My Mom dropped into town today. I haven't seen her in a month. So I will go see Mom today!
I actually needed a small break anyway to handle a few more administrative things. Whenever I have errands to run, I just can't focus on my writing as much as I'd like.
I have a long list of new issues to discuss, including some troublesome insights about contracts. Aren't contracts wonderful? Sometimes the law favors the morally wrong party in a transaction. You know why? Because the law cares not a fig for morality. In fact, the law serves economic values. And when it comes to social influence, economic values utterly overshadow morality. There's right and wrong: As long as big money isn't at stake. When it is at stake, other rules apply.
I will be back to tackle these questions tomorrow morning. In the meantime, don't forget the archives.
Oesterhoudt
Showing posts with label Morality. Show all posts
Showing posts with label Morality. Show all posts
Wednesday, March 10, 2010
Tuesday, March 9, 2010
LIFE, DEATH, ABORTION, SCARFACE AND HAMLET
AN ESSAY
I grew up in a ferociously pro-choice household. From my earliest memory, my mother told me that abortion was a woman's right. It was her choice to decide what to do with her body. Those ideas filtered into my mind. I never thought much about it. I never thought abortion amounted to murder. In fact, I remember my mother used to say: "It's nothing but a clump of cells. It's not even a person. You're not hurting anyone when you pull it out of there."
I was satisfied with her explanation. It passed my empirical scrutiny. After all, I had no memory about my own life before I was three years old, let alone memory about my time in the womb. I recalled no pain from that time. In that light, I perceived no moral problem in terminating a pregnancy: It just didn't hurt anyone.
I could not identify with a fetus; I may have once been a fetus, but if someone had rooted me out before I was born, I would not have known the better. There seemed to be no suffering in abortion. I had no problem with it.
When I was a little older, my mother told me that she had had an abortion three years after I was born. That made me understand why she so fiercely advocated abortion rights: She had needed an abortion and she got one. She told me she could not have supported another child. I completely agreed with her. I did not want another sibling, either. I liked my mother's undivided attention. So we both had some self-interest in our beliefs about abortion. I never regretted the idea that I "may have lost a brother or sister." I supported my mother's decision. In fact, I fully endorsed her main argument: That no one has a right to tell a woman what she should do with her own body.
I carried these beliefs with me to law school. They informed my understanding about the Constitution. I read Roe v. Wade, 410 U.S. 113 (1973), as if I already knew what it said. In essence, Roe held that a woman has a constitutional right to terminate her pregnancy at any time before "viability." It reaffirmed my own belief that the State has no right to interfere with a woman's reproductive choices because we all have a right to "privacy" in our bodies.
But there were people in my class who strongly disagreed with Roe. They thought that abortion was a crime. They thought that there was such a thing as "potential life," and that the State had a right to protect "lives that did not yet exist." My own values clashed with that argument. I had always believed--thanks to my mother's explanations and my own empirical conclusions--that fetuses were not people. They were just "clumps of cells." I did not consider them "alive." And even if they represented "potential life," that concept was far too nebulous for me to defend.
Still, many people vociferously believe the opposite. In fact, there are probably some people out there who would kill me for my belief that abortion is acceptable in virtually every circumstance.
In recent years, I have been obsessed with death. When my father died suddenly in 2006, it forced me to reevaluate every assumption I had about life. I pondered life's meaning, its "rewards" and its expectations. After all, I saw that life can end without warning. And all the things that we learn to expect from life can evaporate in an instant. We are all just going to die--in fact, we might even die tomorrow--so why stress out about little things, like careers and money? What do they gain us in the end? Why waste time on them? Why waste a single day on something unappetizing? If all we have are our bodies, why torture ourselves doing things we would rather not do?
I developed a contempt for life. I am still quite contemptuous about it. What does life really have to offer, anyway? Food? Sleep? Orgasms? Comforts? Feather beds? Money? Joys? Is this everything? Are we mere slaves to our senses until the day our senses cease functioning? What difference will food and orgasms make once we die? None, none, none. In fact, those are only the good sensory things that can happen to us in life. More often, life inflicts unbelievable sensory suffering on us. We endure physical pain and emotional turmoil. We endure heartache, delay, disappointment, rejection, boredom, stress, betrayal, mockery, abuse and frustration. The bad moments usually far outnumber the good ones. Then we die. Taken as a whole, then, life is a losing proposition.
That's not to say that I do not sometimes like living. It feels good to eat, sleep, have sex, talk with friends, love people, be loved, sit in a comfortable chair, listen to music and read books. I like being alive in those moments. But is this all there is? And do I have to endure all the bad stuff for these few good moments?
Many others have come to these same sad conclusions about human life. In Brian de Palma's Scarface (1983), drug kingpin Tony Montana achieves the height of earthly success. He has a beautiful wife. He has untold riches. He has a huge villa in Florida. He has a massive hot tub. He throws mammoth parties. He wants for nothing. Yet after an argument at an expensive restaurant one night, he turns to his best friend and despondently says: "Is this it? Is this what it's all about, Manny? Eating, drinking, fucking, sucking, snorting, then what? You're 50 with a bag for a belly."
Tony Montana developed a contempt for life. He did not care about what it had to offer, even though he had it all. And he did not mind dying after he saw how little life really matters.
Shakespeare's Hamlet thought the same thing. In several scenes, Hamlet rues the crude banality of human existence. Like Tony Montana, he says: "What is a man,/ If his chief good and market of his time/ Be but to sleep and feed? a beast, no more." Hamlet, Act IV, sc. iv, l. 31-33. Hamlet understands--as I do--that life's so-called "good things" add up to little more than "[b]estial oblivion." Act IV, sc. iv, l. 38. In fact, Hamlet grows so disenchanted with life's petty potential rewards that he prefers death to living: "O that this too too solid flesh would melt,/ Thaw, and resolve itself into a dew!/ Or that the Everlasting had not fixt his/ Canon 'gainst self-slaughter! O God! O God!/ How weary, stale, flat, and unprofitable/ Seem to me all the uses of this world!/ Fie on't! O, fie! 'tis an unweeded garden/ That grows to seed; things rank and gross in/ nature/ Possess it merely." Act I, sc. ii, l. 129-138. Later, he dismisses the world as "no/ other thing [] than a foul and pestilent/ congregation of vapors." Act II, sc. ii, l. 308-309. And he dismisses man, too: "What piece of work is/ man!...what is/ this quintessence of dust?" Act II, sc. ii, l. 309-310, 314-315.
Is this what it's all about, Manny? A "quintessence of dust?" "Bestial oblivion?" An existence "weary, stale, flat and unprofitable?" "An unweeded garden that grows to seed?" "A foul and pestilent congregation of vapors?" Taken in the abstract, Hamlet is dead on. Life pretty much sucks. And even the good stuff is a pretty poor palliative for the endless difficulties it inflicts upon us.
I am permissive toward abortion because I really could care less whether another person enters this brutal world. After all, earthly life offers little more than "bestial oblivion," anyway, so why should I care whether some new beast gets to eat, sleep or feed? It just doesn't matter to me. If a woman chooses to end her pregnancy, good for her: She's saving the little tyke a whole lot of trouble.
But what about abortion opponents? They must have different expectations from life than I do. They must not really ponder human existence. They must genuinely like what life has to offer. They must really like eating, sleeping, fucking, sucking and snorting, even if they wind up with bags for bellies. After all, they are willing to kill doctors in order to defend potential life. Let me say that again: Potential life. They like life so much that they are willing to commit murder so that a clump of cells may one day eat, sleep, fuck, suck and snort. They are committed not just to an existing person's right to eat, sleep, fuck, suck and snort. They are also committed to a non-existent person's right to do so. Now that shows real dedication to earthly life. It's a dedication I certainly do not share. To each his own, I suppose.
In my experience, life is no bowl of cherries. It is hard. It is full of misery and pain. When we do enjoy good moments, they are precious. But how rare they are! And viewed in the abstract, how petty! Is this why we're alive, then? To undergo endless difficulty punctuated by a few slender moments of bestial joy? We cling to life like any other mammal. We fear death because we do not know what awaits us. So, as Hamlet says, we "bear those ills we have/ [rather] than fly to others that we know not of." Hamlet, Act III, sc. i. l. 83-84.
We are the only ones who can create meaning in our lives. Hamlet found meaning by finding a purpose: Taking revenge for his murdered father. He did not seek mere "bestial oblivion" or "worldly comfort." He impressed his soul on his existence to transcend his "mortal coil." His life took on greater significance. And fittingly, he died in the process.
I have not died yet. I know that life does not offer much. Yet I try to do what Hamlet did. I am trying to live for something greater than bestial oblivion. I like bestial oblivion as much as the next man (beast). But my real joy flows from the idea that I am doing something beyond the flesh: Writing. I had to find something to make this maddening journey bearable. It was my choice.
Even then, I do not hold my own life in high esteem. On the whole, life is more trouble than it's worth. Only instinctual self-preservation holds me in check.
So from my view, so what if a woman gets an abortion? I have no philosophical problem with any activity that saves another from this harrowing sphere of pain.
I grew up in a ferociously pro-choice household. From my earliest memory, my mother told me that abortion was a woman's right. It was her choice to decide what to do with her body. Those ideas filtered into my mind. I never thought much about it. I never thought abortion amounted to murder. In fact, I remember my mother used to say: "It's nothing but a clump of cells. It's not even a person. You're not hurting anyone when you pull it out of there."
I was satisfied with her explanation. It passed my empirical scrutiny. After all, I had no memory about my own life before I was three years old, let alone memory about my time in the womb. I recalled no pain from that time. In that light, I perceived no moral problem in terminating a pregnancy: It just didn't hurt anyone.
I could not identify with a fetus; I may have once been a fetus, but if someone had rooted me out before I was born, I would not have known the better. There seemed to be no suffering in abortion. I had no problem with it.
When I was a little older, my mother told me that she had had an abortion three years after I was born. That made me understand why she so fiercely advocated abortion rights: She had needed an abortion and she got one. She told me she could not have supported another child. I completely agreed with her. I did not want another sibling, either. I liked my mother's undivided attention. So we both had some self-interest in our beliefs about abortion. I never regretted the idea that I "may have lost a brother or sister." I supported my mother's decision. In fact, I fully endorsed her main argument: That no one has a right to tell a woman what she should do with her own body.
I carried these beliefs with me to law school. They informed my understanding about the Constitution. I read Roe v. Wade, 410 U.S. 113 (1973), as if I already knew what it said. In essence, Roe held that a woman has a constitutional right to terminate her pregnancy at any time before "viability." It reaffirmed my own belief that the State has no right to interfere with a woman's reproductive choices because we all have a right to "privacy" in our bodies.
But there were people in my class who strongly disagreed with Roe. They thought that abortion was a crime. They thought that there was such a thing as "potential life," and that the State had a right to protect "lives that did not yet exist." My own values clashed with that argument. I had always believed--thanks to my mother's explanations and my own empirical conclusions--that fetuses were not people. They were just "clumps of cells." I did not consider them "alive." And even if they represented "potential life," that concept was far too nebulous for me to defend.
Still, many people vociferously believe the opposite. In fact, there are probably some people out there who would kill me for my belief that abortion is acceptable in virtually every circumstance.
In recent years, I have been obsessed with death. When my father died suddenly in 2006, it forced me to reevaluate every assumption I had about life. I pondered life's meaning, its "rewards" and its expectations. After all, I saw that life can end without warning. And all the things that we learn to expect from life can evaporate in an instant. We are all just going to die--in fact, we might even die tomorrow--so why stress out about little things, like careers and money? What do they gain us in the end? Why waste time on them? Why waste a single day on something unappetizing? If all we have are our bodies, why torture ourselves doing things we would rather not do?
I developed a contempt for life. I am still quite contemptuous about it. What does life really have to offer, anyway? Food? Sleep? Orgasms? Comforts? Feather beds? Money? Joys? Is this everything? Are we mere slaves to our senses until the day our senses cease functioning? What difference will food and orgasms make once we die? None, none, none. In fact, those are only the good sensory things that can happen to us in life. More often, life inflicts unbelievable sensory suffering on us. We endure physical pain and emotional turmoil. We endure heartache, delay, disappointment, rejection, boredom, stress, betrayal, mockery, abuse and frustration. The bad moments usually far outnumber the good ones. Then we die. Taken as a whole, then, life is a losing proposition.
That's not to say that I do not sometimes like living. It feels good to eat, sleep, have sex, talk with friends, love people, be loved, sit in a comfortable chair, listen to music and read books. I like being alive in those moments. But is this all there is? And do I have to endure all the bad stuff for these few good moments?
Many others have come to these same sad conclusions about human life. In Brian de Palma's Scarface (1983), drug kingpin Tony Montana achieves the height of earthly success. He has a beautiful wife. He has untold riches. He has a huge villa in Florida. He has a massive hot tub. He throws mammoth parties. He wants for nothing. Yet after an argument at an expensive restaurant one night, he turns to his best friend and despondently says: "Is this it? Is this what it's all about, Manny? Eating, drinking, fucking, sucking, snorting, then what? You're 50 with a bag for a belly."
Tony Montana developed a contempt for life. He did not care about what it had to offer, even though he had it all. And he did not mind dying after he saw how little life really matters.
Shakespeare's Hamlet thought the same thing. In several scenes, Hamlet rues the crude banality of human existence. Like Tony Montana, he says: "What is a man,/ If his chief good and market of his time/ Be but to sleep and feed? a beast, no more." Hamlet, Act IV, sc. iv, l. 31-33. Hamlet understands--as I do--that life's so-called "good things" add up to little more than "[b]estial oblivion." Act IV, sc. iv, l. 38. In fact, Hamlet grows so disenchanted with life's petty potential rewards that he prefers death to living: "O that this too too solid flesh would melt,/ Thaw, and resolve itself into a dew!/ Or that the Everlasting had not fixt his/ Canon 'gainst self-slaughter! O God! O God!/ How weary, stale, flat, and unprofitable/ Seem to me all the uses of this world!/ Fie on't! O, fie! 'tis an unweeded garden/ That grows to seed; things rank and gross in/ nature/ Possess it merely." Act I, sc. ii, l. 129-138. Later, he dismisses the world as "no/ other thing [] than a foul and pestilent/ congregation of vapors." Act II, sc. ii, l. 308-309. And he dismisses man, too: "What piece of work is/ man!...what is/ this quintessence of dust?" Act II, sc. ii, l. 309-310, 314-315.
Is this what it's all about, Manny? A "quintessence of dust?" "Bestial oblivion?" An existence "weary, stale, flat and unprofitable?" "An unweeded garden that grows to seed?" "A foul and pestilent congregation of vapors?" Taken in the abstract, Hamlet is dead on. Life pretty much sucks. And even the good stuff is a pretty poor palliative for the endless difficulties it inflicts upon us.
I am permissive toward abortion because I really could care less whether another person enters this brutal world. After all, earthly life offers little more than "bestial oblivion," anyway, so why should I care whether some new beast gets to eat, sleep or feed? It just doesn't matter to me. If a woman chooses to end her pregnancy, good for her: She's saving the little tyke a whole lot of trouble.
But what about abortion opponents? They must have different expectations from life than I do. They must not really ponder human existence. They must genuinely like what life has to offer. They must really like eating, sleeping, fucking, sucking and snorting, even if they wind up with bags for bellies. After all, they are willing to kill doctors in order to defend potential life. Let me say that again: Potential life. They like life so much that they are willing to commit murder so that a clump of cells may one day eat, sleep, fuck, suck and snort. They are committed not just to an existing person's right to eat, sleep, fuck, suck and snort. They are also committed to a non-existent person's right to do so. Now that shows real dedication to earthly life. It's a dedication I certainly do not share. To each his own, I suppose.
In my experience, life is no bowl of cherries. It is hard. It is full of misery and pain. When we do enjoy good moments, they are precious. But how rare they are! And viewed in the abstract, how petty! Is this why we're alive, then? To undergo endless difficulty punctuated by a few slender moments of bestial joy? We cling to life like any other mammal. We fear death because we do not know what awaits us. So, as Hamlet says, we "bear those ills we have/ [rather] than fly to others that we know not of." Hamlet, Act III, sc. i. l. 83-84.
We are the only ones who can create meaning in our lives. Hamlet found meaning by finding a purpose: Taking revenge for his murdered father. He did not seek mere "bestial oblivion" or "worldly comfort." He impressed his soul on his existence to transcend his "mortal coil." His life took on greater significance. And fittingly, he died in the process.
I have not died yet. I know that life does not offer much. Yet I try to do what Hamlet did. I am trying to live for something greater than bestial oblivion. I like bestial oblivion as much as the next man (beast). But my real joy flows from the idea that I am doing something beyond the flesh: Writing. I had to find something to make this maddening journey bearable. It was my choice.
Even then, I do not hold my own life in high esteem. On the whole, life is more trouble than it's worth. Only instinctual self-preservation holds me in check.
So from my view, so what if a woman gets an abortion? I have no philosophical problem with any activity that saves another from this harrowing sphere of pain.
Friday, February 5, 2010
NATIONAL BROTHERHOOD OF NO-GOOD SCOUNDRELS, DISHONORABLE PRICKS, LOW-DOWN PUNKS AND PLAIN LOUSY SONOFABITCHES WHO NEVER CALL YOU BACK
POLITICAL PARTIES FOR A CHANGING WORLDBy : Dr. U. B. van Flucken, Ph. D., Yale University (Behavioral Science); Former Fashion and Women's Issues Editor, Men's Health Magazine (2003-2007); Fellow, The National Favorable Results Society (Washington, D.C. Chapter); Author, "Say What You Need To Say : A Beginner's Guide to Getting What You Want from People " (Doubleday Press : New York 1999); Semi-Professional Water Polo Competitor (Greater Northeast Elite Sports Network) (1989-present).
No matter where you turn in this country, people tell you that it is bad to be a scoundrel. They say that it is wrong to lie, exaggerate, deceive, betray, backstab and abuse people's trust. They say it is wrong to borrow money without paying it back. And they even say it is wrong to two-time on your girlfriend.
But these folks just don't know how to be a no-good scoundrel. Contrary to all the propaganda, there is nothing wrong at all with being a no-good, morally-destitute scoundrel. You just have to know how to play your cards right. In fact, great people know how to be great scoundrels. And they become great because they know how to disguise who they really are: Scoundrels.
I started the National Brotherhood of No-Good Scoundrels, Dishonorable Pricks, Low-Down Punks and Plain Lousy Sonofabitches Who Never Call You Back for a simple reason: To show Americans how vital we really are. Since founding the organization, I have struggled to demonstrate that honorable responsibility is not the pathway to success. To the contrary, it is my mission to show that only a dishonorable scoundrel can prevail in this world. And it is not a hard job: If you know how to be a low-down, dishonorable punk and not get caught, there is nothing you cannot accomplish.
Success is all about image. When you're a successful scoundrel, no one knows just how big a scoundrel you really are. If they did, they'd ostracize you and no one would want to talk to you. Scoundrels need people; you can't be successful without them. But real scoundrels know how to control their image. They don’t let people get the right idea about them. They carefully monitor how people perceive them, then skillfully play one unsuspecting idiot off the other to gain all the advantages. Contrary to all the rhetoric, scoundrels aren't haphazard bums. They know exactly what they're doing at all times.
Not everyone has the guts to be an unrepentant, conniving knave. Most people buy into the propaganda and try to live honorable, "decent" lives. A lot of good that does: They wind up working loser jobs for bad pay, then skulking around with their wives and boring children for years on end. Sure, they might get some inward satisfaction from "treating people with respect" and "telling the truth, no matter what."
But at what cost! Wouldn't it be so much better to twist a few arms and tell a few tall tales here and there to really get what you want? Wouldn't life be so much more rewarding if you played some putz like a fiddle, then refused to call him back when he needed you? Why not? As long as you make sure that the guy isn't important for your advancement later, screw him. Tell him what he wants to hear. Inflate yourself. Get what you need from him. Then just forget about him and move on to the next sucker. Remember: Life is a ladder with human rungs. You need to keep moving up if you want to get to the top.
Dishonor, manipulation and double-dealing bring untold rewards. Still, a skillful rogue must make sure he does not generate the wrong impression. Good scoundrels effortlessly master disguises. You can't just trample on people and expect them to take it. Rather, a skillful rogue knows how to totally screw a person over without them knowing until it is too late--if ever. Scoundrels like us only got a bad reputation because some jerk tried to be clever and got caught in the act. And scoundrels only get caught when they are not paying attention to what they are doing. In that sense, true scoundrels are not scoundrels at all: They are virtuosos who know how to spin a story and exploit the hell out of people without anyone ever catching on. That takes skill--not everyone can hack it.
Life is tough enough without worrying about whether you're responsible or ethical. Everyone wants the same things: Money, success, happiness, women, recognition. You know, the usual stuff. Everyone is chasing after the same rewards. It is hard to win even without rules. That is why it amazes me that people insist on "honest dealing," "telling the truth" and "propriety" in their quest for success. That's like tying a boulder to your leg before swimming the English Channel: It greatly impedes your chances to succeed. In fact, it will probably sink you long before you even come close to your goal.
But scoundrels don't bother with boulders. They dress for success. They think about where they want to go and just do it. They do not distract themselves with abstractions. They don't overthink issues; they just deliver results. To that end, it makes no sense to respect everyone. In fact, most people on the road to success are hopeful scoundrels, too, and why would you respect someone who is trying to hoodwink you? No, a skillful rogue simply acts like he respects his fellows, when in truth he knows what they are: Just another low-down sonofabitch determined to block his advance up the ladder. To be a successful scoundrel, you must hold certain assumptions about your fellow man. And that means you expect to be deceived, deluded, used, abused, tossed away, manipulated and forgotten. It’s all part of the ball game: You need a tough heart to keep playing.
Great scoundrels don't get discouraged. They seek out weakness and capitalize on it. Sure, they know that people are out to use them, but they use others before they can be used. And in the off chance that someone actually trusts them, all the better. Clever scoundrels always come out ahead.
In this light, it is inconceivable why society holds us in such contempt. We are the go-getters. On the other hand, we recognize that no-good scoundrels, dishonorable pricks, low-down punks and plain lousy sonofabitches occupy the highest positions in our society. We run the banks. We run the Senate. We run the stock exchange. We run the insurance companies. We control everything. And the beauty of it is that no one knows we are scoundrels--or, if they found out, there's nothing they could do about it. People only ridicule us when we commit some faux pas that blows our cover. Great scoundrels, however, are extremely discreet. They don't make faux pas: They screw everyone else over their whole lives and no one ever notices.
For that reason, all the social criticism against scoundrels makes no difference to a truly dishonorable punk. A masterfully rotten scoundrel never makes a mistake to invite rebuke. He just keeps moving over people until he quietly reaches his goal.
We prefer it that way. The moralists and ethicists can whine all they want about "irresponsibility." They are only talking about amateur scoundrels. Little do the moralists know that professional scoundrels are the ones paying them to do their little jobs. Little do the ethicists know that professional scoundrels are the ones who own the printing companies that publish their little books. Undiscovered, virtuoso scoundrels run this world--and no one will ever know the difference. That's exactly how we like it.
So what is our secret? If being a scoundrel is so advantageous, why do so many people refuse to follow our path? We wish we could provide specific advice in this regard. The most we can say is to put yourself above others, keep your eyes on the prize and do what you need to do to get it. Don’t slow yourself down with categorical loyalties, philosophical principles or--God forbid--conscientious worries.
In a word, a great scoundrel is a great actor. He can play any part. But he must remain believable. In fact, a scoundrel has failed when the world calls him one. Great scoundrels appear to be everything, even if they are nothing. They seem to be friends with everyone, when in truth they have none. In the scoundrel's world, it's all about presentation. It doesn’t matter if there's really nothing there. Very few people ever really look to see if there is, anyway.
So if you really want to be scoundrel, start thinking about your image. Stop thinking about dignity and worth. Stop thinking about honesty, unless it would help to be honest in a particular situation. For a scoundrel, the truth is never absolute. It is just a tool. Mark that and you will go far.
Tread softly. Flatter. Connive. Ingratiate. Betray. Lie. Win.
Be a no-good scoundrel. Because good never got anyone what they wanted. And there's nothing wrong with getting what you want.
Wednesday, January 20, 2010
DOMINIC CARTER, CRIME AND CHANGING PUNISHMENT IN AMERICA
AN ESSAY
A few months ago, I wrote a short article about Dominic Carter, the former New York 1 anchorman who allegedly beat his wife. I used Mr. Carter's story to illustrate how difficult it is to "prove" things in our empirically-based evidence system. Now, a State court in New York has sentenced Mr. Carter to an unusual punishment for attempted assault. This presents compelling new issues.
Just as Mr. Carter's case provided an excellent vehicle to discuss evidence law, his sentence now provides an excellent vehicle to discuss criminal penalties in modern America. Put simply, criminal penalties are changing in America. And they are drifting far from their traditional purposes. In my view, this is not a good thing.
According to the New York Post, Mr. Carter was convicted of attempted assault for pervasively abusing his wife since 1997. See N.Y. Post, Crying shame of jailed NY1 journo, Jan. 15, 2010 at 5. Although his wife denied that Mr. Carter beat her, the trial judge--Arnold Etelson--referenced police reports detailing marital strife in the Carter home for over a decade. Id. He sentenced Mr. Carter to 30 days' imprisonment. Id. He also ordered Mr. Carter to "stay away" from his wife for two years unless "he is prescribed medication by a psychiatrist able to assure the judge that [he] is well enough to see her." Id. Additionally, the judge gave Mr. Carter an article from New York Magazine detailing Matt Damon's views about "honesty and humility." Id. During sentencing, he told Mr. Carter: "Try some humility and honesty--it goes a long way." Id. Finally, the judge gave Mr. Carter's wife a sticker with the words "Attitude Makes the Difference. " Id. He instructed her to affix the sticker to her bathroom mirror so that Mr. Carter can see it when he visits. Id.
This is highly irregular judicial work. As a general rule, the criminal law forbids specifically defined conduct. The criminal justice system decides whether the defendant engaged in that conduct, then neutrally decrees the legal consequences. While morality animates all criminal codes, it is not for judges in the criminal justice system to pontificate about it, let alone publicly scold criminals for sport. This New York judge transformed his courtroom into an entertainment circus. And the spotlight was not on Mr. Carter--it was on the judge.
To start, it is strange that Judge Etelson characterized these facts as "attempted" assault. At common law--and under New York State law--an assault means an intentionally harmful or offensive touching. See, e.g. NYPL § 120.00, et seq. Any intentional crime can be "attempted" if the defendant intends to achieve the bad result envisioned in the criminal code, then takes some action corroborating that intent. But it is no longer "attempt" when the defendant achieves exactly what the law forbids. Here, the judge relied on police reports that detailed Mr. Carter's abuse. They all but verified that he had routinely hit his wife since 1997. If the judge believed those reports, then he should have convicted Mr. Carter of assault, not attempted assault. If Mr. Carter succeeded in harmfully or offensively touching his wife, it was no longer attempted assault. It was just plain old assault--and it's a worse crime than attempted assault.
But Judge Etelson's legal errors pale in comparison with his bizarre approach to criminal penalties. Traditionally, criminal penalties in America--as in all Western countries--target the body and property. The law assumes that people do not want to suffer bodily pain or lose their property, so penalties targeting those things ostensibly dissuade potential criminals from making "bad choices." The death penalty, imprisonment, fines and corporal punishment encompass everything a State can realistically do to penalize crime.
In modern America, imprisonment is the preferred penalty. Fines follow in second place. Most consider corporal punishment an archaic penalty; it really never happens anymore. The death penalty is more common. Still, State-ordered death is quite a rare punishment, too.
Judge Etelson did not give Mr. Carter a traditional punishment. Rather, he theatrically used Mr. Carter as an instrument. The only traditional part about Mr. Carter's sentence was his imprisonment. To some, thirty days in prison for attempted assault might appear harsh. But no one would call it bizarre. People expect either fines or imprisonment for crimes in America. The criminal justice system works in part because the public knows what to expect for certain transgressions. They trust judges to declare penalties that everyone expects. At the same time, they understand that even a convicted criminal is entitled to some dignity before the law. He need not be publicly humiliated, ridiculed or belittled in the courtroom. His prison term and social ostracism accomplish that on their own. It is not the judge's role to morally grandstand or scold. He simply must pronounce sentence. Legislators moralize when they write the laws. Judges should not.
What does a New York Magazine article or a sticker have to do with the law? When did Matt Damon become a legal authority? True, "honesty, humility and a good attitude" are virtues. But it is not the law's role to chastise people for failing to be virtuous. The law's only role is to decree whether a person acted in a defined way. It does not matter whether he was virtuous or not when he did. A defendant suffers enough when a judge declares the penalty for violating the law; he does not need to "rub it in" by acting the moralist. In fact, I argue that judges overstep their bounds when they do.
I understand that people like to see criminals squirm. But their convictions should make them squirm, not a judge's moralizing antics. If every judge took it upon himself to act like Judge Etelson, our criminal justice system would look more like a Catholic school than a neutral forum for just laws. In a word, it is not a judge's job to castigate a convict's moral failings. Moral failings are irrelevant to the law. And the law is the only thing that judges are constitutionally empowered to decide. Anything else they say is unauthorized fluff.
Judge Etelson-style grandstanding is not the only abomination that occurs in our criminal justice system. Now, criminal penalties also increasingly intertwine with psychiatry. Mr. Carter's case is no exception. In his sentence, Judge Etelson conditioned Mr. Carter's future with his wife on his agreement to take psychiatric medications. He also retained discretion whether to permit Mr. Carter to see her, depending on whether a psychiatrist could assure him that he was "well enough."
Are these judicial inquiries? If they are, do they not negate the State's moral outrage against Mr. Carter? After all, if the court believes that Mr. Carter needs psychiatric medication, that means he is mentally ill. If he was mentally ill at the time he struck his wife, that makes him far less morally blameworthy. After all, the criminal law depends upon free, rational choice for its moral strength. It is easy to condemn someone who knowingly makes a bad choice. But it is not easy to condemn someone who lacked the mental composure to make choices, let alone recognize they were wrong.
In this case, Judge Etelson tried to wear too many hats. He wanted to punish Mr. Carter for doing something that violated the law. But then he stepped back and ordered Mr. Carter to take psychiatric medications for his "mental problems." Put simply, judges are not psychiatrists. They are not social workers. It is not their job to monitor people's behavior once they serve their sentences. Nor is it their job to declare whether people are "normal." Rather, they are mere judicial officers, and it's not a complicated job. It is not about management; it is about judgment: Did the defendant do this or not? If he did, he goes to jail. If he didn't, he goes free.
There is undoubtedly a relationship between law and psychiatry. But a judge's only concern with psychiatry is to determine whether a defendant is mentally well enough to be criminally responsible. If he is, that ends the inquiry. In fact, judges must be extremely wary when dealing with psychiatry in criminal cases. After all, the entire rationale for criminal punishment collapses as soon as psychiatry shows that the defendant cannot make rational choices. In that light, judges should tread lightly when tampering with psychiatric issues. They might just discover that the "evil defendant" is really no ogre at all. He might just be "sick." And it is not proper to morally condemn sick people, let alone jail them for choices they could not make. For better or worse, the law only works on sane people.
I doubt that Judge Etelson understood all these issues when he entertained the news media during Dominic Carter's sentencing last week. From his perspective, he was in the spotlight and he was going to relish the moment. He was not content to play the neutral magistrate who calmly decrees the legal consequences of statutory violations. No, he had to play the scolding father, too, as well as the psychiatrist and the actor.
I do not like this. While it may be impossible to separate law from popular morality, judges should consciously try to do so. True, laws enshrine popular morality. But they are not moral weapons. They are technical guidelines. It does not matter whether a law-abiding citizen is moral; he must merely not violate the technical guidelines. Morality is about character. Law is about conduct. It is much easier to control conduct than character. And a judge simply declares whether the individual in question violated the conduct guideline.
Well, at least that's what a judge is supposed to do. American criminal law is changing for the worse because the distinction between morality and law is eroding every day. Just look at the Carter case. It's all right there to see.
A few months ago, I wrote a short article about Dominic Carter, the former New York 1 anchorman who allegedly beat his wife. I used Mr. Carter's story to illustrate how difficult it is to "prove" things in our empirically-based evidence system. Now, a State court in New York has sentenced Mr. Carter to an unusual punishment for attempted assault. This presents compelling new issues.
Just as Mr. Carter's case provided an excellent vehicle to discuss evidence law, his sentence now provides an excellent vehicle to discuss criminal penalties in modern America. Put simply, criminal penalties are changing in America. And they are drifting far from their traditional purposes. In my view, this is not a good thing.
According to the New York Post, Mr. Carter was convicted of attempted assault for pervasively abusing his wife since 1997. See N.Y. Post, Crying shame of jailed NY1 journo, Jan. 15, 2010 at 5. Although his wife denied that Mr. Carter beat her, the trial judge--Arnold Etelson--referenced police reports detailing marital strife in the Carter home for over a decade. Id. He sentenced Mr. Carter to 30 days' imprisonment. Id. He also ordered Mr. Carter to "stay away" from his wife for two years unless "he is prescribed medication by a psychiatrist able to assure the judge that [he] is well enough to see her." Id. Additionally, the judge gave Mr. Carter an article from New York Magazine detailing Matt Damon's views about "honesty and humility." Id. During sentencing, he told Mr. Carter: "Try some humility and honesty--it goes a long way." Id. Finally, the judge gave Mr. Carter's wife a sticker with the words "Attitude Makes the Difference. " Id. He instructed her to affix the sticker to her bathroom mirror so that Mr. Carter can see it when he visits. Id.
This is highly irregular judicial work. As a general rule, the criminal law forbids specifically defined conduct. The criminal justice system decides whether the defendant engaged in that conduct, then neutrally decrees the legal consequences. While morality animates all criminal codes, it is not for judges in the criminal justice system to pontificate about it, let alone publicly scold criminals for sport. This New York judge transformed his courtroom into an entertainment circus. And the spotlight was not on Mr. Carter--it was on the judge.
To start, it is strange that Judge Etelson characterized these facts as "attempted" assault. At common law--and under New York State law--an assault means an intentionally harmful or offensive touching. See, e.g. NYPL § 120.00, et seq. Any intentional crime can be "attempted" if the defendant intends to achieve the bad result envisioned in the criminal code, then takes some action corroborating that intent. But it is no longer "attempt" when the defendant achieves exactly what the law forbids. Here, the judge relied on police reports that detailed Mr. Carter's abuse. They all but verified that he had routinely hit his wife since 1997. If the judge believed those reports, then he should have convicted Mr. Carter of assault, not attempted assault. If Mr. Carter succeeded in harmfully or offensively touching his wife, it was no longer attempted assault. It was just plain old assault--and it's a worse crime than attempted assault.
But Judge Etelson's legal errors pale in comparison with his bizarre approach to criminal penalties. Traditionally, criminal penalties in America--as in all Western countries--target the body and property. The law assumes that people do not want to suffer bodily pain or lose their property, so penalties targeting those things ostensibly dissuade potential criminals from making "bad choices." The death penalty, imprisonment, fines and corporal punishment encompass everything a State can realistically do to penalize crime.
In modern America, imprisonment is the preferred penalty. Fines follow in second place. Most consider corporal punishment an archaic penalty; it really never happens anymore. The death penalty is more common. Still, State-ordered death is quite a rare punishment, too.
Judge Etelson did not give Mr. Carter a traditional punishment. Rather, he theatrically used Mr. Carter as an instrument. The only traditional part about Mr. Carter's sentence was his imprisonment. To some, thirty days in prison for attempted assault might appear harsh. But no one would call it bizarre. People expect either fines or imprisonment for crimes in America. The criminal justice system works in part because the public knows what to expect for certain transgressions. They trust judges to declare penalties that everyone expects. At the same time, they understand that even a convicted criminal is entitled to some dignity before the law. He need not be publicly humiliated, ridiculed or belittled in the courtroom. His prison term and social ostracism accomplish that on their own. It is not the judge's role to morally grandstand or scold. He simply must pronounce sentence. Legislators moralize when they write the laws. Judges should not.
What does a New York Magazine article or a sticker have to do with the law? When did Matt Damon become a legal authority? True, "honesty, humility and a good attitude" are virtues. But it is not the law's role to chastise people for failing to be virtuous. The law's only role is to decree whether a person acted in a defined way. It does not matter whether he was virtuous or not when he did. A defendant suffers enough when a judge declares the penalty for violating the law; he does not need to "rub it in" by acting the moralist. In fact, I argue that judges overstep their bounds when they do.
I understand that people like to see criminals squirm. But their convictions should make them squirm, not a judge's moralizing antics. If every judge took it upon himself to act like Judge Etelson, our criminal justice system would look more like a Catholic school than a neutral forum for just laws. In a word, it is not a judge's job to castigate a convict's moral failings. Moral failings are irrelevant to the law. And the law is the only thing that judges are constitutionally empowered to decide. Anything else they say is unauthorized fluff.
Judge Etelson-style grandstanding is not the only abomination that occurs in our criminal justice system. Now, criminal penalties also increasingly intertwine with psychiatry. Mr. Carter's case is no exception. In his sentence, Judge Etelson conditioned Mr. Carter's future with his wife on his agreement to take psychiatric medications. He also retained discretion whether to permit Mr. Carter to see her, depending on whether a psychiatrist could assure him that he was "well enough."
Are these judicial inquiries? If they are, do they not negate the State's moral outrage against Mr. Carter? After all, if the court believes that Mr. Carter needs psychiatric medication, that means he is mentally ill. If he was mentally ill at the time he struck his wife, that makes him far less morally blameworthy. After all, the criminal law depends upon free, rational choice for its moral strength. It is easy to condemn someone who knowingly makes a bad choice. But it is not easy to condemn someone who lacked the mental composure to make choices, let alone recognize they were wrong.
In this case, Judge Etelson tried to wear too many hats. He wanted to punish Mr. Carter for doing something that violated the law. But then he stepped back and ordered Mr. Carter to take psychiatric medications for his "mental problems." Put simply, judges are not psychiatrists. They are not social workers. It is not their job to monitor people's behavior once they serve their sentences. Nor is it their job to declare whether people are "normal." Rather, they are mere judicial officers, and it's not a complicated job. It is not about management; it is about judgment: Did the defendant do this or not? If he did, he goes to jail. If he didn't, he goes free.
There is undoubtedly a relationship between law and psychiatry. But a judge's only concern with psychiatry is to determine whether a defendant is mentally well enough to be criminally responsible. If he is, that ends the inquiry. In fact, judges must be extremely wary when dealing with psychiatry in criminal cases. After all, the entire rationale for criminal punishment collapses as soon as psychiatry shows that the defendant cannot make rational choices. In that light, judges should tread lightly when tampering with psychiatric issues. They might just discover that the "evil defendant" is really no ogre at all. He might just be "sick." And it is not proper to morally condemn sick people, let alone jail them for choices they could not make. For better or worse, the law only works on sane people.
I doubt that Judge Etelson understood all these issues when he entertained the news media during Dominic Carter's sentencing last week. From his perspective, he was in the spotlight and he was going to relish the moment. He was not content to play the neutral magistrate who calmly decrees the legal consequences of statutory violations. No, he had to play the scolding father, too, as well as the psychiatrist and the actor.
I do not like this. While it may be impossible to separate law from popular morality, judges should consciously try to do so. True, laws enshrine popular morality. But they are not moral weapons. They are technical guidelines. It does not matter whether a law-abiding citizen is moral; he must merely not violate the technical guidelines. Morality is about character. Law is about conduct. It is much easier to control conduct than character. And a judge simply declares whether the individual in question violated the conduct guideline.
Well, at least that's what a judge is supposed to do. American criminal law is changing for the worse because the distinction between morality and law is eroding every day. Just look at the Carter case. It's all right there to see.
Friday, January 8, 2010
APPLICATION DENIED : YOU ARE NOT APPROPRIATE
THE BUTTSON HOUSE CO-OPERATIVE, INC.
"Fine Residences in the Heart of Tribeca"
190 Franklin Street, New York, New York
January 8, 2010
Dear Mr. Farrell,
On behalf of the entire Board here at the Buttson House, I wish to thank you for your recent application to purchase a residential share with us. Despite your admirable resume, financial status and ability to pay for the share, we regret to inform you that we cannot sell the share to you because you lead an inappropriate lifestyle.
Two months ago, you expressed an interest in purchasing a two-bedroom residential share at 190 Franklin Street. Consistent with the Board's requirements, you duly submitted: (1) A resume listing past employers since 1980; (2) A certified letter from your current employer concerning your employment status, income level and bonus expectations; (3) Tax returns disclosing income since 1990; (4) Bank statements revealing savings levels since 1975; (5) A certified accountant's letter disclosing your current asset situation; (6) A marriage certificate; (7) A certified copy of your college degree, medical degree, law degree and engineering degree; and (8) A sworn affidavit declaring that all information you submitted was true, accurate and not misleading.
We salute you for complying with the Board's requirements. We are happy to report that you did not omit a single piece of information required under our procedures. You clearly have the financial and moral capacity to purchase a residential share from our cooperative.
However, despite your obvious financial ability to purchase the share from us, we refuse to sell it to you. Pursuant to cooperative By-Law Number 451.21, the Board independently investigated you after you submitted your application materials. Under the By-Laws, we are not required to alert you that that we conduct such investigations, nor do you have any right to question conclusions we make during the investigations. As a private entity duly licensed to do business in the State of New York, you have no legal recourse against us because we do not represent the State. Rather, we are a private corporation with full discretion whether to buy, sell or otherwise deal with any other private actor in the free market.
Our investigation disclosed several unfavorable facts about you. First, we learned that you do not cut your hair every week. To our minds, this reveals poor attention to personal hygiene, which in turn implies that you will not respect the property you intend to purchase from us. As a cooperative Board with an interest in maintaining a clean facility, we obviously worry about prospective shareholders who do not regularly cut their hair. We do not want unkempt ragamuffins with unfavorable hairstyles living under our roof, no matter how many stocks or bonds they own.
Second, our investigation disclosed that your middle name is Barfield. We found it anomalous that you did not list your middle name in your application materials. To our minds, your omission reveals a propensity for dishonesty that has no place at the Buttson House. Furthermore, even if you did reveal that your middle name was Barfield, we would have denied your application because we do not like that name. We believe that any name containing the word "Bar" would bring disrepute upon the Buttson House. We do not want others to think that bartenders, hobos, barmaids, wenches or drunks live in our building. Put simply, the name "Barfield" suggests all these things. As a cooperative Board with an interest in shareholder dignity--as well as public reputation--we simply cannot allow people named Barfield to live on our premises, even if they have all the money in the world.
Third, our investigators discovered that your left middle toe is 3 millimeters longer than your right middle toe. Although we sympathize with your deformity, we must advise that it makes us uncomfortable. We do not like the idea that a freak with two toe lengths might live in our building. To say the least, it is rather revolting. We understand that you keep your toes under socks during most public appearances, but that alone does not obviate the danger that you may appear in sandals, flip-flops or shower shoes in the Buttson House from time to time, particularly in the summer months. We are simply unwilling to subject our shareholders to the embarrassment of beholding your freakish toes during the summer. We cannot take the risk. Furthermore, under By-Law Number 4987.32(a), shareholders at the Buttson House have a right to refuse residence to anyone with unpleasant or inconsistent toe length, financial ability notwithstanding. Thus, we have technical grounds to deny your application for this reason alone.
Fourth, we learned that in 1996 you briefly worked as an artist during a break between jobs at financial institutions. Although this did not affect your financial health--in fact, you are a talented painter--we cannot tolerate former artists on our premises. As a cooperative Board committed to establishing a comfortable home for our shareholders, we take pains to ensure homogeneity in employment. All our residents work in the professions or in financial institutions. We do not house artists, tramps, free spirits or freelance writers. We do not want our residents to be subjected to inappropriate lifestyles, nor do we want artists making noise after 9 PM. In a word, our residents watch artists from the comfort of various concert venues in the Metropolitan area; they do not live among them. In a word, you were once an artist. That disqualifies you from obtaining a residence share at the Buttson House.
We understand that our decision may disappoint you. After all, it may appear to you that we have denied your application for completely unjustifiable reasons. But we really could care less. Under New York law, we can deny your application for any reason we wish; we are not a government agency. We can discriminate against you for any reason. We can turn you away because you have bad breath or because you are Mets fan rather than a Yankees fan. Put simply, we have unlimited discretion. We are the shareholders; you are the applicant. It is our club. We get to decide whether to let you in. Applying these powers, we hereby conclude that you are not appropriate.
We know that you have money. We know that you can afford the residence share for which you applied. But we just don't like you; it is as simple as that. If you were more like us, we might have approved your application. But that is just conjecture. Maybe we would have been in a bad mood that day. Who knows. The bottom line is that you're not getting this apartment.
Yours very truly,
Mr. B. Rockwell Merriman, Esq.,
Attorney-at-Law and Chairman of the Board of Directors
The Buttson House Cooperative, Inc.
Wednesday, January 6, 2010
LIFE IS NOT RATED PG-13
OESTERHOUDT STRIKES
Movie ratings amuse me. Whenever I see a movie poster, I always look at the rating box. In the old days, the rating box was simple: It just listed the rating (G, PG, PG-13, R or X), plus the general description for the rating. For G, it said "General Audiences." For R, it said "Restricted Audiences."
Now the rating box is a little more complicated. It still gives the rating and the general description. But it also gives "reasons" why the movie earned its rating. For example, it might say the movie is rated "R" because it contains "Nudity, Some Sexual Content and Drug Use." Or it may say the movie is rated "PG-13" for "Some Language, Adult Situations and Scary Images."
I know why there is a rating system. The Motion Picture Association of America started the system in order to help parents decide whether they should take their children to the movies. If a parent sees "R" at the bottom of a movie poster, then he or she would know not to take 6-year-old Johnny to see it.
But the rating system does more than "protect children from unsuitable content." I have written that it can also perform a political function by limiting access to a film if the "raters" do not like its message. An "R" rating, for instance, substantially reduces a film's potential audience by reducing the number of theaters that will show it. That, in turn, makes it more difficult for a film to reach a broad audience. In sum, raters can influence an artwork's communicative outreach by tacking on harsher ratings, even when they are not really warranted.
And who are these raters? What criteria move them? Put simply, they are private Americans with relatively little tolerance for "unconventional" ideas, language, themes, images or messages. They also have a very squeamish moral sense. Sex and nudity put them off more than violence. Breasts are more threatening than explosions and killing. If a movie even remotely strays into "controversial" ground, they will rate it "R." A straight make-out scene might only generate "PG-13." But a gay one would definitely yield an "R;" or maybe even "NC-17" if it is graphic enough. And if you dare to use the word "fuck" once in your movie: Forget it; that's an "R" for you. Hey, you could always opt for "fudge" to save your
box office.
What explains this hypersensitivity? Is it really all about the children? Why should movies that deal with "real-life things" earn harsher ratings than meaningless fluff?
Consider this: I recently saw a movie poster with a "PG-13" rating because it contained "Some Smoking." Say what? Smoking? Since when did smoking become a taboo subject? Do we really believe that our children will turn into criminals because they see someone smoking a cigarette onscreen?
I mention this for three reasons. First, I do not like the moral hypersensitivity in the movie rating system. Second, it is just not possible to shield children from every single allegedly "bad" thing in life. Third, there is little correspondence between what happens in movies and what happens in actual human experience.
Children see smoking all the time. They do not need to be 13 to know that people smoke. In fact, if their parents smoke, they probably have known about smoking since the moment they could form memories. Even if their parents don't smoke, it does not take long to see someone else smoking outside. Smoking is everywhere. Sure, it's not good for your health. But it's part of life. There's no sense morally rebuking a movie simply because it shows something that millions of people do every single day. And there's even less sense in attempting to prevent children from learning about it: Chances are they already know.
There is so much about movies that is totally unrealistic, even in movies that claim to portray reality. Movies are a fascinating medium because they lead viewers into a dimension that closely resembles reality. Yet on reflection, it is clear that they are not real--not even close. Life does not have snappy dialogue, segue cutscenes or a melodramatic soundtrack. It does not have a set run-time, either. Put simply, there is a wide range of human experience that will never appear on a movie screen. And even the most banal things--like going to the bathroom or sexuality--often earn harsh scolding from the raters.
We do and say things every day in our lives that would lead to an "R" rating or worse. Just getting undressed to get in the shower pushes us into "NC-17" territory. The human body, in other words, is a taboo subject. And movies are supposed to represent reality? How could they when they don't even show the most basic things that people do and say every day?
Movies are artificial. They do not represent reality. In that light, it is foolish to rely on them to form impressions about life because there is so much about life that they never portray.
Movie ratings are artificial, too. If anything, they simply measure the moral qualms of a few squeamish Americans. It is too bad that the raters have such a strong influence on what millions of people see on movie screens.
All I know is that my own life is not even close to PG-13. It's been NC-17 since before I could even talk. If you've ever been naked in your life, you're rated "R" at least.
Movies might spare the faint of heart. But life doesn't. This shit is rough.
Movie ratings amuse me. Whenever I see a movie poster, I always look at the rating box. In the old days, the rating box was simple: It just listed the rating (G, PG, PG-13, R or X), plus the general description for the rating. For G, it said "General Audiences." For R, it said "Restricted Audiences."
Now the rating box is a little more complicated. It still gives the rating and the general description. But it also gives "reasons" why the movie earned its rating. For example, it might say the movie is rated "R" because it contains "Nudity, Some Sexual Content and Drug Use." Or it may say the movie is rated "PG-13" for "Some Language, Adult Situations and Scary Images."
I know why there is a rating system. The Motion Picture Association of America started the system in order to help parents decide whether they should take their children to the movies. If a parent sees "R" at the bottom of a movie poster, then he or she would know not to take 6-year-old Johnny to see it.
But the rating system does more than "protect children from unsuitable content." I have written that it can also perform a political function by limiting access to a film if the "raters" do not like its message. An "R" rating, for instance, substantially reduces a film's potential audience by reducing the number of theaters that will show it. That, in turn, makes it more difficult for a film to reach a broad audience. In sum, raters can influence an artwork's communicative outreach by tacking on harsher ratings, even when they are not really warranted.
And who are these raters? What criteria move them? Put simply, they are private Americans with relatively little tolerance for "unconventional" ideas, language, themes, images or messages. They also have a very squeamish moral sense. Sex and nudity put them off more than violence. Breasts are more threatening than explosions and killing. If a movie even remotely strays into "controversial" ground, they will rate it "R." A straight make-out scene might only generate "PG-13." But a gay one would definitely yield an "R;" or maybe even "NC-17" if it is graphic enough. And if you dare to use the word "fuck" once in your movie: Forget it; that's an "R" for you. Hey, you could always opt for "fudge" to save your
box office.
What explains this hypersensitivity? Is it really all about the children? Why should movies that deal with "real-life things" earn harsher ratings than meaningless fluff?
Consider this: I recently saw a movie poster with a "PG-13" rating because it contained "Some Smoking." Say what? Smoking? Since when did smoking become a taboo subject? Do we really believe that our children will turn into criminals because they see someone smoking a cigarette onscreen?
I mention this for three reasons. First, I do not like the moral hypersensitivity in the movie rating system. Second, it is just not possible to shield children from every single allegedly "bad" thing in life. Third, there is little correspondence between what happens in movies and what happens in actual human experience.
Children see smoking all the time. They do not need to be 13 to know that people smoke. In fact, if their parents smoke, they probably have known about smoking since the moment they could form memories. Even if their parents don't smoke, it does not take long to see someone else smoking outside. Smoking is everywhere. Sure, it's not good for your health. But it's part of life. There's no sense morally rebuking a movie simply because it shows something that millions of people do every single day. And there's even less sense in attempting to prevent children from learning about it: Chances are they already know.
There is so much about movies that is totally unrealistic, even in movies that claim to portray reality. Movies are a fascinating medium because they lead viewers into a dimension that closely resembles reality. Yet on reflection, it is clear that they are not real--not even close. Life does not have snappy dialogue, segue cutscenes or a melodramatic soundtrack. It does not have a set run-time, either. Put simply, there is a wide range of human experience that will never appear on a movie screen. And even the most banal things--like going to the bathroom or sexuality--often earn harsh scolding from the raters.
We do and say things every day in our lives that would lead to an "R" rating or worse. Just getting undressed to get in the shower pushes us into "NC-17" territory. The human body, in other words, is a taboo subject. And movies are supposed to represent reality? How could they when they don't even show the most basic things that people do and say every day?
Movies are artificial. They do not represent reality. In that light, it is foolish to rely on them to form impressions about life because there is so much about life that they never portray.
Movie ratings are artificial, too. If anything, they simply measure the moral qualms of a few squeamish Americans. It is too bad that the raters have such a strong influence on what millions of people see on movie screens.
All I know is that my own life is not even close to PG-13. It's been NC-17 since before I could even talk. If you've ever been naked in your life, you're rated "R" at least.
Movies might spare the faint of heart. But life doesn't. This shit is rough.
Tuesday, January 5, 2010
BIRTHRATES AND HOMOSEXUALITY : A CLASSICAL PERSPECTIVE AND A WORD ON TRADITION-BASED ARGUMENTS
AN ESSAY
Over the last few weeks, I have been delving deeper into Aristotle's Politics. In a previous essay, I wrote that I had begun to read Aristotle with more forgiveness. Now, I can confidently say that some of his ideas actually "work" for me. I no longer cast a suspicious eye on everything he writes. Rather, I closely evaluate his arguments to parse points that make sense to me.
In the past, I criticized Aristotle because he was too metaphysical. He presumed that everything on earth has an identifiable "purpose," and that absolute "truth" was obtainable by analyzing various interactions between "purposes." I first read Aristotle when I was college. At the time, I was making discoveries about my own sexuality. Aristotle's metaphysics appeared to argue against "non-procreative" sexuality because "male sexual organs" and "female sexual organs" have absolute, reproductive "purposes." Accordingly, using sexual organs for purposes beyond procreation amounted to "misuse." It is not surprising that the medieval Church and the modern Catholic Church closely read Aristotle. They used this very argument to demonize all sexuality-- with special vehemence reserved for homosexuality.
But a much different picture emerged when I sat down to read Aristotle again. Rather than condemning homosexuality as an abomination--as I always assumed he did, without ever reading as much--he espoused a much less judgmental attitude. To the contrary, he seemed to echo my own belief that homosexuality exists in nature, and that it makes little sense to condemn it. See, e.g., http://reasoncommercejustice.blogspot.com/2009/01/oesterhoudt-strikes.html.
In analyzing the Spartan Constitution, for example, Aristotle reasons as a biologist, observing: "[C]ertainly all people seem compulsively attracted by sexual relations, either with males or females." The Politics, Book II, Ch. ix ¶ 1269b23. Earlier in the same paragraph, he actually praises "societies in which male homosexuality is openly esteemed," because male-centered societies--unlike Sparta--tend to keep avaricious women in check. Id. Aristotle believed that males "naturally" ruled females; thus, it was more an abomination to tolerate females "ruling" men than to allow males to have sex with each other. But in the final analysis, Aristotle suggests that sexuality is natural, no matter whether it involves males or females. Human beings are simply "compulsively attracted" by sexual relations. And that "compulsion" does not draw a bright gender line.
Aristotle does not simply conclude that homosexuality is natural. He even observes that homosexuality performs an essential State function by restraining birthrates. In analyzing the Cretan Constitution, he notes that the lawgiver actually prescribed "sexual relations between males" in order to "keep[] down the birthrate." The Politics, Book II, Ch. x ¶ 1272a12. He also notes that the lawgiver strictly separated males and females in order to prevent unnecessary pregnancies. Id. Put another way, the Cretan lawgiver understood that all human beings are "compulsively attracted by sexual relations" with each other, so he allowed both men and women to find sexual outlets in a manner that would not bankrupt the Kingdom by overpopulation.
I found this fascinating for several reasons. First, I never thought that a classical philosopher--let alone Aristotle--would argue that homosexuality could actually be exploited to fulfill a beneficial State objective. I always thought that Western governments took a moral stance against homosexuality. Apparently that is not true. In the Politics, Aristotle frankly discusses homosexuality as both a natural phenomenon and worthwhile social policy. Morality does not even enter the analysis.
Second, I found it interesting that Aristotle repeatedly speaks out against birthrates. Although he only mentions homosexuality in connection with birthrates in the Cretan example, he mentions low birthrates many times throughout the Politics. He equates high birthrates with poverty, discord and ruin. At the same time, he praises States that carefully control their populations. This makes sense given Aristotle's belief that States should strive to cultivate "good" people, not just "many" people.
Aristotle's views on homosexuality and birthrates fundamentally differ from modern views on the same subjects. For centuries, Western society has learned to revile homosexuality in all its manifestations. Church dogma called homosexuality a "sin;" it warned homosexuals that they would go to hell if they "practiced" it. The law labeled it a "crime;" it warned homosexuals that they would be executed or imprisoned for it. Even the scientific community diagnosed it as a "disease;" psychiatrists did not remove it from the book of "mental illnesses" until about 1970.
Although extreme institutional intolerance toward homosexuality has slowly weakened over time, there remains a virulent moral strain against homosexuality in Western societies. It is still "not normal." It is still somehow illegitimate and "disgusting." Put another way, it may not be "illegal" anymore; but it is still "immoral." Despite some modest legal advances in recent years (i.e., it is no longer constitutionally permissible to jail gay men for having sex), these attitudes force homosexuals to live on the fringes of society. They risk everything by living truthfully. They face a difficult decision whether to tell others about their own sexuality, a decision that no other people need to worry about in society. Or they can simply to choose to live in secret.
These are hardly appetizing decisions to make in life.
Against this background, it is almost inconceivable that a respected scholar would suggest that homosexuality is "natural," let alone that it could serve a "beneficial social purpose." If anything, attitudes toward homosexuality in Western civilization reveal little more than contempt. Until the late 19th Century, "sodomites" hanged in Great Britain. That is a far, far cry from Aristotle's argument that homosexuality actually could provide a benefit to society through lower birthrates.
But Western societies traditionally do not like low birthrates, either. That is why Aristotle's views on low birthrates seem so fascinating today. Historically, Western societies have done their best to encourage high birthrates. They have generally wanted to increase their populations. This coincided with Church dogma that men and women should "honor God" by "blessing Him" with as many offspring as possible. Just as the Church preached against homosexuality, so too did it praise prolific childbearing.
Modern America is no exception to these attitudes. For the most part, the United States encourages procreation among its citizens. Families with many children earn social praise, even congratulations. By the same token, modern America does not fully tolerate homosexuality. Homosexuals, after all, do not procreate. Is there a conceptual link between historical hatred for homosexuals and their inability to contribute to the birthrate?
Is there a moral link? After all, Western history shows that high birthrates bespeak "moral" living, while homosexuality bespeaks "immorality" because it does not contribute to the birthrate. In this sense, there is an inverse relationship between homosexuality and birthrates in modern society: The capacity for high birthrates is moral and good, while homosexuality is immoral and bad because it does not lead to high birthrates.
These views have reigned in the West for centuries. But a quick read through Aristotle reveals that it has not always been so. If a philosopher as renowned as Aristotle suggested that homosexuality is natural and that low birthrates are good, what does that say about "traditional" Western views on these subjects? After all, those who demonize homosexuality as an immoral abomination prize arguments based in "tradition." They say that "tradition" provides a reason to hate homosexuality because "our society has always reviled homosexuality."
But what if "tradition" is wrong? Or at least conveniently tailored to meet ideological ends? When it comes to homosexuality, Aristotle provides a historical example that not everyone in the "Western tradition" thought homosexuality was an abomination. Put simply, Aristotle's divergence from the so-called "tradition against homosexuality" shows that "tradition" arguments can be very misleading. After all, it is easy to just ignore inconvenient voices in a historical tradition, then call the tailored version "tradition."
I do not think that "tradition" categorically supports an argument that homosexuality is necessarily "immoral," or that high birthrates are necessarily "good." We simply must reference Aristotle to wreck any argument that "tradition" on these subjects has been unanimous. It hasn't.
And to those who think arguments based in tradition somehow carry special weight, I offer another quote from Aristotle to temper reliance on tailored history: "Generally, of course, it is the good, and not simply the traditional, that is aimed at." The Politics, Book II, Ch. viii ¶1269a3.
Put another way, it is no answer to a problem to say: "That's the way we've always done it." Solving problems takes independent thought, not blind imitation or historical charades.
Over the last few weeks, I have been delving deeper into Aristotle's Politics. In a previous essay, I wrote that I had begun to read Aristotle with more forgiveness. Now, I can confidently say that some of his ideas actually "work" for me. I no longer cast a suspicious eye on everything he writes. Rather, I closely evaluate his arguments to parse points that make sense to me.
In the past, I criticized Aristotle because he was too metaphysical. He presumed that everything on earth has an identifiable "purpose," and that absolute "truth" was obtainable by analyzing various interactions between "purposes." I first read Aristotle when I was college. At the time, I was making discoveries about my own sexuality. Aristotle's metaphysics appeared to argue against "non-procreative" sexuality because "male sexual organs" and "female sexual organs" have absolute, reproductive "purposes." Accordingly, using sexual organs for purposes beyond procreation amounted to "misuse." It is not surprising that the medieval Church and the modern Catholic Church closely read Aristotle. They used this very argument to demonize all sexuality-- with special vehemence reserved for homosexuality.
But a much different picture emerged when I sat down to read Aristotle again. Rather than condemning homosexuality as an abomination--as I always assumed he did, without ever reading as much--he espoused a much less judgmental attitude. To the contrary, he seemed to echo my own belief that homosexuality exists in nature, and that it makes little sense to condemn it. See, e.g., http://reasoncommercejustice.blogspot.com/2009/01/oesterhoudt-strikes.html.
In analyzing the Spartan Constitution, for example, Aristotle reasons as a biologist, observing: "[C]ertainly all people seem compulsively attracted by sexual relations, either with males or females." The Politics, Book II, Ch. ix ¶ 1269b23. Earlier in the same paragraph, he actually praises "societies in which male homosexuality is openly esteemed," because male-centered societies--unlike Sparta--tend to keep avaricious women in check. Id. Aristotle believed that males "naturally" ruled females; thus, it was more an abomination to tolerate females "ruling" men than to allow males to have sex with each other. But in the final analysis, Aristotle suggests that sexuality is natural, no matter whether it involves males or females. Human beings are simply "compulsively attracted" by sexual relations. And that "compulsion" does not draw a bright gender line.
Aristotle does not simply conclude that homosexuality is natural. He even observes that homosexuality performs an essential State function by restraining birthrates. In analyzing the Cretan Constitution, he notes that the lawgiver actually prescribed "sexual relations between males" in order to "keep[] down the birthrate." The Politics, Book II, Ch. x ¶ 1272a12. He also notes that the lawgiver strictly separated males and females in order to prevent unnecessary pregnancies. Id. Put another way, the Cretan lawgiver understood that all human beings are "compulsively attracted by sexual relations" with each other, so he allowed both men and women to find sexual outlets in a manner that would not bankrupt the Kingdom by overpopulation.
I found this fascinating for several reasons. First, I never thought that a classical philosopher--let alone Aristotle--would argue that homosexuality could actually be exploited to fulfill a beneficial State objective. I always thought that Western governments took a moral stance against homosexuality. Apparently that is not true. In the Politics, Aristotle frankly discusses homosexuality as both a natural phenomenon and worthwhile social policy. Morality does not even enter the analysis.
Second, I found it interesting that Aristotle repeatedly speaks out against birthrates. Although he only mentions homosexuality in connection with birthrates in the Cretan example, he mentions low birthrates many times throughout the Politics. He equates high birthrates with poverty, discord and ruin. At the same time, he praises States that carefully control their populations. This makes sense given Aristotle's belief that States should strive to cultivate "good" people, not just "many" people.
Aristotle's views on homosexuality and birthrates fundamentally differ from modern views on the same subjects. For centuries, Western society has learned to revile homosexuality in all its manifestations. Church dogma called homosexuality a "sin;" it warned homosexuals that they would go to hell if they "practiced" it. The law labeled it a "crime;" it warned homosexuals that they would be executed or imprisoned for it. Even the scientific community diagnosed it as a "disease;" psychiatrists did not remove it from the book of "mental illnesses" until about 1970.
Although extreme institutional intolerance toward homosexuality has slowly weakened over time, there remains a virulent moral strain against homosexuality in Western societies. It is still "not normal." It is still somehow illegitimate and "disgusting." Put another way, it may not be "illegal" anymore; but it is still "immoral." Despite some modest legal advances in recent years (i.e., it is no longer constitutionally permissible to jail gay men for having sex), these attitudes force homosexuals to live on the fringes of society. They risk everything by living truthfully. They face a difficult decision whether to tell others about their own sexuality, a decision that no other people need to worry about in society. Or they can simply to choose to live in secret.
These are hardly appetizing decisions to make in life.
Against this background, it is almost inconceivable that a respected scholar would suggest that homosexuality is "natural," let alone that it could serve a "beneficial social purpose." If anything, attitudes toward homosexuality in Western civilization reveal little more than contempt. Until the late 19th Century, "sodomites" hanged in Great Britain. That is a far, far cry from Aristotle's argument that homosexuality actually could provide a benefit to society through lower birthrates.
But Western societies traditionally do not like low birthrates, either. That is why Aristotle's views on low birthrates seem so fascinating today. Historically, Western societies have done their best to encourage high birthrates. They have generally wanted to increase their populations. This coincided with Church dogma that men and women should "honor God" by "blessing Him" with as many offspring as possible. Just as the Church preached against homosexuality, so too did it praise prolific childbearing.
Modern America is no exception to these attitudes. For the most part, the United States encourages procreation among its citizens. Families with many children earn social praise, even congratulations. By the same token, modern America does not fully tolerate homosexuality. Homosexuals, after all, do not procreate. Is there a conceptual link between historical hatred for homosexuals and their inability to contribute to the birthrate?
Is there a moral link? After all, Western history shows that high birthrates bespeak "moral" living, while homosexuality bespeaks "immorality" because it does not contribute to the birthrate. In this sense, there is an inverse relationship between homosexuality and birthrates in modern society: The capacity for high birthrates is moral and good, while homosexuality is immoral and bad because it does not lead to high birthrates.
These views have reigned in the West for centuries. But a quick read through Aristotle reveals that it has not always been so. If a philosopher as renowned as Aristotle suggested that homosexuality is natural and that low birthrates are good, what does that say about "traditional" Western views on these subjects? After all, those who demonize homosexuality as an immoral abomination prize arguments based in "tradition." They say that "tradition" provides a reason to hate homosexuality because "our society has always reviled homosexuality."
But what if "tradition" is wrong? Or at least conveniently tailored to meet ideological ends? When it comes to homosexuality, Aristotle provides a historical example that not everyone in the "Western tradition" thought homosexuality was an abomination. Put simply, Aristotle's divergence from the so-called "tradition against homosexuality" shows that "tradition" arguments can be very misleading. After all, it is easy to just ignore inconvenient voices in a historical tradition, then call the tailored version "tradition."
I do not think that "tradition" categorically supports an argument that homosexuality is necessarily "immoral," or that high birthrates are necessarily "good." We simply must reference Aristotle to wreck any argument that "tradition" on these subjects has been unanimous. It hasn't.
And to those who think arguments based in tradition somehow carry special weight, I offer another quote from Aristotle to temper reliance on tailored history: "Generally, of course, it is the good, and not simply the traditional, that is aimed at." The Politics, Book II, Ch. viii ¶1269a3.
Put another way, it is no answer to a problem to say: "That's the way we've always done it." Solving problems takes independent thought, not blind imitation or historical charades.
Sunday, January 3, 2010
WHOM WOULD YOU RATHER KILL? A MAN OR A DOG?
OESTERHOUDT STRIKES
We learn from earliest childhood that "killing is bad." We have a natural moral sense that ending lives is generally not a good (and certainly not a nice) thing to do. Along the same lines, we learn that "life is valuable." We especially learn this when it comes to human lives. Animal lives are, well, not as valuable.
Some people genuinely take these lessons to heart. Abortion opponents, for instance, say that "all potential life is valuable." That means that not just full-grown adults do not deserve to die, but also tiny cell clusters that might one day develop into fetuses. Some even think that any potential life is valuable. But this reaches into absurdity. After all, every ejaculation and ovulation cycle represents "potential life." Surely it is neither sin nor murder to have a period or to ejaculate without an intention to procreate.
But all "life rhetoric" is vexingly biased. After all, who speaks up for non-human life? All cellular organisms are "alive." They all "die" when their necessary cellular functions cease. Is it somehow distressing, then, when a cow dies? How about a cockroach? Or a tree? These things are all "life." Yet no one marches to stop "tree murder," and no one wails when a raccoon dies in the wilderness. Put simply, when people say they "believe in life," they really mean that they believe in "human life." After all, people have an interest in staying alive. From a biological perspective, no living creature wants to die. A few people, of course, want to kill themselves. In the aggregate, however, most living humans want to stay alive.
Despite all this, even those who feverishly "defend human life" are not absolutists. Even people who fight tooth and nail to defend the unborn--or lament wasted sperm--have exceptions to their rule. After all, many people think that some human life is not worth preserving. When a man "deserves" to die, even the staunchest life defenders do not intervene to save him. I always found it amusing that most abortion defenders support capital punishment. I find it even more amusing that some particularly fiery abortion defenders murder doctors in order to prevent abortions. How's that for a problematic principle? All life is precious; but some people deserve to be killed. It's enough to boggle one's mind--or even laugh, if it weren't so serious.
Perhaps it is not so surprising after all. In fact, I venture that most people actually have little problem killing their fellow man. In fact, I think most people would have an easier time killing a man than a "lesser life form," like a dog or a deer. Despite all the things we learn about killing others, I think most people just need to be pushed far enough in order to kill another human being. And not just kill--gleefully kill.
And that's the difference: Men must be pushed to kill another person. Only human beings have the capacity to taunt, insult, degrade, abuse and denigrate their fellows. They can cause untold misery to one another, both physically and psychologically. The urge to kill builds in proportion to the misery a person endures at another's hands. Sometimes it does not even take that much to push a person over the edge. Think about road rage killings and drunken barroom squabbles. Men exchange words. Their emotions fly off the handle. Next thing you know, someone is dead. In other cases, a person suffers chronic abuse and finally snaps. Consider the beaten wife who just can't take it any more and slits her husband's throat while he sleeps.
In short, people kill each other for comparatively little. Maybe life is not that sacred after all.
But the same people who gladly kill their fellow man might have trouble killing a puppy dog. After all, people who kill over abuse or petty arguments do so because humans have a unique ability to arouse enmity in one another. In the moment before a man stabs a rival who insulted his girlfriend, he thinks: "I'm gonna kill this fucking asshole." In other words, the human capacity for intent leads men to kill each other. It even makes killing easy in the right circumstances.
Not so with a dog. Why would anyone want to kill an innocent little puppy? Everyone knows that a puppy can't cause any harm. It can't lie, deceive, insult, connive, abuse, beat, torture or tyrannize. It can do none of the things that arouse homicidal rage in human beings. If it came between an innocent puppy dog and a hated tormentor who slaps and insults you all day for weeks on end, I don't think I'm stretching to suggest that most people would much rather kill the man than the dog.
In a word, it is facetious to claim that "all human life is sacred." Our own behavior proves us wrong when we do. The truth is that human beings drive us crazy from time to time. They drive us so crazy, in fact, that we become all too willing to kill them if the circumstances impel us. Only humans have the capacity to arouse such furious, homicidal rages. Puppies have no such capacity. That is why-- if given the choice--I think most people would rather kill a detested, tyrannical person than an innocent dog.
We learn from earliest childhood that "killing is bad." We have a natural moral sense that ending lives is generally not a good (and certainly not a nice) thing to do. Along the same lines, we learn that "life is valuable." We especially learn this when it comes to human lives. Animal lives are, well, not as valuable.
Some people genuinely take these lessons to heart. Abortion opponents, for instance, say that "all potential life is valuable." That means that not just full-grown adults do not deserve to die, but also tiny cell clusters that might one day develop into fetuses. Some even think that any potential life is valuable. But this reaches into absurdity. After all, every ejaculation and ovulation cycle represents "potential life." Surely it is neither sin nor murder to have a period or to ejaculate without an intention to procreate.
But all "life rhetoric" is vexingly biased. After all, who speaks up for non-human life? All cellular organisms are "alive." They all "die" when their necessary cellular functions cease. Is it somehow distressing, then, when a cow dies? How about a cockroach? Or a tree? These things are all "life." Yet no one marches to stop "tree murder," and no one wails when a raccoon dies in the wilderness. Put simply, when people say they "believe in life," they really mean that they believe in "human life." After all, people have an interest in staying alive. From a biological perspective, no living creature wants to die. A few people, of course, want to kill themselves. In the aggregate, however, most living humans want to stay alive.
Despite all this, even those who feverishly "defend human life" are not absolutists. Even people who fight tooth and nail to defend the unborn--or lament wasted sperm--have exceptions to their rule. After all, many people think that some human life is not worth preserving. When a man "deserves" to die, even the staunchest life defenders do not intervene to save him. I always found it amusing that most abortion defenders support capital punishment. I find it even more amusing that some particularly fiery abortion defenders murder doctors in order to prevent abortions. How's that for a problematic principle? All life is precious; but some people deserve to be killed. It's enough to boggle one's mind--or even laugh, if it weren't so serious.
Perhaps it is not so surprising after all. In fact, I venture that most people actually have little problem killing their fellow man. In fact, I think most people would have an easier time killing a man than a "lesser life form," like a dog or a deer. Despite all the things we learn about killing others, I think most people just need to be pushed far enough in order to kill another human being. And not just kill--gleefully kill.
And that's the difference: Men must be pushed to kill another person. Only human beings have the capacity to taunt, insult, degrade, abuse and denigrate their fellows. They can cause untold misery to one another, both physically and psychologically. The urge to kill builds in proportion to the misery a person endures at another's hands. Sometimes it does not even take that much to push a person over the edge. Think about road rage killings and drunken barroom squabbles. Men exchange words. Their emotions fly off the handle. Next thing you know, someone is dead. In other cases, a person suffers chronic abuse and finally snaps. Consider the beaten wife who just can't take it any more and slits her husband's throat while he sleeps.
In short, people kill each other for comparatively little. Maybe life is not that sacred after all.
But the same people who gladly kill their fellow man might have trouble killing a puppy dog. After all, people who kill over abuse or petty arguments do so because humans have a unique ability to arouse enmity in one another. In the moment before a man stabs a rival who insulted his girlfriend, he thinks: "I'm gonna kill this fucking asshole." In other words, the human capacity for intent leads men to kill each other. It even makes killing easy in the right circumstances.
Not so with a dog. Why would anyone want to kill an innocent little puppy? Everyone knows that a puppy can't cause any harm. It can't lie, deceive, insult, connive, abuse, beat, torture or tyrannize. It can do none of the things that arouse homicidal rage in human beings. If it came between an innocent puppy dog and a hated tormentor who slaps and insults you all day for weeks on end, I don't think I'm stretching to suggest that most people would much rather kill the man than the dog.
In a word, it is facetious to claim that "all human life is sacred." Our own behavior proves us wrong when we do. The truth is that human beings drive us crazy from time to time. They drive us so crazy, in fact, that we become all too willing to kill them if the circumstances impel us. Only humans have the capacity to arouse such furious, homicidal rages. Puppies have no such capacity. That is why-- if given the choice--I think most people would rather kill a detested, tyrannical person than an innocent dog.
Wednesday, December 23, 2009
LAW OR MORALITY? THE PROBLEM WITH UNDERAGE DRINKING LAWS
OESTERHOUDT STRIKES
Several days ago, I saw a curious poster alongside the usual commercial garbage on 22nd Street. Next to a print ad for Lady Gaga's new album and a placard about McDonald's meal deals stood this message: "The Legal Drinking Age is 21. Do Your Part This Christmas. Don't Give Alcohol to Teens." The poster showed a wine glass with a Ghostbusters-style red circle around it; a red diagonal line crossed out the glass. On the bottom appeared the following slogan in stern capital letters: "Serving Alcohol to Teens : It's Unsafe. It's Illegal. It's Irresponsible."
What made this "ad" so curious? Several things. First, it was not a commercial message. Most "ads" are crass commercial messages that aim to excite an urge to buy in the viewer. They communicate selective information intended to entice a person to spend money and enrich the speaker. In short, advertising is about making money. It is morally indifferent. In fact, it is morally destitute. Morality and commerce have little to do with one another. A dirty dollar is still a dollar. And people with more dollars are stronger than those with fewer dollars, dirty or not.
In traditional terms, then, this message against underage drinking was not an "ad" at all. It did not aim to excite an urge to buy in the passing viewer. No, it aimed to evoke a moral impulse; it beseeched people not to buy alcohol for people under 21. It asked people to refrain from commercial activity. If an advertising firm came up with a campaign that asked people to refrain from buying the product, it would go out of business faster than you can say: "Madison Avenue." In that sense, this message to stop underage drinking was not an "ad." It was an anti-ad.
But what good is an "ad" if it does not propose a commercial transaction? Can "ads" also promote morality? This one certainly tried. As long as an organization coughs up cash to buy posters or airtime, they can say basically whatever they want. It is their choice whether to say something that will generate no profit. Advertisers generally only advertise commercial stuff because it has the potential to create profits. And no one does anything in business that does not attempt to make money. Morality does not create profits. You can't buy it and it's not very exciting. Face it: It's easier to sell Dewar's than chastity.
In this light, we can conclude that some nonprofit organization paid for this message. It did not intend to make money with its speech. Rather, it aimed to foster public morality. Of course, the poster never uses the word "morality." In fact, everyone who supports underage drinking laws rarely speaks the word. Rather, they couch the issue in legal terms. The poster, for example, references the law twice: "The legal drinking age is 21;" "It's illegal to give alcohol to teens." It is easy to make a law; you just need a majority vote at the State house. But the underlying message here is moral, not legal. And it plays upon the popular confusion between law and morality.
People always mistake the law for morality. Morality existed among human beings before law. Morality refers to the average man's sense that something is disgusting or intuitively objectionable. It has more to do with popular social values than reason or abstract truth. Men created laws to embody their moral judgments, but law never could--and never will--supplant morality. In fact, the law is supposed to be morally neutral. It is supposed to operate according to pure reason and extrinsic evidence. Morality, by contrast, appeals to deep-seated intuitive prejudice against particular conduct within the dominant value system. When enough people in a society think something is disgusting, they call it "immoral." And that judgment passes down across generations. They don't need to verify it. They just need to feel it.
Still, people have more outward respect for the law than morality. It sounds more official. After all, the law has sovereign power behind it. It can attach bank accounts, imprison bodies and garnish wages. People fear those consequences. Morality, by contrast, is more basic than that. Morality informs almost everything a society does. Law simply represents the society's effort to assure a minimum baseline of behavior consistent with the dominant moral code.
Law enforces morality. The sovereign enforces the law with penalties on the body and property. But unlike morality, there are practical problems associated with enforcing the law. The sovereign cannot punish everyone for every illegal or immoral act that occurs. And there are some immoral acts that are not even illegal. The law must verify acts before it can punish them. That is not always easy.
Why, then, did the underage drinking poster harp on "illegality" in connection with serving alcohol to teens? After all, the overall message was a moral one. On a basic level, Americans have a troubled--and borderline schizophrenic--relationship with alcohol due to their cultural and religious heritage. The same cultural forces that culminated in Prohibition remain at work today in American society. Hostility toward alcohol is a moral judgment; it has to do with social values and disgust, not reason. Americans have always embodied their moral judgments about alcohol in law. The law gives official expression to their traditional moral queasiness on the subject. But to be abundantly clear, hostility toward alcohol--especially when coupled with children--is a uniquely American moral judgment.
Consider the interplay between law and morality in the poster. Even without understanding America's long history with regard to morally-nuanced alcohol regulations, the poster's own language reveals the connection. It says: " Serving Alcohol to Teens : It's Unsafe. It's Illegal. It's Irresponsible." It draws a linguistic connection between "illegality" and "irresponsibility." Strictly speaking, it is not "illegal" to be irresponsible. In American cultural parlance, however, "responsibility" is a sweeping moral judgment. It refers to "proper living" according to dominant social morals. That means acting and thinking in a certain way, especially when it comes to recognizing obligations and power relationships.
But "legality" is a technical inquiry. Unlike morality, the law must be specific in its prohibitions. Any aggrieved mother can complain that her child is "irresponsible" because he is not "living correctly." Yet that does not mean the child is acting "illegally." Legal violations must match specific language. They must be investigated and proved according to objective procedures. Yes, it might be irresponsible to violate the law. But not all "irresponsibility" is illegal. If it were, virtually everyone would be a criminal.
It is significant that the poster equated legality with responsibility. It forges a direct thematic connection between law and morality. In most cases, the average viewer has no idea that the two concepts are distinct. He simply assumes that all laws are moral, and that moral people are responsible. That assumption is false. Yet the law benefits from the false assumption because morality acts as a sort of "self-executing enforcement mechanism." After all, people stop themselves from acting in a particular fashion when they think it is "immoral." No law constrains them. Rather, innate cultural conditioning influences their decisions. If the law can harness that innate cultural conditioning, it can successfully thwart certain behavior before it happens. And from the law's perspective, whenever someone refrains from prohibited behavior, it has done its job. If morality helps enforcement, then the law will appeal to morality. It does not matter that the law has no power to shape individual morals.
At this point, however, a substantial problem arises: What is so immoral about serving alcohol to a 20-year-old? Or even a 14-year-old? This suggestion might arouse revulsion in the typical American listener. But that shows once again that underage drinking is essentially a moral issue. After all, Americans somehow feel queasy when they think that children are drinking alcohol. That reaction is a cultural. It has survived for generations.
And it is not a universal reaction. People in European Nations, for instance, do not flinch to serve alcohol to teenagers. There is no dominant public rhetoric that equates underage drinking with illegality, irresponsibility and "evil." Quite the contrary, life goes on in Germany, France, England and Holland quite well, even when 16-year-olds sip beer--even in public. Society does not collapse. The sky does not fall. And religious leaders do not spread hellfire for it.
In my mind, this illustrates the point that American concerns over underage drinking are essentially moral concerns. No matter how much public rhetoric couches the debate in legal terms, the fact remains that Americans just don't feel culturally comfortable with the idea that teenagers are drinking. It is a question of cultural heritage, not wise policy.
Of course, those who support widespread bans on underage drinking will never say that morality motivates them. In fact, they probably do not even realize that it does. Instead, they point to safety statistics and other supposedly "neutral" indicia to show a "practical" reason why teenagers should not drink. Because fewer teens die in alcohol-related accidents, they say, underage drinking bans are good laws.
I think this is a dishonest argument. If safety were really the main objection to alcohol, Prohibition should still be in effect. Alcohol causes untold damage to countless lives every year, not just among teenagers. It causes thousands of accidents. It ruins families. It leads to violence, disruption and turmoil. Why protect only children from those hazards? If a legislator identifies negative social consequences that flow from a particular behavior, he should ban that behavior in toto. Only a fool would argue that alcohol does not cause myriad social problems. Yet for some reason Americans tolerate those consequences among adults, but refuse to tolerate them among children.
At this juncture, it is hard to escape identifying some hypocrisy in the clamor over underage drinking. After all, the essential argument against underage drinking is to ensure safety. But if safety were the ultimate goal, then all alcohol should be banned, not just some. Yet despite Americans' moral qualms about underage drinking, they sure love to drink. So all their talk about safety goes out the window because they want to keep drinking. They can be "responsible" with their drinking, even though experience shows that alcohol continues to ruin lives on a daily basis. Yet they have the gall to label underage drinking "immoral." Immoral for some, but not for them? This is deeply problematic. And it renders all opposition to underage drinking disingenuous.
Let's be honest about alcohol. Everyone likes it. But there is a cultural tradition in America that teaches against it. That tradition forms a moral baseline that enables Americans to say with a straight face that underage drinking is bad, while "legal" drinking is good. All drinking creates pernicious social consequences. Yet legislators--and popular moralists--only ban it among children. In my view, this makes little sense. If you identify a social problem, you should root it out wherever it appears, not just in a subset.
But I ask too much. American morality is a complicated thing; there's no sense applying logic to sort it out. Let's just try to separate it from law. No matter how much we hear about "legal" drinking in America, the whole debate is really just a moral battle. And moral battles are never logical.
Several days ago, I saw a curious poster alongside the usual commercial garbage on 22nd Street. Next to a print ad for Lady Gaga's new album and a placard about McDonald's meal deals stood this message: "The Legal Drinking Age is 21. Do Your Part This Christmas. Don't Give Alcohol to Teens." The poster showed a wine glass with a Ghostbusters-style red circle around it; a red diagonal line crossed out the glass. On the bottom appeared the following slogan in stern capital letters: "Serving Alcohol to Teens : It's Unsafe. It's Illegal. It's Irresponsible."
What made this "ad" so curious? Several things. First, it was not a commercial message. Most "ads" are crass commercial messages that aim to excite an urge to buy in the viewer. They communicate selective information intended to entice a person to spend money and enrich the speaker. In short, advertising is about making money. It is morally indifferent. In fact, it is morally destitute. Morality and commerce have little to do with one another. A dirty dollar is still a dollar. And people with more dollars are stronger than those with fewer dollars, dirty or not.
In traditional terms, then, this message against underage drinking was not an "ad" at all. It did not aim to excite an urge to buy in the passing viewer. No, it aimed to evoke a moral impulse; it beseeched people not to buy alcohol for people under 21. It asked people to refrain from commercial activity. If an advertising firm came up with a campaign that asked people to refrain from buying the product, it would go out of business faster than you can say: "Madison Avenue." In that sense, this message to stop underage drinking was not an "ad." It was an anti-ad.
But what good is an "ad" if it does not propose a commercial transaction? Can "ads" also promote morality? This one certainly tried. As long as an organization coughs up cash to buy posters or airtime, they can say basically whatever they want. It is their choice whether to say something that will generate no profit. Advertisers generally only advertise commercial stuff because it has the potential to create profits. And no one does anything in business that does not attempt to make money. Morality does not create profits. You can't buy it and it's not very exciting. Face it: It's easier to sell Dewar's than chastity.
In this light, we can conclude that some nonprofit organization paid for this message. It did not intend to make money with its speech. Rather, it aimed to foster public morality. Of course, the poster never uses the word "morality." In fact, everyone who supports underage drinking laws rarely speaks the word. Rather, they couch the issue in legal terms. The poster, for example, references the law twice: "The legal drinking age is 21;" "It's illegal to give alcohol to teens." It is easy to make a law; you just need a majority vote at the State house. But the underlying message here is moral, not legal. And it plays upon the popular confusion between law and morality.
People always mistake the law for morality. Morality existed among human beings before law. Morality refers to the average man's sense that something is disgusting or intuitively objectionable. It has more to do with popular social values than reason or abstract truth. Men created laws to embody their moral judgments, but law never could--and never will--supplant morality. In fact, the law is supposed to be morally neutral. It is supposed to operate according to pure reason and extrinsic evidence. Morality, by contrast, appeals to deep-seated intuitive prejudice against particular conduct within the dominant value system. When enough people in a society think something is disgusting, they call it "immoral." And that judgment passes down across generations. They don't need to verify it. They just need to feel it.
Still, people have more outward respect for the law than morality. It sounds more official. After all, the law has sovereign power behind it. It can attach bank accounts, imprison bodies and garnish wages. People fear those consequences. Morality, by contrast, is more basic than that. Morality informs almost everything a society does. Law simply represents the society's effort to assure a minimum baseline of behavior consistent with the dominant moral code.
Law enforces morality. The sovereign enforces the law with penalties on the body and property. But unlike morality, there are practical problems associated with enforcing the law. The sovereign cannot punish everyone for every illegal or immoral act that occurs. And there are some immoral acts that are not even illegal. The law must verify acts before it can punish them. That is not always easy.
Why, then, did the underage drinking poster harp on "illegality" in connection with serving alcohol to teens? After all, the overall message was a moral one. On a basic level, Americans have a troubled--and borderline schizophrenic--relationship with alcohol due to their cultural and religious heritage. The same cultural forces that culminated in Prohibition remain at work today in American society. Hostility toward alcohol is a moral judgment; it has to do with social values and disgust, not reason. Americans have always embodied their moral judgments about alcohol in law. The law gives official expression to their traditional moral queasiness on the subject. But to be abundantly clear, hostility toward alcohol--especially when coupled with children--is a uniquely American moral judgment.
Consider the interplay between law and morality in the poster. Even without understanding America's long history with regard to morally-nuanced alcohol regulations, the poster's own language reveals the connection. It says: " Serving Alcohol to Teens : It's Unsafe. It's Illegal. It's Irresponsible." It draws a linguistic connection between "illegality" and "irresponsibility." Strictly speaking, it is not "illegal" to be irresponsible. In American cultural parlance, however, "responsibility" is a sweeping moral judgment. It refers to "proper living" according to dominant social morals. That means acting and thinking in a certain way, especially when it comes to recognizing obligations and power relationships.
But "legality" is a technical inquiry. Unlike morality, the law must be specific in its prohibitions. Any aggrieved mother can complain that her child is "irresponsible" because he is not "living correctly." Yet that does not mean the child is acting "illegally." Legal violations must match specific language. They must be investigated and proved according to objective procedures. Yes, it might be irresponsible to violate the law. But not all "irresponsibility" is illegal. If it were, virtually everyone would be a criminal.
It is significant that the poster equated legality with responsibility. It forges a direct thematic connection between law and morality. In most cases, the average viewer has no idea that the two concepts are distinct. He simply assumes that all laws are moral, and that moral people are responsible. That assumption is false. Yet the law benefits from the false assumption because morality acts as a sort of "self-executing enforcement mechanism." After all, people stop themselves from acting in a particular fashion when they think it is "immoral." No law constrains them. Rather, innate cultural conditioning influences their decisions. If the law can harness that innate cultural conditioning, it can successfully thwart certain behavior before it happens. And from the law's perspective, whenever someone refrains from prohibited behavior, it has done its job. If morality helps enforcement, then the law will appeal to morality. It does not matter that the law has no power to shape individual morals.
At this point, however, a substantial problem arises: What is so immoral about serving alcohol to a 20-year-old? Or even a 14-year-old? This suggestion might arouse revulsion in the typical American listener. But that shows once again that underage drinking is essentially a moral issue. After all, Americans somehow feel queasy when they think that children are drinking alcohol. That reaction is a cultural. It has survived for generations.
And it is not a universal reaction. People in European Nations, for instance, do not flinch to serve alcohol to teenagers. There is no dominant public rhetoric that equates underage drinking with illegality, irresponsibility and "evil." Quite the contrary, life goes on in Germany, France, England and Holland quite well, even when 16-year-olds sip beer--even in public. Society does not collapse. The sky does not fall. And religious leaders do not spread hellfire for it.
In my mind, this illustrates the point that American concerns over underage drinking are essentially moral concerns. No matter how much public rhetoric couches the debate in legal terms, the fact remains that Americans just don't feel culturally comfortable with the idea that teenagers are drinking. It is a question of cultural heritage, not wise policy.
Of course, those who support widespread bans on underage drinking will never say that morality motivates them. In fact, they probably do not even realize that it does. Instead, they point to safety statistics and other supposedly "neutral" indicia to show a "practical" reason why teenagers should not drink. Because fewer teens die in alcohol-related accidents, they say, underage drinking bans are good laws.
I think this is a dishonest argument. If safety were really the main objection to alcohol, Prohibition should still be in effect. Alcohol causes untold damage to countless lives every year, not just among teenagers. It causes thousands of accidents. It ruins families. It leads to violence, disruption and turmoil. Why protect only children from those hazards? If a legislator identifies negative social consequences that flow from a particular behavior, he should ban that behavior in toto. Only a fool would argue that alcohol does not cause myriad social problems. Yet for some reason Americans tolerate those consequences among adults, but refuse to tolerate them among children.
At this juncture, it is hard to escape identifying some hypocrisy in the clamor over underage drinking. After all, the essential argument against underage drinking is to ensure safety. But if safety were the ultimate goal, then all alcohol should be banned, not just some. Yet despite Americans' moral qualms about underage drinking, they sure love to drink. So all their talk about safety goes out the window because they want to keep drinking. They can be "responsible" with their drinking, even though experience shows that alcohol continues to ruin lives on a daily basis. Yet they have the gall to label underage drinking "immoral." Immoral for some, but not for them? This is deeply problematic. And it renders all opposition to underage drinking disingenuous.
Let's be honest about alcohol. Everyone likes it. But there is a cultural tradition in America that teaches against it. That tradition forms a moral baseline that enables Americans to say with a straight face that underage drinking is bad, while "legal" drinking is good. All drinking creates pernicious social consequences. Yet legislators--and popular moralists--only ban it among children. In my view, this makes little sense. If you identify a social problem, you should root it out wherever it appears, not just in a subset.
But I ask too much. American morality is a complicated thing; there's no sense applying logic to sort it out. Let's just try to separate it from law. No matter how much we hear about "legal" drinking in America, the whole debate is really just a moral battle. And moral battles are never logical.
Thursday, December 10, 2009
ANIMALS CANNOT BE CRIMINALS
AN ESSAY
Several months ago, I wrote an essay outlining the relationship between moral choice and the criminal law. http://reasoncommercejustice.blogspot.com/2009/03/good-bad-or-just-sick-why-we-punish.html. I concluded that the criminal law implicates public morality in a way that other legal doctrines do not. Specifically, I pointed out that our society relishes the opportunity to pronounce both legal and moral judgment on "deviants" who make "bad choices." Finally, I noted that in some cases, it is impossible to channel moral outrage against certain trespassers--particularly the mentally ill--because they do not possess the capacity to rationally make "good" or "bad" choices.
Yet our society enjoys criminalizing things. It is an easy way to express condemnation for shocking outrages, even if it is not the most effective response. When we pursue someone as a "criminal," we collectively say that the he "broke from the moral norm." We justify his punishment by referencing his bad moral choice. Then we feel good about ourselves when he suffers for daring to violate the moral standard. Choice is the touchstone: Criminals know the behavior that society expects, yet they knowingly choose to violate it. In this sense, the criminal law acutely relates to popular morality.
Criminal sanctions make rational sense in two cases. First, there is the moral function. Under the "morality" theory for punishment (originally championed by Immanuel Kant), the criminal law prescribes exactly enough punishment to match the moral guilt in the actor's choice. The more shocking the choice, the worse the punishment. The morality theory focuses on individual choices; it envisions a direct confrontation between the law and the criminal. Punishment in this case does not aim to intimidate others; it is a discreet affair between the sovereign and the trespasser. True, society looks on and judges the moral deviant. But it serves no utilitarian purpose beyond venting moral outrage against the individual criminal. The "morality theory" has a significant role in the American justice system, but it is even more prevalent in civil law countries like Germany and France.
In the second case, the criminal law performs a strictly utilitarian function. Under the utilitarian theory, criminal law uses punishment against one man in order to frighten others from committing the same infraction. This is called "deterrence." Its focus is not moral; it is practical. Society does not like criminal choices because they disrupt the social order and cause damage to others. Society would simply like to see fewer criminal choices, regardless of whether the criminal acknowledges his moral failing. Deterrence is all about numbers: The criminal law performs a "practical" function if it reduces the number of robberies each year. Morality is not the issue; the criminal law just wants people to refrain from making choices that hurt others. In this sense, it is "useful" for everyone in society.
So how does the criminal law induce autonomous individuals to refrain from making certain choices? Simple: It threatens punishment to anyone who dares to make the choice. It assumes that people are rational actors. It assumes that they will engage in a cost-benefit analysis before making any choice. It also assumes that they do not like punishment, so they will not make choices they know will lead to it. When the criminal law aims to fulfill a deterrence function, it is not so much concerned with the individual criminal who suffers. Rather, it is much more concerned with all the potential criminals who watch the condemned man suffer, then say to themselves: "I do not want to meet the same fate." If the punishment inspires fear in those who otherwise might have committed the same crime, it serves its purpose.
Deterrence has always been an overt goal in the Anglo-American criminal law tradition. But it has fallen into disfavor in civil law systems. The German system specifically disavows any intention to deter future criminals by punishing present ones. Kant said that using one man as an instrument to frighten others demeaned human dignity and autonomy. That sentiment has found traction in Western Europe.
But no matter what punishment system a country adopts, the criminal law still assumes that people will act rationally. If a person cannot make rational choices, he cannot know whether his choice will violate an "intuitive moral standard." He also cannot make a cost-benefit analysis before deciding whether to commit an act that will injure another. And most of all, the criminal law only works on human beings.
This is not a facetious observation. Just this week, prosecutors in Connecticut actually deliberated whether they should bring charges against a chimpanzee that brutally mauled a woman last year. They also deliberated whether they should charge the chimp's owner.
What foolishness. The fact that prosecutors even entertained the proposition to charge an animal with a crime reveals a gross misunderstanding of the criminal law's basic functions. It would serve neither a moral nor a utilitarian purpose to punish an animal. After all, animals do not make rational choices; they know only instinct. They cannot grasp intuitive human moral teachings, nor can they feel fear when they see a fellow animal punished for making a "choice." Indeed, we might even wonder whether animals make "choices" at all in the way humans understand the word. Animals do not assimilate information as humans do. Nor can they learn to adapt their behavior to meet accepted "social norms." How can the law serve a purpose when the subject cannot even use language? Law must communicate before it can have any beneficial effect on society. Animals do not communicate with language. Thus, it is absurd to even consider using criminal penalties against them when they do something outrageous.
Still, Connecticut's debate about prosecuting a chimpanzee reveals a bothersome issue. Specifically, it reveals our society's reflexive--and ridiculous--propensity to use the criminal law to address any conduct we find abhorrent. In recent decades, States have greatly expanded their criminal codes. When there is a new social issue that arouses people's anger or disgust, there is an immediate push to criminalize it. Someone doesn't wear a seatbelt? Make it a crime. Someone texts while driving? Make it a crime. Someone doesn't inspect a restaurant every two weeks? Make it a crime. Someone forgets to feed their child lunch? Make it a crime. Someone did not clean their apartment? Make it a crime. Someone puts recyclables in the trash? Make it a crime.
In short, by making all objectionable conduct potentially criminal, States have diluted what it means to make "criminal choices." They have also shown that people just like taking revenge on things, even if it does not seem reasonable.
This explains why Connecticut prosecutors thought about prosecuting the chimpanzee. When something outrageous happens--like a chimpanzee chewing off a woman's face--people in our society rush to assign blame and take revenge on the culprit. This makes sense from a human perspective; human beings naturally thirst for revenge when injured. Oliver Wendell Holmes noted in The Common Law (1881) that both criminal law and compensation law flow from the natural human anger that arises when people get hurt: When a person accidentally slams his hand in a door, he kicks the door. Or when a branch falls on a man, he burns the tree. People want to take revenge against things that hurt them, even if they are inanimate, and even if it would serve no useful or moral purpose.
Criminal law is not the same thing as natural human revenge. It is a human invention with a human focus. It enforces human norms and aims to influence rational human choices. It makes no sense to apply it to anyone--or anything--that cannot make rational choices. If the criminal law cannot either: (1) Express moral outrage against a person who knew or should have known he made an intuitively "bad choice;" or (2) Realistically frighten potential criminals by punishing a convicted criminal, then it makes no sense to apply it. Animals cannot know they make "bad choices." They do not have the capacity to grasp complex verbal communication, let alone subtle moral principles. They also cannot be frightened from acting in ways that injure humans. This is why it is utterly pointless to prosecute an animal.
Now, that does not mean humans do not feel a natural desire to take revenge against an animal that hurts them. Just as people burn trees that fall on them, they can kill animals that pose a danger. But taking bald revenge on an animal is very different from prosecuting it, then punishing it consistent with law.
For better or worse, the criminal law has come to signify "revenge" in our society. True, the criminal law undoubtedly sates the natural human craving for revenge in many situations. But it would behoove us to remember that the two concepts are not entirely coextensive. Understanding the difference saves us from embarrassing spectacles, like seriously debating whether to hale a chimp into court to stand trial.
Wednesday, August 12, 2009
MORALITY FIRST : MALE HOMOSEXUALITY IS DISGUSTING AND MUST BE STOPPED AT ALL COSTS
By : Dr. G. Strong Wacker, M.D., M.P.H.; Commissioner, The National Board for Family Health (1998-present); Physician (Urological Reconstruction & Urethral Science); Member, The Morality First League for Equal Protection Under Law (1993-present); Theater-Goer; Amateur Florist & Gardener; Senior Coordinator, Zac Efron Fan Club (San Francisco Branch)(2006-present).
In 2004, President George W. Bush made a concerted effort to ban gay marriage. Although Congress did not amend the Constitution to forever prohibit men from marrying men, he made his point. In fact, Americans cared so much about the marriage issue that they reelected him President that very year. Put simply, Americans know that male homosexuality is morally wrong. Bush won reelection because he publicly declared that no male would ever make vows to another male.
But stopping gay marriage did not end the debate. George W. Bush may have saved the country from gay marriage, but he did not save the country from male homosexuality. We believe that we must prohibit all male homosexuality, not just homosexual marriage. It is not enough to stop two men from combining their finances to cheat the Internal Revenue Service. Nor is it enough to stop two men from exchanging rings and swearing fidelity to each other. No, we must go further. As a society, we must say what we all feel: “Male homosexuality is disgusting and must be stopped at all costs, no matter who dies.”
As a society, we have a right to stop disgusting behavior. Our deepest moral impulses empower us to outlaw disgusting things, including public defecation, slovenliness and grime. When behavior arouses our disgust, we have a right to suppress it. When behavior smells bad, we must punish it. After all, it is disgusting. It makes us pinch our noses, recoil and cry out: “Yuck!” No one deserves to live around foul odors and disgusting behaviors. Indeed, bad smells and immorality form the basis for all our criminal law. Male homosexuality, like public defecation, slovenliness, fraud and theft, is both disgusting and immoral. We just don’t like it. We must remove its stink from our midst, just as our earliest ancestors removed decaying carcasses from their settlements.
We don’t like male homosexuality for many reasons. First, the idea of two men groping and fondling each other makes us uncomfortable. It is just not right. It looks disgusting, too. If it appeals to you, there is something very, very badly wrong with you. Second, male homosexuality presents a public health hazard. Homosexuals are disease-ridden, promiscuous, dissolute, lustful infiltrators who spread pestilence and death through our communities. Third, male homosexuals defraud our society by wasting their reproductive capacity on furtive pleasures. Rather than commit themselves to fatherhood and childrearing, they abandon themselves to aesthetic preening, perverted flirtation and “fun.” This costs our community live births and future citizens. Fourth, male homosexuality harms children. Homosexuals ritually rape children every day; if we care about our children, we must act to stop the homosexual menace. Fifth, homosexuals have untold political influence. According to United States Supreme Court Justice Antonin Scalia: “[Those] who engage in homosexual conduct tend to…have high disposable income [and] they possess political power much greater than their numbers, both locally and statewide.” Romer v. Evans, 517 U.S. 620, 645-646 (Scalia, J., dissenting).
Put simply, homosexuals are devious, dangerous, disgusting, harmful to children, insolent, irresponsible, wasteful and seditious. We must act now, before it is too late. Our children and our sensibilities demand swift action.
Tradition justifies our effort to stamp out homosexuality. Justice Scalia is a brilliant jurist. We take heart in his legal pronouncements concerning the homosexual menace. He has written at length about government’s traditional right not only to criminalize homosexuality, but also about society’s basic right to hate homosexuals as part of our “moral heritage:” “[] I had thought that one could consider certain conduct reprehensible—murder for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct.” Romer v. Evans, 517 U.S. 620, 644 (Scalia, J., dissenting). Justice Scalia correctly equates homosexuality with murder, polygamy and cruelty. He knows what he is talking about; he went to Harvard Law School and he has served on the United States Supreme Court since 1986. According to Justice Scalia, homosexuality is just as morally wrong as killing your neighbor or torturing a dog. As a society, we have a right to condemn such abominable outrages. We have always had a right to condemn murder, just as we have always had a right to condemn male homosexuality.
In many ways, male homosexuality is more despicable than murder. After all, some murders offend us less than others. For example, we do not condemn a man who kills his wife’s lover in a jealous rage as much as we condemn a man who carefully plots his wife’s death with equanimous efficiency. Murder does not always arouse our deepest disgust; sometimes we even look with sympathy on the killer. Male homosexuality, on the other hand, is irretrievably disgusting. Nothing mitigates anal sex between two men; it is categorically disgusting. It is so revolting that no reasonable person could ever forgive it or look upon it with sympathy. The mere idea of two naked men kissing is simply nauseating. Murder does not always arouse such deep, rancid disgust. In that light, male homosexuality deserves our strongest condemnation.
Female homosexuality, on the other hand, presents a different question. Lesbians are beautiful to behold. I feel no disgust whatsoever when I think about two naked women caressing one another. In fact, I would very much like to join in any amorous adventures between two beautiful women. Unlike male homosexuals, lesbians pose no public health hazard. They do not spread pestilence and death. They do not rape children, nor do they have unlimited resources with which to overthrow the government. They do not waste their reproductive potential; lesbians can always get pregnant at some later date.
Put simply, lesbians are neither immoral nor disgusting. On the contrary, they are beautiful, especially when they allow men like me to join them in erotic contact. I speak for every American when I say that lesbian sex is neither dangerous nor unhealthy, provided that the lesbians in question are good-looking and would allow me to join in. I would not mind looking at two hot lesbians having sex; indeed, thinking about it arouses me to some extent. There is nothing wrong with that. It is not immoral.
I am certain that Justice Scalia would agree with me about lesbians. There is nothing in our moral tradition that recoils from lesbian sex. Our moral tradition recoils from ugly penises and anuses, not appealing breasts and vaginas. Males smell. Females do not. I would not mind looking at lesbian sex. For that reason, lesbianism presents no danger to society or our children. Lesbianism is not immoral.
Only male homosexuality is immoral. It is both dangerous and unhealthy. I would not want to look at it. We have a traditional right to hate it. For these reasons, we must stand fast against male homosexuals. We must heed Justice Scalia’s advice. We must defend against their disproportionate political influence. If we relax our stance toward male homosexuals for even a moment, they will take over Congress and legalize child rape. If we relax our stance toward male homosexuals for just one moment, they could infect our entire society with venereal diseases, canker sores, rickets, scabies, herpes, cooties and parasites. If we care about morality, health and reproduction, we must sound the alarm on male homosexuality. Stopping gay marriage is not enough. That is why we, the Morality First League for Equal Protection Under Law, are committed to stopping all homosexual immorality, no matter who dies. Tradition supports us. Justice Scalia supports us. Male homosexuals are no better than murderers, polygamists and animal torturers. Plus they smell and I would not want to watch them have sex.
We cannot be tolerant when so much is at stake. It may be 2009, but male homosexuals are just as immoral and dangerous today as they were in 1500. In 1500, governments burned male homosexuals because they honestly recognized how dangerous they were. We must not allow “progressivism” to blind us to those dangers. We must merely remember that male homosexuality is disgusting. No matter how fashionable it may be to “understand” male homosexuals, we cannot forget that they engage in smelly, abominable conduct that we have a right to hate. And by “understanding” male homosexuals we play directly into their hands. As Justice Scalia pointed out, they are politically powerful. As soon as we ease the pressure on them, they will overthrow the government and institute Federal policies subsidizing child rape and debauched all-male nude beach parties. Put simply, we must stand firm against this menace. We cannot afford to be tolerant with immoral deviants, especially when—as Justice Scalia told us—they have high disposable income and disproportionate political influence.
In sum, we have a political, moral and medical duty to stamp out male homosexuality because it is disgusting. Thinking about it makes me uncomfortable and nauseous. I would probably vomit if I stumbled across two men having sex. We must implement laws that correspond to our basic moral feelings. We must outlaw male homosexuality because it arouses my disgust, just as public defecation does. Like public defecation, male homosexuality smells and presents noxious public health hazards. If we care about health, morality and our children, we must take every measure necessary to suppress male homosexuality. Tradition demands no less. Our children expect no less. We must act now before homosexual conspirators topple the government and transform the United States into a vast disco Empire led by shirtless go-go dancers.
Yet we must spare lesbians. There is nothing immoral about them. I really like to look at them. I even think about them quite a lot in my spare time.
Thursday, July 9, 2009
"SEX" IS NOT A BAD WORD ; CENSORSHIP IS
OESTERHOUDT STRIKES
Jeremih’s single “Birthday Sex” should have been just another R&B song about a young man’s assumed romantic prowess. When Def Jam released the single in April, audiences responded with enthusiasm: It went to #1 on the R&B charts and #4 on the pop charts. It fit the “urban love anthem” mold: A man does not buy gifts for his girlfriend on her birthday, so he gives her “birthday sex” as a replacement. And true to the smug, sexually conceited male caricature that so often appears in the R&B canon, Jeremih assures his listener that his sex is better than any material gift.
This is not an uplifting message. In fact, it is laughable. But I am not writing today to mock “Birthday Sex.” I am writing today because mainstream radio stations bleep out the word “sex” when they play the song.
Since when did “sex” become a word “bad” enough to warrant censorship? We all know that the Federal government has power to prevent us from hearing a few “really bad” words during mainstream broadcasts. See, e.g, F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). But those “really bad words” are familiar vulgarities, colorful English phrases that go straight to the unrefined truth about sex and the body. We know we are not allowed to hear the words “fuck,” “shit,” “asshole” and “cock” on everyday broadcasts because those words cut to the linguistic quick about sex, excrement and “private parts.” Popular morality teaches us to revile these things, so law provides society a way to protect our ears from them. For better or worse, these traditionally “bad words” have real rhetorical punch. Their strength lies in their unabashed directness. Their strength lies in their pure Germanic derivation. No doctor or scientist mulled a Latin equivalent for these words. They are brutally honest, English core words. And to some extent, that is one reason why popular morality reviles them: Our society has an uneasy relationship with sex and the body, so it recoils from overly honest expressions about them.
But the traditional reasons for banning “bad words” do not apply to the word “sex.” “Sex,” unlike “fuck” or “shit,” is a Latin-based medical coinage, not a vulgarity. When people honestly talk about sexual conduct, they generally do not use medical terms. They use tried-and-true Germanic vulgarities. They do not say: “May we now engage in sexual activity?” In much the same way, they do not use medical coinages when referring to basic bodily functions. People do not say: “I must defecate now.” Latin does not tell the same story as German. Every English speaker knows that “shit” is a more honest word than “defecate.” Yet it ruffles feathers precisely because it so honestly describes “a coarse bodily function.” “Defecate” distances the listener from the body. That is why it is permissible to broadcast “defecate” during a daytime radio show, but not “shit.” The same reasoning should apply to “sex;” it is a medical coinage that distances the listener from the honest truth about sexual contact between human beings. In this case, however, the usual reasoning does not apply.
Why the inconsistency here? You would think that using the word “sex” instead of its coarse Germanic cousins would satisfy the decency police. After all, it purifies the language from uncomfortable honesty. “Sex” inevitably will offend fewer prudes than “fuck,” even though both words refer to precisely the same activity. But in this case, the censors bleeped out “sex,” too. In a way, I pity Jeremih. He tried his best to write a sensual song without using “traditional vulgarities” because he knew those words would be censored. Yet despite his efforts to use satisfactory words, the censors muffled him anyway.
I can only explain this new hostility toward the word “sex” by positing that popular morality does not like sexual conduct in the abstract. Although doctors created the word “sex” to make it easier to discuss sexual conduct without using uncomfortable Germanic vulgarities, apparently the subterfuge isn’t working anymore. The subject matter is apparently so uncomfortable that even Latin circumlocution can no longer suppress the shame. What can explain this if not a profound discomfort with anything concerning sexual contact between human beings? The word “sex” was supposed to disguise the raw, bodily truth about sexual conduct. It is deliberately uncolorful, undescriptive and unmemorable. But now, it is just as bad as the subject matter it was intended to conceal.
This is not just censorship. It is sloppy, incompetent censorship. A good censor has consistent reasons for suppressing certain words. For thirty years, censors at the F.C.C. consistently applied the “traditional vulgarity” test to determine whether a word “could be heard” on the airwaves. That test protected young ears from “overly honest descriptions” about sex and bodily function while preserving some “decorum” during daytime broadcasts. The test was exquisitely formal and categorical: Either the word was on the “dirty words” list or it was not. But now, the F.C.C. has scrapped the categorical approach. “Sex” was never on a “dirty words” list; it is a euphemism calculated to avoid using a word on that list. Yet now it is just as bad as the words it was intended to circumvent.
This is censorship by moral fiat, not reasoned analysis. I argue that such an approach disparages government’s obligation under the First Amendment to “make no law…abridging the freedom of speech.” The Supreme Court has steadily eroded our right to speak as we please under the Constitution. But it has nonetheless always reminded government that it cannot drive certain words from discourse without compelling justifications based in reason. See, e.g, Cohen v. California, 403 U.S. 15 (1971). The Court said that driving “traditionally vulgar words” from discourse could be justified because it was important to “protect children” and “unwilling listeners” from coarse language. F.C.C. v. Pacifica, 438 U.S. 726, 748-750 (1978). But it never said anything about words that are not “traditionally vulgar,” “shocking” or “coarse.” Viewed linguistically, the word “sex” is neither vulgar nor coarse. It is not “shocking,” either. In fact, it is supposed to take the “shock” out of traditionally “vulgar” expressions. Its capacity to give offense lies solely in the subject matter to which it refers, not the honest tone in which it describes the subject matter. By any test ever used to judge “decency” under the First Amendment, “sex” clearly passes. It is therefore shocking that the F.C.C. now decides to rewrite the law to censor a word that violates no legal standard.
If we allow the F.C.C. to drive the word “sex” from discourse, how are we supposed to “properly” talk about sex? What about shows like “Sex in the City” or songs like “Sexual Healing?” Those titles contain the word “sex.” What about a broadcast discussing “sexually transmitted diseases” or “sex therapy?” What about the countless advertisements for products addressing “sexual dysfunction” and “normal sex lives?”
In short, the word “sex” has evolved into an “acceptably neutral” means to express human sexuality without offending the decency police. We rely on it to discuss a profoundly important aspect of our lives. If it suddenly becomes as “bad” as the other “dirty words,” how are we supposed to discuss it? This may sound extreme, but we are on that path. The F.C.C. censored the word “sex” in Jeremih’s song. For all concerns and purposes, government decided that we should not hear the word because it was somehow “bad” or “offensive.” Yet “sex” is not a “bad word.” It was invented in order not to give offense. It is ironic that authorities now seek to suppress a euphemism.
I strongly resent any government attempt to control language. Our Constitution grants American citizens a broad right to speak freely. We should only tolerate restrictions on our language for the most compelling reasons. Moral awkwardness about sex does not even remotely rise to that level. Yet if we do not express our disapproval about censorship when it happens, we tacitly certify government’s power to regulate our language. That is why it is important to oppose censorship whenever it appears. “Birthday Sex” may be stupid, juvenile and absurd. But if we don’t say something to oppose government’s attempt to outlaw a perfectly legitimate word in our language, we empower government to take even more steps to muzzle us. In this case, government has applied its own moral queasiness to suppress a neutral word we all have a right to use. Moral queasiness is no justification for ignoring the First Amendment, no matter how many supersensitive mothers call to complain.
America has deep and fundamental social problems with sex. But those problems should not be allowed to impact our rights under the First Amendment. Censorship should worry us all, no matter where it appears. Our language existed before the Constitution and before the government. It is ours. As long as we do not use it to injure others or foment violence, government has no right to trespass against it. When government targets our language, we all lose expressive possibilities. Without expressive possibilities, we do not truly enjoy our rights as individuals. That is why I detest ungrounded censorship. It is not just an attack on the speaker’s expressive powers. It is an attack on us all.
Jeremih’s single “Birthday Sex” should have been just another R&B song about a young man’s assumed romantic prowess. When Def Jam released the single in April, audiences responded with enthusiasm: It went to #1 on the R&B charts and #4 on the pop charts. It fit the “urban love anthem” mold: A man does not buy gifts for his girlfriend on her birthday, so he gives her “birthday sex” as a replacement. And true to the smug, sexually conceited male caricature that so often appears in the R&B canon, Jeremih assures his listener that his sex is better than any material gift.
This is not an uplifting message. In fact, it is laughable. But I am not writing today to mock “Birthday Sex.” I am writing today because mainstream radio stations bleep out the word “sex” when they play the song.
Since when did “sex” become a word “bad” enough to warrant censorship? We all know that the Federal government has power to prevent us from hearing a few “really bad” words during mainstream broadcasts. See, e.g, F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). But those “really bad words” are familiar vulgarities, colorful English phrases that go straight to the unrefined truth about sex and the body. We know we are not allowed to hear the words “fuck,” “shit,” “asshole” and “cock” on everyday broadcasts because those words cut to the linguistic quick about sex, excrement and “private parts.” Popular morality teaches us to revile these things, so law provides society a way to protect our ears from them. For better or worse, these traditionally “bad words” have real rhetorical punch. Their strength lies in their unabashed directness. Their strength lies in their pure Germanic derivation. No doctor or scientist mulled a Latin equivalent for these words. They are brutally honest, English core words. And to some extent, that is one reason why popular morality reviles them: Our society has an uneasy relationship with sex and the body, so it recoils from overly honest expressions about them.
But the traditional reasons for banning “bad words” do not apply to the word “sex.” “Sex,” unlike “fuck” or “shit,” is a Latin-based medical coinage, not a vulgarity. When people honestly talk about sexual conduct, they generally do not use medical terms. They use tried-and-true Germanic vulgarities. They do not say: “May we now engage in sexual activity?” In much the same way, they do not use medical coinages when referring to basic bodily functions. People do not say: “I must defecate now.” Latin does not tell the same story as German. Every English speaker knows that “shit” is a more honest word than “defecate.” Yet it ruffles feathers precisely because it so honestly describes “a coarse bodily function.” “Defecate” distances the listener from the body. That is why it is permissible to broadcast “defecate” during a daytime radio show, but not “shit.” The same reasoning should apply to “sex;” it is a medical coinage that distances the listener from the honest truth about sexual contact between human beings. In this case, however, the usual reasoning does not apply.
Why the inconsistency here? You would think that using the word “sex” instead of its coarse Germanic cousins would satisfy the decency police. After all, it purifies the language from uncomfortable honesty. “Sex” inevitably will offend fewer prudes than “fuck,” even though both words refer to precisely the same activity. But in this case, the censors bleeped out “sex,” too. In a way, I pity Jeremih. He tried his best to write a sensual song without using “traditional vulgarities” because he knew those words would be censored. Yet despite his efforts to use satisfactory words, the censors muffled him anyway.
I can only explain this new hostility toward the word “sex” by positing that popular morality does not like sexual conduct in the abstract. Although doctors created the word “sex” to make it easier to discuss sexual conduct without using uncomfortable Germanic vulgarities, apparently the subterfuge isn’t working anymore. The subject matter is apparently so uncomfortable that even Latin circumlocution can no longer suppress the shame. What can explain this if not a profound discomfort with anything concerning sexual contact between human beings? The word “sex” was supposed to disguise the raw, bodily truth about sexual conduct. It is deliberately uncolorful, undescriptive and unmemorable. But now, it is just as bad as the subject matter it was intended to conceal.
This is not just censorship. It is sloppy, incompetent censorship. A good censor has consistent reasons for suppressing certain words. For thirty years, censors at the F.C.C. consistently applied the “traditional vulgarity” test to determine whether a word “could be heard” on the airwaves. That test protected young ears from “overly honest descriptions” about sex and bodily function while preserving some “decorum” during daytime broadcasts. The test was exquisitely formal and categorical: Either the word was on the “dirty words” list or it was not. But now, the F.C.C. has scrapped the categorical approach. “Sex” was never on a “dirty words” list; it is a euphemism calculated to avoid using a word on that list. Yet now it is just as bad as the words it was intended to circumvent.
This is censorship by moral fiat, not reasoned analysis. I argue that such an approach disparages government’s obligation under the First Amendment to “make no law…abridging the freedom of speech.” The Supreme Court has steadily eroded our right to speak as we please under the Constitution. But it has nonetheless always reminded government that it cannot drive certain words from discourse without compelling justifications based in reason. See, e.g, Cohen v. California, 403 U.S. 15 (1971). The Court said that driving “traditionally vulgar words” from discourse could be justified because it was important to “protect children” and “unwilling listeners” from coarse language. F.C.C. v. Pacifica, 438 U.S. 726, 748-750 (1978). But it never said anything about words that are not “traditionally vulgar,” “shocking” or “coarse.” Viewed linguistically, the word “sex” is neither vulgar nor coarse. It is not “shocking,” either. In fact, it is supposed to take the “shock” out of traditionally “vulgar” expressions. Its capacity to give offense lies solely in the subject matter to which it refers, not the honest tone in which it describes the subject matter. By any test ever used to judge “decency” under the First Amendment, “sex” clearly passes. It is therefore shocking that the F.C.C. now decides to rewrite the law to censor a word that violates no legal standard.
If we allow the F.C.C. to drive the word “sex” from discourse, how are we supposed to “properly” talk about sex? What about shows like “Sex in the City” or songs like “Sexual Healing?” Those titles contain the word “sex.” What about a broadcast discussing “sexually transmitted diseases” or “sex therapy?” What about the countless advertisements for products addressing “sexual dysfunction” and “normal sex lives?”
In short, the word “sex” has evolved into an “acceptably neutral” means to express human sexuality without offending the decency police. We rely on it to discuss a profoundly important aspect of our lives. If it suddenly becomes as “bad” as the other “dirty words,” how are we supposed to discuss it? This may sound extreme, but we are on that path. The F.C.C. censored the word “sex” in Jeremih’s song. For all concerns and purposes, government decided that we should not hear the word because it was somehow “bad” or “offensive.” Yet “sex” is not a “bad word.” It was invented in order not to give offense. It is ironic that authorities now seek to suppress a euphemism.
I strongly resent any government attempt to control language. Our Constitution grants American citizens a broad right to speak freely. We should only tolerate restrictions on our language for the most compelling reasons. Moral awkwardness about sex does not even remotely rise to that level. Yet if we do not express our disapproval about censorship when it happens, we tacitly certify government’s power to regulate our language. That is why it is important to oppose censorship whenever it appears. “Birthday Sex” may be stupid, juvenile and absurd. But if we don’t say something to oppose government’s attempt to outlaw a perfectly legitimate word in our language, we empower government to take even more steps to muzzle us. In this case, government has applied its own moral queasiness to suppress a neutral word we all have a right to use. Moral queasiness is no justification for ignoring the First Amendment, no matter how many supersensitive mothers call to complain.
America has deep and fundamental social problems with sex. But those problems should not be allowed to impact our rights under the First Amendment. Censorship should worry us all, no matter where it appears. Our language existed before the Constitution and before the government. It is ours. As long as we do not use it to injure others or foment violence, government has no right to trespass against it. When government targets our language, we all lose expressive possibilities. Without expressive possibilities, we do not truly enjoy our rights as individuals. That is why I detest ungrounded censorship. It is not just an attack on the speaker’s expressive powers. It is an attack on us all.
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