can know that we’ve found the objective truth or if we’ve just settled on something that works for our current station.

As much as I really do like Steven Pinker, and I await his next book, Enlightenment Now, I do so only to read how he couches his argument in support of Enlightenment and Humanism, two concepts I feel are tainted by hubris