Ciceronian Review

Sorting

Howard Wasserman, following Dorf, offers some critical comments on Gladwell's podcast about the LSAT and law schools.  Wasserman takes exception to various information gas in the two podcasts.  Mostly the comments focus on how the LSAT is a time-constrained test, and that some do better at such tests than others, and law school exams might more often be with long time constraints.  That is what the podcasts discuss, and there are a number of information gaps -- what scores various characters received.  I don't want to defend Gladstone.  He is creating entertainment, not scholarship.  He tells stories, many quite interesting, but none are, even on the surface, complete or fair.  Neither dorf nor Wasserman note that one fo the episodes begins with Justice Scalia talking to law students from American University -- that is the source for the story about Sutton, one of Scalia's best clerks.  What Wassserman is exercised about is that Galdstone implies that Sutton is a tortoise and did poorly on the LSAT.  No notice at all that Sutton was a Scalia clerk because Scalia took over Powell clerks when Scalia was confirmed.  And Powell hired from OSU law school. I.e., Scalia would not otherwise have hired Sutton, or, to be frank, even considered him.  And no notice of the fact that Scalia tells the AU students that none of them will be hired by Scalia -- he does not consider graduates from a school like AU.  This all gets tied back to LSAT scores, but, for me, the scores are not the most interesting part of the series.  The bits just mentioned, and the discussion -- all too brief and vague -- about success in practice with someone who counsels law firms about partner development.  He suggests that law school record has not much to do with who makes a good partner or who develops business best.  (The discussion is too abbreviated and hedged to get any sense of what the information background to the suggests is, or what factors do seem to be relevant signals -- quite frustrating.)  The theme I saw in the podcasts is that the career is marked by more or less arbitrary gates, that there is selection on arbitrary grounds. 

LSAT scores remain pretty good predictors of 1L grades.  1L grades and school are predictors of clerkships, and a first clerkship is a predicator (if not actually a qualification for) an appellate clerkship, which is more or less a prerequisite for a Supreme Court clerkships, which guarantee a fine career in law.  LSATs favor some kinds of test takers over others.  I would suppose so, but what is the complaint really?  Is there some independent and objective stuff the exam is supposed to be measuring, is there is a deserved score?  I think the LSAT is just a means to rank applicants, and that it measures little beyond predicting grades, which it does reasonably well.  And grades sort students and sort their initial career moves.  But none of it tells you much about who will be a good lawyer.  (Of what kind?  There cannot even be such a thing as in general a good lawyer.  The whole area is too fragmented and specialized, and the skills necessary for one area do not transfer in any direct way to other areas, and so on.)  It does not tell you who will develop business, or advance through the civil service, or, well, the rest of a life in law.  IN light of the pervasive arbitrary selection processes, why does it matter much if time constrained exams are bad for some people?

A final point.  Aside from the general silliness of hare/tortoise, being able to work quickly does sometimes matter.  In court, for example, responding to evidence and arguments.  Efficient completion to work -- clients might care that attorney A takes twice as long to draft a motion than attorney B.  Or takes more effective and efficient depositions. 

A final final point, or, if you prefer, P.P.S.  I understand why we, including me, like to believe that merit should and does matter, but, to be frank, it is luck that matter, not merit.  So good luck.

Zombie Justice

Assuming postmortem interests, I think there may be questions of postmortem justice.  Recognition and memorials are a resource or good that seem open to or subject to distribution.  Decisions are made about who gets memorials and that looks like something that has some element of justice to it.  If we are choosing, then are we responding to claims of desert?  Is it just whim?  Aesthetics?  Interests are being met and some are not, so that choice, even if structural, would implicate the views of justice in distribution.  So we have duties of justice towards the dead.  That should not be stranger than duties to future generations.  At least the dead are more or less specific; at least they were in fact persons, actual, and not still possible people. 

Do the dead have an interest in their remains, or in where their remains remain?  If I had a better sense of what would ground a postmortem interest I might venture a guess.  But this is new to me, and as is obvious, a bit puzzling.  On the other hand, is it so hard to swallow if future people have interests (now, not then)? 

 

Changing Trains

I finished the first volume of Parfit's On What Matters some time ago. The aim of the book is to reconcile consequentialism and Kantian deontic moral theory. The argument is largely constructed by analysis of various examples with an eye to deontic explanations, and then the deontic explanations by consequentialist theory. (Not quite that order, but I think that is one way to read the overall structure.) That volume has elicited a good deal of discussion of the nature and role of reasons, and I think volume 2 takes up the topic in some detail. (Have not read volume 2 as yet.) The book sort of went off the tracks for me relatively early on. The argument formed by examples or cases, and then some analysis. The examples are familiar variations of the Trolley Problems. The Trolley Problems are all variant cases asking about one's intuitions re whether it is morally permissible (or obligatory or prohibited) to cause one death in order to avoid killing a larger number. The cases are, e.g., may one throw a switch causing a trolley to switch tracks killing one person but thereby saving five others. Then you push the one person off a bridge, or open a trap-door, and so on. They are found in discussion of the doctrine of double effect, for example. Here is the problem from volume 1: Parfit introduces examples and then moves to the explanation of how the outcome is made to fit with one or another interpretation of deontic rules. But what happens when the intuition about how the cases should be decided are not shared? Parfit does not argue for particular interpretations of the cases; instead, the argument is from his intuition about the case to its fit with, e.g., maxim of ends as he interprets the maxim. If one does not share the intuition, the rest becomes hypothetical (in the sense that it just seeing how the machine runs). Which means there is no argument about what matters, only a complicated exegesis of what matters to Parfit. Maybe this concern is addressed in volume 2. I will have to read it to find out.

End of History

Rawls' lectures must have been quite interesting and fun to attend.  I found the book interesting reading.  (I liked WIggins' Twelve Lectures more.)  I wish it had changed more of my views, or any.  I suppose I have not read carefully enough.  Nevertheless, I still do not see that Kant offers a sensible account of morality or political theory, nor Hegel.  Kant's philosophy still seems to be a kind of mysticism.  I suppose a big part of my difficulty is with the talk of pure reason and the like, and the unyielding commitment to human beings as distinct from the remainder of the world.  It would work for the religious, but it is not consistent with seeing the world as we live in it.  One could, I suppose, just stick the two ways of thinking together,  a sort of intellectual sandwich.  But where is the link, the peanut butter as it were?  In Kant, one just has a kind of ipse dixit that there are two ways of thinking and they somehow fit together.  But no real explanation.  In the context of morality, there is no route from the pure practical reason to this world.  The Categorical Imperative does not get anywhere because it is not about events or acts at all.  There is overt rejection of reason within causation.  Well, I am repeating myself.  What I want to say is the lectures are worth reading and provocative.  Ever so important for me to say.

I think next I will go through Parfit's book.  (Like many, I have a PDF of a draft; unlike many I am not reading hundreds of pages on a computer screen so I have never read the draft.)  One thing I am anxious (interested? curious?) about is how Parfit connects his account of identity and personhood to his moral theory.  After that, I think I will re-read some Mackie.     

More on the Geat Pissant

I am most of the way through the section on Kant in Rawls' Lectures.  I have at last found a portion I agree with -- the practical necessity of belief in freedom.  Of course, that is not really what Kant would say and I don't think any Kantian would agree with the way I think about freedom in this context, but there is some common ground at long last.  I don't buy the pure practical reason talk, but there is a common conclusion.  In order to make sense of how people act, and how they conceive of themselves as acting, one has to assume some sort of freedom of will, and more robust than Hume would allow.  I have to work under the assumption that reasons and reasoning have some sort of efficacious powers.  In thinking about what to do, it does seem that one has to think that one can act on reason or reasons.  Even if there is some full causal determinism, one still thinks about choices, seeks to persuade, and so on, all of which are built on the idea that there is a free moral agent in attendance. Even this thinking about the thinking seems to me to suggest a commitment to freedom, as a practical matter.  I don't have to think that it is part of the full explanation of the world, or that there is some non-causal aspect to the world we live in.  So it is a practical necessity.  I also do not think it true.

Working through the longish lectures on Kant left me thinking that a great deal of Kant's philosophy is built around and of metaphor, rather abstract but still metaphor.  I still do not see quite what an end in itself is supposed to be or what it could mean in practice to treat others as ends in themselves, or, frankly, most o the rest of the stuff.  It alternates between a constricted world of all duty and a world without any moral content (because no duties can be specified).  It is a bit bothersome -- these are very smart folk and I still think they are blowing smoke and wiggling fingers, not more.

Secrets of NIMH

For Kant, morally good action conforms to the good will, and is done, on balance, out of regard for duty, i.e., whatever other motivations may exist, the agent finds the motive of duty sufficient for action (and, I presume, sufficient to overcome countervailing motivations should they arise).  Duty gets identified through application of the categorical imperative procedure, which involves, inter alia, specification of the conditions in which the action will occur.  (And some completely ad hoc generalization of factual conditions, but some other time.)  So, for any given act or course of conduct, how does one tell if it is morally good?  By assumption (and one hopes nto at all controversial as observation of human conduct), action may have multiple motivations or be the result of a multitude of desires and preferences.  Most are irrelevant to the moral quality of the action, which is dependant on whether the act was done with a regard for duty.  In other words, all acts are the same from the outside or observation.  Moral qualities are entirely private to the agent (and God I would venture).  Kant was a Christian believer and seems not to have had serious doubts about the existence of the Christian God.  Anyway, his arguments about good will and the like presuppose God.  Back to the point -- the ethics is quite private, it is entirely internal.  There does not look to be any route to judgment of conduct by human beings. 

I find that a telling deficiency.  Fatal.  It appears that the Kantian ethics cannot guide conduct because it has no public form or content.  (Yes, I think Searle is right that Kant was a solopsist.) 

I remember teaching this material by keeping the focus on the argument that the regard for duty only needed to be sufficient to motivate action as a hypothetical.  One did not need to act against one's desires and inclination.  Where they aligned with duty, the agent was a happy actor.  That seems to me still the proper way of presenting the material.  And the material is still wrong.

Worthy

I am about halfway through Rawls' Lectures on the History of Political Philosophy.  Done with the lectures on Hume and Liebniz.  The Hume lectures struck me as fair accounts, and interesting.  I am just starting the lectures on Kant.  It is a little disconcerting.  It has been a while since I read Kant, and had begin to think that my views applied to a fanciful caricature of Kant.  It is disconcerting to see Kant as weird as I had thought him.  The only thing good in itself is a good will, and morality is to make us worthy of happiness.  These are very peculiar ideas.  Some of it is a deep disinclination to think in the same general ways.  I don't see why a will would be good in itself, and am a bit doubtful that a will standing alone (so to speak) has any such moral quality at all.  It does not change the world in any way.  BUt it makes some sense in the context of religious views of the world; there one could well think that there is value inhering in a bare willing.  Anyway, the notion is hard for me to think of as a serious effort, yet it plainly is.  As well, it is now surprising to me that I got so many students to think of Kant as the great moral philosopher -- how did I do that given that I thought then as now that the project was, at the heart of it, nonsense.  

Worthy of happiness -- I have been puzzling over this all weekend.  It must be something about reasonable persons because it cannot be that there is some standard of worthiness for dogs or small children being happy.  I don't see how there could be any sense, even on the surface, to the question of whether some Schnauzer is worthy of happiness, or a ten year-old.  Why or how the lines would be drawn among kinds of creatures who are or could be happy is, at the least, a mystery.  But suppose there is something about reasonable persons that allows a line to be drawn and one can ask whether such are worthy of happiness -- it is still a very weird idea (to me).  It seems to require some very elaborate system of appraisal, reaching to every corner of every life; in other words, a deeply religious attitude towards ethics -- theory for the capricious god.  I don't see how it gets us to anything useful or intelligible about living.  On the other hand, it is important to work at seeing theories in their contexts.  Kant was a Christian and his theories do not (as far as I can tell) seriously consider the question of justifying belief in God.

 

Just Is

Dworkin's essay in the NYRB about, I think, how one ought to live, gives some attention to Hume and Hobbes, which is something of a change for philosophy in that journal.  It is usually resolute Kantins crashing into resolute Utilitarians.  It is nice to see something different mentioned.  Yet, it is not quite enough to do what should be done even in such a short essay.  Hume's moral theory is not just about feeling sympathy, Hume's "principle" is not in Hume.  "Hume's principle that no amount of empirical discovery about the state of the world can establosh conclusions about moral obligations" is not a principle found in Hume.  It is the result of an egregious misreading of a small section of Book Three of the Treatise.  A difficulty with thinking this is Hume's principle is that his theory of justice, his theory of natural and artificial virtues all suppose something rather different.  First, the section where the principle is supposed to be found is not a discussion of the nature of moral value or of ethics.  It is, instead, a discussion of existing systems of ethics (or morality, if you prefer), the point of which is that most moralists go from discussions of what social customs are to the view that they must be so.  But that is a point about social conservatism and conflation of particular arrangements with some eternal moral order.  It is not a claim that there is some great unbridgeable gap between is and ought.  That makes more sense than supposing that Hume offers up a refutation of his own theories and never notices.  And it would be a refutation because Hume's accounts of justice and ethics are based on views about how people are and how they respond to the pressures of the world.  A greater part of justice, as we confront it, is convention, which gets its patina of moral claim because of facts about how the convention operates.  Sympathy is something shaped by culture, and its demands on us are matters of fact about psychology and social forces.  There is not some special additional dimension of normativity, no magic world hovering about the physical world.  The mistake Dworkin makes is pretty common, I think because not all that much of Hume is read.  I suspect most people, to the extent they read any Hume, do so in excerpts, in anthologies.  The Treatise and Enquiries and Essays are left off for specialists.  It is a shame, because Hume, wrong in a host of matters, is a far better place to begin thinking about these issues than is Kant.

Anyway, the principle is wrong.  Language shows that.  See Searle.

Hobbes

I am reading Lloyd's new book on Hobbes (it is over there on the reading list).  I am not a big Hobbes fan; when I read his work the long ago days of academic life, the prevailing interpretations made Hobbes seem rather in the hopeless category.  The psychological egoism coupled with a political theory that seemed aimed at showing that it was always in one's interest to obey the sovereign.  Even the remarkable efforts of Kavka could not keep that sort of approach from being obviously on the wrong track.  The assumptions just are too far from any human society.  But Lloyd has been revising that whole approach to Hobbes.  (And she writes very well, so her books are fun to read.)  I can't really speak to whether her account of Hobbes is the best or a good account of Hobbes.  I am not willing to test it on that score.  More interesting for me is whether the account she advances offers food for an approach to political theory that might enlighten us.  So the next week or two will be devoted to comments on Lloyd's account of Hobbes.

The View Gets A Little Long and Confused

The NYT ran a review of Christianity: The First Three Thousand Years by D. MacCullough in the Sunday Book Review.  A favorable review, which I won't gainsay as I've not read the book.  The review and the reviewer's views are not quite coherent, however.  Consider this bit from the early portion of the review:

Christianity’s foundational belief is that Jesus was the Son of God, who died and rose again as an atoning sacrifice for the sins of a fallen world. It seems banal even to note this. But guess who did not know it on that epic morning of Resurrection long ago? Those closest to Jesus, the disciples, who, when told of the empty tomb by the women who followed Jesus, were perplexed: what could this mean? Jesus had not adequately prepared them for the central dramatic action of the new salvation history that was to take shape in the wake of his Passion. Read carefully, the Gospels tell the story of the disciples’ working out what a resurrected Messiah might mean, and the conclusions they drew formed the core of the belief system that became Christianity.

Why the initial uncertainty? Because it is vastly more likely that Jesus’ contemporaries expected his imminent return to earth and the inauguration of the kingdom of God — a time, in first-century Jewish thought, that would be marked, among other things, by a final triumph of Israel over its foes and a general resurrection of the dead.

(Emphasis added).  Now compare that to this bit from the end:

To suggest that such supernatural stories are allegorical can be considered a radical position in even the most liberal precincts of the Christian world. But the Bible was not FedExed from heaven, nor did the Lord God of Hosts send a PDF or a link to Scripture. Properly understood — and MacCulloch’s book is a landmark contribution to that understanding — Christianity cannot be seen as a force beyond history, for it was conceived and is practiced according to historical bounds and within human limitations.

The inference which this suggests rather strongly, but does not explicitly draw, is that the allegorical interpretation of Bible passages is not at all what was intended in their composition.  If not allegorical, then absurd.  And so off from reason. 

The example of Christianity and abolition, though, is ultimately a cheering one.

Cheering because it took only about two thousand years for Christianity to repudiate slavery?