Category: Law

Posts about law-making, the courts, and legal concepts in general

Why keep trying?

The other day, I was looking back over the photos I took at the Fill The Hill climate change event in Ottawa, back in October of 2009. At the time, the event made me optimistic. Here were all these young people concerned about climate change and ready to take personal action in response to it.

When I look at the photos now, the Hill seems a bit thinly populated. Contrast how many people turned out to express their concern about climate change with how many people get excited about a meaningless hockey game or concert and it seems like humanity has cause to worry.

The most important reason to deal with climate change is the ethical obligation we owe to future generations – the obligation to leave them a planet that can support their welfare. When it comes to how people decide on their priorities, however, it seems like such ethical obligations are very low on the list, way below personal financial welfare or convenience.

When I think about how the Amazon rainforest may be doomed because of human greenhouse gas pollution, along with the Great Barrier Reef and countless species, I feel overwhelmed with revulsion about how casually destructive our species is, and how little regard we show for the world which we inhabit and ultimately depend upon completely. We do not have the technical means to build a self-sustaining spacecraft and so the continued life of every human being on the planet depends on the continued operation of all the physical and biological processes that make the Earth habitable. Now – largely because we are fond of cheap energy – we are willfully assaulting those processes as though they are indestructible.

In the face of that, I wonder whether any personal efforts of mine are meaningful. If humanity as a whole is determined to commit suicide, why should I spend my life trying to stop it? The forces pressing for a sane and sustainable strategy seem to be far weaker than the forces that promise instant gratification today, with little consideration for whatever consequences follow.

Normally, this is where I would try to write an uplifting closing about how doing the right thing is appropriate, even when the odds are hopeless and when other people will actually resent you for making the effort. The noble course combines self-sacrifice (reducing your personal impact) with determined political action to try to produce a better outcome. While I still think that is true, and know my conviction will eventually return, it is feeling thoroughly sapped at the moment, partly by the way voters everywhere continue to make their political choices largely on the basis of their own short-term economic self-interest.

Humanity is very clever in a micro sense – when it comes to solving small problems in ways that benefit the solvers quickly and materially. When it comes to macro issues, it seems to be dumb luck and the sheer durability of nature that explain why we haven’t wiped ourselves out already. That isn’t much comfort though. There are limits to how much abuse nature can tolerate, and we have been beating it pretty harshly with a wrench lately (with still-worse abuse promised for the future). Perhaps humanity has no future, and perhaps the thing to do as individuals is choose whatever life seems most tolerable with that possibility acknowledged.

What Google knows

I wrote before about how Google’s “Don’t be evil” slogan is really the minimum requirement for such a powerful organization.

Jacob Mchangama, a Danish human rights lawyer, has put this in a nice way: “The dream of all dictators is to know as much about you as Google does”.

Incidentally, that is all the more reason for companies like Google to refuse to comply with illegal search requests from governments.

Ratko Mladic at the International Criminal Court

It is encouraging whenever the ICC or ad hoc international criminal tribunals manage to get their hands on someone accused of war crimes or crimes against humanity. Such prosecutions have the promise of producing a credible record of what took place, potentially providing some comfort to surviving victims, and perhaps somewhat improving the conduct of other political and military leaders elsewhere in the world.

Restricting purchase locations and pricing options for drugs

When it comes to recreational drugs, the objective of policy should be to prevent suffering while respecting the sovereignty individuals possess over their own bodies and minds. Our current approaches do not do that. Rather, they seem designed to either raise money or punish people. Neither of those objectives really serves the objective of reducing harm.

If you really want to restrict problematic usage of a drug, here are a couple of ideas for things you could do:

  • Restrict where it can be used to exclude desirable places like restaurants. For really dangerous drugs, restrict their use to medically supervised settings like InSite, Vancouver’s safe injection site for heroin.
  • Make selling them unprofitable. Do this by making the drug legal to sell, but illegal to profit from. You need to sell it for exactly the price you bought it for, and there are government stores like the LCBO that sell it for a low set price. This would eliminate any profit from producing or importing drugs, as well as eliminate criminal distribution networks for them with money flowing up and inward while drugs flow out and downward.

Imagine if convenience stores could only sell tobacco at cost. There would be no incentive to carry it, except perhaps the hope that customers who come in for tobacco will buy something with a mark-up on it as well. Requiring restaurants to sell alcohol at cost would hugely change the incentives they face. Right now, restaurants make so many profits from alcohol that the owners and servers both have a strong financial incentive to encourage people to drink. If they had to sell alcoholic beverages at cost, fewer restaurants would choose to be licensed and they would push alcohol on customers less. Given that alcohol is one of the most harmful drugs, that would have significant societal benefits.

Of course, there would be enormous resistance to any such policy. Restaurants and convenience stores want to hang onto their alcohol and tobacco profits, just as various organized crime groups want to hang on to profits from marijuana, cocaine, ecstasy, heroin, etc. Still, society may well be better off in a world where drug policy seeks to encourage responsible use (which may mean no use at all) while simultaneously working to reduce the harm caused within society by drugs.

Preventing accidental nuclear war

One of my biggest fears is that a nuclear war could start by accident, or as the result of a miscalculation. Some national leader could push a threat too far, an exercise could be misinterpreted, things during a conventional war could get out of control, and cities could suddenly get incinerated.

It seems quite likely that Canada’s major cities are the targets of ex-Soviet missiles spread around Russian subs and silos. We may be the targets of Chinese bombs, as well.

Two important policy objectives seem to be (a) keeping additional countries from developing nuclear weapons (b) reducing the stockpile of weapons possessed by existing nuclear weapon states and (c) building systems that reduce the chances of accidents, including permissive action links to prevent unauthorized use of bombs and delays in hair-trigger systems.

What bears rights?

Arguably, the fundamental right of any entity that has rights is the right to have its interests taken into consideration. That is the rational basis for the Harm Principle (described recently). Entities with interests that we consider morally irrelevant do not have any other rights. For instance, we don’t feel the need to take the interests of a hammer or a clump of dirt seriously when making moral choices. At the same time, it is the right to consideration borne by some entities that forms the foundation upon which claims to any other rights (rights of free speech, to possess property, etc) are based. In order to treat an entity according to a higher-level moral principle such as fairness, it is necessary first to recognize that they bear the right to have their interests considered at all.

Humans as rights-bearers

Generally speaking, humanity grants the right to consideration to all humans. Exactly what that consideration requires can be hotly contested. For instance, someone who is unable to communicate but suffering terribly from a terminal illness might be granted consideration in radically different ways – some people would advocate doing everything possible to keep them alive, despite their suffering. Others might say that the way their interests can be best served is to let them die. Either way, the interests of the person themselves are part of the discussion.

It is also possible that there are objects that are human beings in a certain technical sense, but which do not deserve to have their interests taken into consideration. For instance, this category could include embryos at an early stage of development (or even perhaps at any stage), living bodies that have had their brains completely destroyed, or even frozen corpses at some future time when their re-animation is technically possible.

Non-humans as rights-bearers

We do not apply such a right of consideration to all living things. Rather, we treat many of them simply as means for serving the ends of entities that we do consider to be bearers of rights. In some cases, that is unobjectionable. Nobody can reasonably object to a person shaping a piece of stone into an axe head, without giving any consideration to the piece of stone. Similarly, we have no reason to think that people are unethical when they fail to take the interests of carrots or lettuce into consideration when deciding how to treat them.

When it comes to animals with rich mental lives, however, I think it is quite possible that human beings have inappropriately ignored the right they have to consideration. In slaughtering whales or putting gorillas into cruel circuses, we are behaving extremely callously toward animals that quite possibly have mental lives that possess a similar richness to our own. Arguably, we are also failing to recognize a legitimate right to consideration on the part of animals like pigs, when we pack them together into astonishingly cruel factory farms.

Being a rights-bearer just starts the moral discussion

To be a bearer of rights is to have a claim to consideration recognized by the entities around you that undertake moral reasoning. As such, the question of which entities rights are accorded to says more about the level of ethical conduct of the reasoners than of the subjects. We can choose to ignore what we know about the common characteristics of physical and mental life among animals, and thus treat pigs and gorillas and whales like we treat carrots or stones. In so doing, however, we might be revealing ourselves to be seriously lacking in moral character.

The science fiction author Orson Scott Card describes a moral hierarchy that distinguishes between ‘ramen’ with whom communication is possible and ‘varelse’ with whom it is impossible. While it can certainly be questioned whether communication potential is really the most important factor distinguishing between the ethical status of different beings, he does usefully recognize how the level of consideration accorded to a being may reflect the level of ethical sophistication of the being making the choice, rather than the subject of that choice:

The difference between ramen and varelse is not in the creature judged, but in the creature judging. When we declare an alien species to be ramen, it does not mean that they have passed a threshold of moral maturity. It means that we have.

That said, it does not follow that the most ethical course is to grant moral standing to everything in the universe, from dust mites to clouds of interstellar gas. For one thing, there are very often conflicts between the legitimate interests of rights-bearers. If we inappropriately accord a right to consideration to an entity that really doesn’t deserve it, we may force legitimate rights-bearers to needlessly sacrifice their own interests, in order to protect the meaningless or non-existent interests of that entity. That said, we should be cautious in saying that an entity has no rights whatsoever. Acknowledging that an entity is owed a duty of consideration is not the same thing as saying that it deserves any particular form of treatment, or that its interests should always be favoured.

Just as the ethical conclusions flowing from recognizing a human as rights-bearing can be hotly contested, so too are those for animals. It is possible that we can take the interests of animals seriously and still do things like kill them, experiment on them, eat their corpses, and even make them fight one another for our amusement. We take the interests of human beings seriously, but it is nonetheless potentially defensible in some circumstances to do all of these things: kill them, experiment on them, eat their corpses (say, when they have died naturally and as an alternative to death by starvation), and enjoy watching them fight. Whether the subject in question is human or not, recognition that they bear the right to some sort of consideration does not automatically mean that they must be treated in a particular way – it just starts the conversation about what the ethical way to behave toward them is. It establishes them as part of the moral universe, such as we understand it.

Mega-libertarianism

For me, John Stewart Mill’s Harm Principle is a key element of libertarian philosophy. It holds that a person should be free to do as they like, until they start causing harm to others. If you want to have an avante garde theatre on your land, that is your right and I cannot object unless the noise is keeping me aware at 3:00am or you start dumping toxic paint into the river from which I drink.

At an election party the other night, however, I spoke with someone who has a more expansive libertarian philosophy than I had previously encountered – one that isn’t especially bothered by harm. They thought the important thing was for individuals to be as unrestricted as possible by government, even if their behaviour is causing harm to others. If you really value liberty for its own sake, perhaps it makes sense to adopt a Wild West ethical philosophy, in which individuals are behaving rightly whenever they try to get what they want. That said, I think this philosophy proves lacking very quickly as soon as some questions are asked.

Basically, the underlying ethic is that the strong should feel free to impose themselves on the weak. When you discard the Harm Principle, you leave people to fend for themselves. If my neighbour has guns and goons and I do not, I have no way to personally prevent him from dumping plutonium into my river, stealing my property, or having me beaten up for expressing my political views. In order to live in a decent society, I think we need to constrain the rights of the powerful. Everyone must be subject to the rule of law, and the law must protect important rights such as the freedom of speech.

A mega-libertarian society which discards the Harm Principle seems to me much like the Hobbesian state of nature. It wouldn’t necessary be quite as chaotic and violent as Hobbes believed, but it would certainly be terribly unjust. Without the Harm Principle, there is no moral basis to condemn rape, robbery, or murder. Under mega-libertarianism, a serial killer is just expressing themselves in their preferred manner, and the government really ought to get off their back.

I can appreciate the libertarian impulse to be skeptical about government and other systems of societal organization. At the same time, we must recognize that the whims of the over-mighty are also a major constraint upon liberty. It is much better to live in a democratic society with the rule of law than to live in a feudal society where military strength determines who is in charge and what the rules will be. In order for a society to be truly free, those who live within it need to adopt reasonable limits on their own behaviour.

Giving last names to children

When sperm and eggs – collectively called gametes – are formed, a process called meiosis takes place. This is the process where a human’s complete set of 23 pairs of chromosomes gets reduced into a single set of 23. That way, two gametes can combine to form a complete genome, comprised half from the father’s genetic material and half from the mother’s.

Perhaps this process can serve as a model for a more rational way to deal with family names. It is clearly antiquated to stick to the approach of having a woman’s family name obliterated at marriage. Women aren’t commodities traded between clan-like, male-dominated families. As such, I see no rational basis for them taking their husband’s name.

There is an exchange in an episode of The Simpsons that touches on all of this:

Marge: The police have such a strong case against Homer! Mr. Burns said he did it, they found his DNA on Mr. Burns’ suit.

Lisa: They have Simpson DNA; it could have come from any of us! Well, except you, since you’re a Bouvier.

Marge: No! No, no. When I took your father’s name I took everything that came with it, including DNA!

Lisa: Um…(rolls her eyes) Okay, Mom.

Of course, having parents with two different family names after marriage complicates the question of what name to give to any children. I propose an approach modelled on meiosis.

For the first generation, it is easy. The children of Mr. A B and Mrs. X Y would have the family name B-Y (or Y-B, whatever).

Once generations of people with hybrid names start to marry, however, there is the clear risk of infinite last-name expansion. If a B-Y marries an M-N, should any resulting children be called B-Y-M-N? What about when those B-Y-M-N children start marrying C-Z-O-P children?

This is where the meiosis comes in. When naming a child, each parent would choose how to cut down their own last name to one that is a reasonable length to serve as half of a hyphenated name. For example, someone with the unfortunate surname of ‘Schleswig-Holstein-Sonderburg-Glücksburg’ should probably pick one of four. Someone with a more reasonable surname, such as ‘Bowes-Lyon’, should pick one of two. Someone with a surname as concise as ‘Kent’ or ‘Chan’ could keep the whole thing.

I would leave it up to the individual to choose how to do the truncating. They can choose the parts of their ancestry that have more personal importance for them, or they can do it at random.

Through this approach, children would have names that more accurately reflect the reality of their lineage, without ending up with names that are impractically long.