Quarantine and Social Justice

Gregg Caruso is interested in the notion of Agency from the perspective of justice, desert, and sentencing. This is applied philosophy.

My main argument against the possibility of free will is Nietzsche-Strawson’s causa sui argument, which I’ve touched on a few times by now, but I haven’t yet fully articulated my position. I’ll get to that another day. I’d also like to create another video, as I would like to do for this as I explore in more detail.

Ostensibly, this is a compatibilist view that leaves a modicum of free will, even with causa sui in place. I hope this illustration will be helpful.

In the centre of the illustration is you, the self of some arbitrary person who shall act as our subject. Let’s assume a couple of basic premises:

  1. We either live in a relaxed causal, deterministic or indeterministic universe.
  2. Causa sui is in full force and effect: one cannot cause any aspect of one’s self.

I include the term relaxed in the first premise, so I don’t have to deal with a fully deterministic universe governed entirely by the notion captured by Schrödinger’s equation. The second premise is in place to serve as a limitation: even if consciousness is an emergent property, its emergence doesn’t grant some insuperable metaphysical powers. One cannot reach outside of one’s self.

The scenario plays out as follows. You have been apprehended for violating some statute. Let’s say that you’ve taken an item from a retail store. As you are leaving the store, the police stop you. When asked if you took the item, you answer in the affirmative. This is a very efficient municipality, so you are taken immediately to a magistrate to make a plea.

In this scenario, Caruso is your attorney at law. His argument is that, given causa sui, you cannot be responsible for who you are. We’ve been here before. Since you can’t be responsible for who you are, any sentence to punish you would be unethical, as you’ve done nothing to deserve it. This is the notion of desert in the realm of retributive justice.

The judge buys this argument, but s/he counters with three possible courses of action. You may not be responsible for who you are, but we are a community of laws. You are a victim of your circumstances, so we cannot look backwards. For whatever reason—and through no fault of your own, by definition—, you were broken relative to complying with community norms.

Social Justice

Firstly, we may wish to make an example of you, to signal the community that we will incarcerate people who break the laws. This is more a public service purpose than a punishment.

Secondly, if you had contracted a communicable disease—we’re looking at you Covid—, you can be quarantined under the consideration of the common good. Framed this way, it is not a punishment, we just don’t want it to happen again.

Lastly, we may also be justified on the grounds of rehabilitation. I highlight the ‘re‘ in rehabilitation because some people may not have been ‘habilitated’ in the first place. Perhaps think of them as feral. In any case, a computer programming analogy might make sense here.

So what’s this all about? Remember, causa sui says that you cannot be held responsible for creating yourself. The claim is that you are a product of your nature and nurture. Genetically speaking, perhaps there was some reason that you could not incorporate inputs into factors that allowed you to appropriately interpret this law—or any law, more generally. Or maybe, you were never exposed to this law or category of law before.

In the preventative vein, we could be signalling, ‘We caught You taking an item from a shop without paying. Now you know this, and we may make an example of you since you are caught as well’.

Quarantine may be a bit of a stretch in this scenario, so feel free to substitute a more serious offence if it helps you to remember this. Perhaps You killed someone. Even without punishment, we may want to get You off the streets before another killing is perpetrated. I’ll come back to this one.

Rehabilitation makes sense even if one is not responsible for one’s self. Presuming that you are a product of programming—family, culture, peers, and so on—, perhaps you just need to be rewired. Perhaps a particular subroutine was not implemented or activated correctly. This rationality could be used as a non-punitive justification.

Counterarguments

The public prevention case may be why offenders were pilloried in by-gone days. Display in a public square may inform some who may have missed the lesson the first time around, hence dissuading taking similar actions. But unless this ‘public service message’ reached enough people, it would probably not be the best rationale.

Quarantine may sound OK on the surface, but it’s actually rather specious. Firstly, that You knicked a trinket. What exactly is the risk of contagion? Petty theft is not known to be particularly communicable. Secondly, just because you’ve done something once is little measure of whether you’ll do it again. In fact, if this were true, then one might have assumed that you could never have committed the offence because of your history.

Rehabilitation may likely be the best option among these. If you missed that particular lesson or had forgotten or diminished the calculus, remediation may do just the trick. However, if your ‘operating system’ is not up to snuff, it’s not a matter of inputs. It’s a matter of processing capability.

Psychological intervention is in its infancy, so the probability of remediating this is low, if not a crap shoot. And not all such processes can be remediated. This could lead one to fall back on the quarantine option, but who is the competent assessor in this case?

It’s easy enough to assess if You is Hannibal Lecter or tells you straight out that s/he intends to repeat the offence. Some cognitive deficiencies are simple enough to recognise. But what about the grey areas—all of that space in between?

And who is making sure that the judges are not being punitive simply because they haven’t yet eaten lunch?

Enfin

Bringing this to a close, if we have no free will, it makes no sense to punish. Sadly, most justice systems promote retributive justice and punishment in sentencing. I’ll spare you my diatribe on how I believe most people attracted to jurisprudence, law, and law enforcement have been conditioned. And whilst Caruso feels justified in foreword action, I am more sceptical. This said, I’ll take what I can get.

This post is pretty much a stream of consciousness. I hope to give it better treatment in a future video.

Agency Be Damned

I don’t believe that humans have the agency presumed they have, so I’d like to set out to prove it—at least rhetorically. In the ages-old battle between free will and determinism, I’ve tended to lean toward the determinism camp, but there is something keeping me from gaining full membership. I feel that proving hard determinism may be too hard a nut to crack, so I am aiming at just the agency aspect.

There are two major themes in my thinking.

  1. Humans have no material agency
  2. Power structures require the presumption of agency

Although this concept has been rattling around my brain cage for a while and I still have a ways to go, I feel it will be helpful to sketch out my ideas. I feel inspired by people like Robert Sapolsky and Daniel Dennett. And I feel I can draw insights into counter-arguments from people like Jonathan Haidt, Joshua Greene, and even Steven Pinker. I feel that my experience in behavioural economics may be useful for additional context—people like Daniel Kahneman, Richard Thaler, and Dan Ariely. But I feel disheartened when it appears that Galen Strawson and his father before him, Peter Strawson, people much more connected and elevated in the field have been treading the same territory for decades — over half a century — ahead of me, thankfully beating a path but not necessarily making much headway. Perhaps I can build upon that foundation if not substantially at least perceptibly. Of course, the seminal work by Isaiah Berlin’s Two Concepts of Liberty.

We may act as we will, but we cannot will as we will.

Arthur Schopenhauer

Besides the aforementioned, a correspondent has suggested other source references. He shares: Physics, including quantum mechanics, is fully Lagrangian. According to Stanford’s Leonard Susskind, Lagrange derived his formalism from the principle of ‘Least Action’. Jean Buridan’s principle of ‘Equipoise’ renders a Lagrangian model of the world perfectly deterministic. So, the physical domain is not probabilistic; and all indeterminacy is actually epistemic indeterminability. He also suggets Thomas Hobbes’ “De Corpore”.

About my second point, my corresponent agrees:

I think your “meta” is right. We feel that we are “free agents”, and we don’t know to what to attribute our feeling that we freely choose; so we imagine that we have “free will”. In my view it also doesn’t exist – we really are, as Sapolsky describes, zombie robots – we just don’t (and cannot) know it. Free will is thus a mere (but compelling) illusion on both individual and emergent scales. And yes again: all of morality, jurisprudence, etc., depends on it.

Unattributed Correspondant

My correspondent is a professional philosopher who shall remain anonymous until such time as he agrees, if ever, to make his identity known. I am quiet aware that some of my ideas are contentious and polemic. Not everyone wishes to be mired in controversy.

Humans Have No Material Agency

Humans have little to no agency. This is the point I am making in my Testudineous Agency post. From what I know until now, this likely qualifies as soft determinism, but this might shift as I acquire new nomenclature and taxonomic distinction. I’ve discovered this taxonomy of free will positions, though I am not well enough versed to comment on its accuracy or completeness. For now, it seems like a decent working model to serve as a starting point, but I am fully cognizant of possible Dunning-Kruger factors.

A Taxonomy of Free Will Positions

In essence, hard determinism says that the world is not probabilistic. Some event triggered the universe as we know it, and it will unfold according to the laws of physics whether or not we understand them. A weaker form, soft determinism, allows for some probability and trivial ‘agency’. I feel that Dennett supports soft determinism. I feel that because we, as ‘individuals’, are a confluence of multitudinous factors, we have little agency (interpreted as responsibility). More on this later.

Power structures require the presumption of agency

To be honest, the free will debate is only interesting to me in context. To me the context is power. The ‘meta’ of this is that society (and human ‘nature’) seem to need this accountability and culpability, but it doesn’t actually exist, so it is created as a social construct and enforced in a Foucauldian power relationship through government through jurisprudence mechanisms.

This is the part of the debate I haven’t heard much about. Sapolsky did write in Behave, chapter 20X, that criminal justice systems need to be reformed to account for diminished agency, and I’ll need to return to that to better comprehend his position and assertion.

The rest of the story

As a handy reference, these are the authors and books I’ve encountered to date and in no particular order:

Then there I those I have yet to read:

I’ve got a lot of essays and lecture notes not referenced plus general content from Reddit, Medium and other blogs sources, YouTube, podcasts, and so on. I probably should have documented some Classical philosophers, but I don’t generally find their argumentation compelling, though I might add them later.

The aim of this post is just to capture my intent—if it is indeed my intent. Oh, the questions and implications of a lack of agency. Please stand by.

Testudineous Agency

In chapter 71, Ultimate Responsibility, in Intuition Pumps and Other Tools for Thinking, author and philosopher, Daniel Dennett presents a counterargument to the notion that an agent, a person, is not absolutely responsible for their actions. He questions some premises in the ‘the way you are’ line of argumentation, but I question some of his questions.

Here is a nice clear version of what some thinkers take to be the decisive argument. It is due in this form to the philosopher Galen Strawson (2010):
1. You do what you do, in any given situation, because of the way you are.
2. So in order to be ultimately responsible for what you do, you have to be ultimately responsible for the way you are—at least in certain crucial mental respects.
3. But you cannot be ultimately responsible for the way you are in any respect at all.
4. So you cannot be ultimately responsible for what you do.

Dennett, Daniel C.. Intuition Pumps And Other Tools for Thinking (p. 395). W. W. Norton & Company. Kindle Edition.

Dennett continues.

The first premise is undeniable: “the way you are” is meant to include your total state at the time, however you got into it. Whatever state it is, your action flows from it non-miraculously.

Dennett and I are in agreement with Strawson. There is not much to see here. It’s akin to saying the now is the result of all past events until now. This is “the way you are”.

The second premise observes that you couldn’t be “ultimately” responsible for what you do unless you were “ultimately” responsible for getting yourself into that state—at least in some regards.

This second premise asserts that one cannot be responsible for any action that one had no part in performing. Two scenarios come immediately to mind.

First, you are not responsible for being born. As Heidegger notes, we are all thrown into this world. We have no say in when or where—what country or family—or what circumstances.

Second, if one is hypnotised or otherwise incapacitated, and then involved in a crime, one is merely a cog and not an agent, so not responsible in any material sense.

But according to step (3) this is impossible.

Whilst Dennett fixates on the absolute aspect of the assertion, I’d like to be more charitable and suggest that we still end up with a sorites paradox. Dennett will return to this one, and so shall I.

So step (4), the conclusion, does seem to follow logically. Several thinkers have found this argument decisive and important. But is it really?

As Dennett invalidates step (3), he insists that the conclusion is also invalid. He asserts that the notion of absolute responsibility is a red herring, and I argue that Dennett doesn’t get us much further, perhaps redirecting us with a pink herring.

I’ve created an image with tortoises to make my point. There are actually two points I wish to make. The first point is to determine where the responsibility is inherited. This point is meant to articulate that the world can not be strictly deterministic and yet one can still not have significant agency. The second point is that culpability is asserted as a need, and acceptance of this assertion is the problem.

This image has an empty alt attribute; its file name is image-14.png
Testuditude

The image depicts an evolution of an agent, with time progressing from left to right. The tortoise on the right is a product of each of the recursive tortoises to its left. The image means to convey that each subsequent tortoise is a genetic and social and social product of each tortoise prior. Of course, this is obviously simplified, because tortoises require pairs, so feel free to imagine each precedent tortoise to represent a pair or feel free to add that level of diagrammatic complexity.

This is not meant to distinguish between nature and nurture. Instead, the claim is that one is a product of both of these. Moreover, as genetic, epigenetic, and mimetic influences are transmitted in family units, they also occur through social interaction and the environment, as represented by the orange and green tortoises.

…if one is a product of genetic and mimetic forces, how much agency remains for culpability?

The point here is that if one is a product of genetic and mimetic forces, how much agency remains for culpability? Each person is an emergent unit—autonomous, yes, and yet highly programmed.

If I programme a boobytrap to kill or maim any intruder, the boobytrap has no agency. I assert further, that the maker of that boobytrap has no more responsibility than the killing device.

The old hand grenade wired to a doorknob boobytrap trick

But who do we blame? you ask, and that’s precisely the problem. Asking questions doesn’t presume answers. This is a logical fallacy and cognitive bias. This heuristic leaves us with faulty jurisprudence systems. Humans seem hardwired, as it were, to blame. Humans need to believe in the notion of free will because they need to blame because they need to punish because vengeance is part of human nature to the extent there is human nature. There seems to be a propensity to frame everything as a causal relationship. Dennett calls this the Intentional stance. To borrow a from Dennett…

This instinctual response is the source in evolution of the invention of all the invisible elves, goblins, leprechauns, fairies, ogres, and gods that eventually evolve into God, the ultimate invisible intentional system.

Dennett, Daniel C.. Intuition Pumps And Other Tools for Thinking (p. 374). W. W. Norton & Company. Kindle Edition.
Fire Trap in Home Alone

Sins of the Fathers (and Mothers)

Let’s wrap this up with a sorites paradox. As I’ve already said, I agree with Dennett that the absolute aspect is unnecessary and undesired. The question remains how much agency™ does a person have once we account for the other factors? Is it closer to 90 per cent or 10 per cent? Apart from this, what is the threshold for culpability? Legal systems already have arbitrary (if not capricious) thresholds for this, whether mental capacity or age, which basically distils back to the realm of capacity.

I have no basis to even venture a guess, but that’s never stopped me before. I’d argue that the agency is closer to zero than to one hundred per cent of the total, and I’d propose that 70 per cent feels like a reasonable threshold.

I could have sworn I’d posted a position on this after I read Robert Sapolsky’s Behave. Perhaps it’s never made it out of drafts.

In closing, I don’t think we need to settle the question of determinism versus free will to recognise that even without strict determinism, personal agency is still severely limited, and yet as our political systems presume a level of rationality that is not apparent, so do legal systems presume a level of agency not present.

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.

The Problem of Rape

Last week, Motherboard published the full email thread in which Stallman wrote that the “most plausible scenario” is that Epstein’s underage victims in his campaign of trafficking were “entirely willing.” Stallman also argued about the definition of “rape” and whether the term applies to the victims.

When someone else in the email thread pointed out that victim Virginia Giuffre, who was 17 when she was forced to have sex with AI pioneer Marvin Minsky, Stallman said “it is morally absurd to define ‘rape’ in a way that depends on minor details such as which country it was in or whether the victim was 18 years old or 17.”

Vice.com

Richard Stallman resigned from several positions after these comments were surfaced.

The United States have a communication problem that transcends their petty polar politics, and this issue extends to the West.

The conversation around rape and Julian Assange became an issue based on Sweden’s characterisation of the crime as they see it, but this is different.

As with many jurisdictions, the United States creates age-based legal boundaries. This is expedient, to to sure, but we also know, rape aside, that people mature at different paces–not to mention the concept that the brain is not fully developed (whatever than means) until around age 30.

Age is used to delimit majority for contracts, marriage, sex (consent), alcohol, voting, military service, and so on, but it’s a weak tea proxy.

As a legal/social subject, rape is fairly categorically reviled, but it is hardly cut and dry, especially when one confounds the issue with the concept of statutory rape, which is where the systems strips the concept of consent from the equation, so that at 6,569 days a woman (because this is predominately applied to females over males) has no right to consent but at 6,570 does. This is further exacerbated because different jurisdictions have different ages of consent and loopholes, that are beyond the scope of my commentary and misses the point of communication.

Hot Button

Rape, race, and gender are hot button topics used to curtail and derail legitimate discourse and conversation. Whether Stallman’s comments exceeded the bounds of my argument does not invalidate the argument. Perhaps, he did overstep the bounds of civility, but that’s not my concern here.

To me, the question is, given I feel that the sole purpose of jurisprudence systems is to consolidate power to the status quo, how do we create a fair but ‘knowable’ boundary around things for which we currently rely on age, one where both sides of the consent equation understand the limit ex ante. But given legal systems are not designed for precision but for simplicity and expedience (albeit in a Rube Goldberg sort of way) and given that most people don’t question systems themselves, I don’t expect it change any time soon.

Neither do I expect the broader population not to be distracted by these same hot button topics. Distraction is a standard rhetorical device.

Why Sexual Morality Doesn’t Exist

His words, not mine.

Whilst I agree that all morality is contrived, Alan H. Goldman, Kenan Professor Emeritus of Philosophy at the College of William and Mary, presents his position that sexual morality is not divorced from any morality. It’s not particularly a special case. I agree in principle, but his argument is lacking.


Sexual desire aims directly at the pleasure derived from physical contact

Alan H. Goldman

He states that ‘As other philosophers point out, pleasure is normally a byproduct of successfully doing things not aimed at pleasure directly, but this is not the case with sex. Sexual desire aims directly at the pleasure derived from physical contact. [The] desire for physical contact in other contexts, for example, contact sports, is not sexual because it has other motives (winning, exhibiting dominance, etc.), but sexual desire in itself has no other motive. It is not a desire to reproduce or to express love or other emotions, although sexual activity, like other activities, can express various emotions including love.’

Pleasure is normally a byproduct. 

Sure.

This is not the case with sex.

OK. Elaborate.

Sexual desire aims directly at … pleasure.

I'm still following.

Sexual desire in itself has no other motive, which is pleasure.

Damn. You lost me.

I might agree that pleasure (let’s ignore the fact that this is another weasel word) may be the motivation behind sexual desire, but we don’t really have means to determine motivation or intent, and we certainly can’t assess one attribute over another.

Power is everywhere because it comes from everywhere — Michel Foucault

Foucault may have argued that the motivation is power—perhaps each side is making their own power calculus. Given the state of current knowledge, this is not ascertainable. Prof Goldman may feel that pleasure is the motive; one may even argue that power yields pleasure. I’ll not traverse that rabbit hole.

Later, he asserts that ‘More controversial is whether any consensual sex between willing partners is wrong’. I won’t debate this position, but there is no good way to full assess consent.

I’ll outline a fairly stereotypical scenario—excuse me for opting for a heterosexual situation, but the pronouns are easier to track. Say a man and a woman have met in a social setting—perhaps they’ve been dating for some period—, and they ‘mutually’ decide to engage in sex. We’d call this exercising agency, two consenting adults.

But what of ulterior motives? Following the stereotype, perhaps he feels that he is conquering her, and she feels she is securing a stable mate; or perhaps they don’t feel this at all. What is the actual intent? Not to go full-on Freud, but are they playing out some latent urge? Is this just some deterministic eventuality. There’s really no way to tell. Any story I tell is as speculative as the next.

So, to end on a tangent, a significant problem underlying philosophy, psychology, and jurisprudence is the issue of intent. The term is bandied about on most cop shows and legal dramas, but it is another just another vapid notion that we accept as valid. Of course, if we dispense of the notion, our legal systems would just unravel.

Yet again we’ve reached a point where the only truth is rhetoric.

Is it a gift?

This is a continuation of my previous post—with a touch of TMI…

I was divorced some time ago, and I was ‘accused’ of giving gifts to another woman—a woman a met after I was served papers for the divorce. After her attorney asked if I had ever given any gifts to anyone, the judge scoffed when I asked for a definition of gift so that I could respond honestly. The judge actually rolled her eyes and made a comment that my approach was not going to work. So without an established definition, I replied, ‘No. I never gave any gifts to anyone.’ She was fine with the response. In fact, she already had made up here mind in the same manner when a person pleading the Fifth in the US is automatically seen as having something to hide and therefore guilty of something. It’s a fanciful notion that taking the Fifth somehow eliminates the concern in question, but the entire jurisprudence system is arbitrary and virtually capricious—despite supposedly being a deontological endeavour. In practice, the goal of organised Law is to elevate process over justice so as to at least give the appearance that it is fair and otherwise meaningful.

Lady Justice

So, is it possible to give a gift? Is it possible to know this? Is it possible to know the intent of anything?


Gift (n): a thing given willingly to someone without payment

https://en.oxforddictionaries.com/definition/gift

If gift is defined as a something given willingly and without payment, what is the scope of without payment, and what constitutes payment? Is altruism even possible? Is this possible to know? Again, can anyone know the intent of another? Can anyone truly know the intent of their own actions? Does the unconscious or past experience obviate intent?

In my case, I gave a woman some—what might colloquially be called—gifts. There were no strings explicitly attached? Does this mean there were no strings attached? I had a romantic interest in this woman. Clearly, this courting game involved gift-given in return for some expected payoff at some time in the future.

What if I had given one of these gifts to a stranger on the street—perhaps a homeless person? Would that now be a gift? What if I was in a foreign place with a nil probability of encountering this person ever again and nobody witnessed the transaction and I would never tell another soul about it? Would this be a gift?

I suppose if I had no notion of karma, whether the Eastern variety or the Western Heaven-oriented variety, and it gave me no hormonal benefits relative to dopamine, serotonin, and oxytocin, I’d buy it.

So, accuse me of being pedantic, and you’ve made my point. We only want to employ language until the point it complies with our notion of our sense of truth. But it’s nothing more than this.