Socioscientific evidence and supreme court numerology: When justices attempt social science

In Stanford v. Kentucky, in which two juveniles sentenced to death raised an Eighth Amendment challenge, Justice Scalia's plurality opinion set the ground rules for deciding juvenile death penalty cases. He ruled ?socioscientific”? evidence and philosopher-king decisions out of bounds. Scalia argued that the Court must do its own social science analysis of the objective indicia to gauge whether community sentiment finds such a punishment cruel and unusual. In determining whether a ?national consensus”? exists, Justice Scalia transformed the empirical question into an impossible question, requiring that a categorical aversion must be shown. Petitioners lost, but so too did social science jurisprudence, as ?statistical magic”? and ?numerology”? reigned supreme.     

The United Nations Convention on the Rights of the Child: a basis for jus cogens prohibition of juvenile capital punishment in the United States

This article supports the position that the 1989 United Nations Convention on the Rights of the Child (CRC) articulates a prohibition of capital punishment of juveniles that now must be considered a norm of jus cogens. The article provides statistics and trends regarding juveniles who commit capital crimes and describes how the U.S. justice system handles such juveniles, including Eighth Amendment analyses of juvenile executions under the U.S. Constitution. The article also discusses community consensus regarding evolving standards of decency, describes international law on the capital punishment of juveniles, and outlines worldwide trends in juvenile executions. It then defines and describes the concepts of customary international law and jus cogens, applying these concepts to the problem of the execution of juveniles in the United States. The article concludes by suggesting that there is a moral imperative for universal prohibition of juvenile capital punishment and by speculating about the domestic effects of applying such a jus cogens norm in the United States.     

The Capital Punishment Debate: Public Perceptions of Crime and Punishment1

Psychophysical scales for seriousness of crime and severity of punishment were developed to aid in investigating the Eighth Amendment issue of whether the death penalty is “cruel and unusual” punishment. Using indirect crossmodality matching techniques with a quota sample of the Boston SMSA, satisfactory scales were obtained for both dimensions with most items in both scales concentrated toward the serious/severe end as planned. Further, specific case vignettes in which experimental variations were embedded were also developed; psychophysical lines production judgments for these specific cases indicated that quite complex social stimuli can be successfully judged psychophysically. Results indicated that (1) capital and noncapital offenses are thoroughly intermingled in seriousness ratings; (2) the death penalty is not rated as significantly more severe than life imprisonment without parole; (3) respondents assign the death penalty relatively rarely even to serious offenses, and then in a manner not particularly in line with capital statutes; and (4) respondents' weighing of extra-legal and legally relevant aspects of capital cases is inconsistent with current statutes. These results suggest multiple ways in which capital punishment could be defined as “cruel”, and strongly suggest the need for further research and through about the issue.     

The Deserving Underclass: a Focus for Social Work Policy in the Year 2001

The Supreme Court decision in the case of Jane Lib vs. the State of Connecticut (1999) held that the institution of matrimony is unconstitutional because it violates the Eighth Amendment prohibiting cruel and unusual punishment. This decision, while freeing some people from bondage, has generated a new type of sexual underclass. The social work profession needs to develop policy guidelines to serve this new underclass.     

Is An Agreement An Exchange of Intentions?

Abstract: Margaret Gilbert has argued that an agreement is not exchange of promises, since no such exchange plays all the roles she claims are distinctive of agreements. After briefly discussing the notion of intention and the principles governing intentions, I argue that a certain type of exchange of intentions – in which one person forms a conditional intention to act if the other does, and the other forms an unconditional intention to act on the presumption that the first will do what they have said – plays all these roles, and so conclude that an agreement is in fact an exchange of intentions.     

Rethinking the videogame case: trying and intending

In this paper, I defend the view that a person performs an action A intentionally only if she intends to A against Michael Bratman’s alleged counterexample to it: the videogame case. I object that Bratman is mistaken in assuming that the consistency among an agent’s intentions is about the consistency among intended goals or objectives. Instead, I argue that the real reason why an agent’s intentions need to be consistent with each other is due to the necessity of the compatibility of corresponding efforts of trying. But unfortunately for Bratman, this efforts-based consistency constraint – as a replacement of the objectives-based consistency constraint – cannot save the videogame case.     

Pedagogy and the Art of Death: Reparative Readings of Death and Dying in Margaret Edson’s <Emphasis Type="Italic">Wit</Emphasis>

Wit explores modes of reading representations of death and dying, both through the play’s sustained engagement with Donne’s Holy Sonnets and through Vivian’s self-reflexive approach to her illness and death. I argue that the play dramatizes reparative readings, a term coined by Eve Kosofsky Sedgwick to describe an alternative to the paranoid reading practices that have come to dominate literary criticism. By analyzing the play’s reparative readings of death and dying (as well as its representation of the shortcomings of paranoid readings), I show how Wit provides lessons about knowledge-making and reading practices in the field of health humanities.     

Normative Impulsivity: Adorno on Ethics and the Body

Abstract

Adorno’s commitment to anti-foundationalism generates a concern over how his ethically normative appraisals of social phenomena can be founded. Drawing on both Kohlmann and Bernstein’s account, I produce a new reading which contends somatic impulses are capable of bearing intrinsically normative epistemic and moral content. This entails a new way of understanding Adorno’s contention that Auschwitz produced a new categorical imperative. Working with Bernstein’s account, I claim that Auschwitz makes manifest the hostility of the instrumentalization of reason to the somatic grounds of reason. One’s mimetic identification with the victims of Auschwitz arouses a self-preserving desire to intercede in and re-orient the progress of reason itself, for the sake of one’s own somatic integrity. In closing, I claim – contra Zuidervaart – that this reading allows us to place the ethical as primary in Adorno, without reducing the political to it.     

<Emphasis Type="Italic">Justice for Hedgehogs</Emphasis>, Conceptual Authenticity for Foxes: Ronald Dworkin on Value Conflicts

In his 2011 book Justice for Hedgehogs, Ronald Dworkin makes a case for the view that genuine values cannot conflict and, moreover, that they are necessarily mutually supportive. I argue that by prioritizing coherence over the conceptual authenticity of values, Dworkin’s ‘interpretivist’ view risks neglecting what we care about in these values. I first determine Dworkin’s position on the monism/pluralism debate and identify the scope of his argument, arguing that despite his self-declared monism, he is in fact a pluralist, but unusual in denying conflict between plural values. I then set out the structure of his interpretive theory of value relations and present a case of value conflict which I think interpretivism cannot deal with. Following this I argue that there are structural reasons why cases like this are liable to occur and suggest that interpretivism will frequently fail to properly reflect people’s moral commitments because reinterpretation of values has the side effect of excluding important moral commitments from our conceptions of values. While, as Dworkin argues, there are no brute moral facts concerning values, moral psychology constrains the range of acceptable conceptions of values. Given the shortcomings of interpretivism I conclude that we should acknowledge that values may conflict.     

Dworkin and Casey on abortion

This article responds to two important recent treatments of abortion rights. I will mainly discuss Ronald Dworkin's recent writings concerning abortion: his article "Unenumerated rights: whether and how Roe should be overruled," and his book Life's Dominion. In these writings Dworkin presents a novel view of what the constitutional and moral argument surronding abortion is really about. Both debates actually turn, he argues, on the question of how to interpret the widely shared idea that human life is sacred. At the heart of the abortion debate is the essentially religious notion that human life has value which transcends its value to any particular person; abortion is therefore at bottom a religious issue. Dworkin hopes to use this analysis to show that the religion clauses of the First Amendment provide a "textual home" for a woman's right to choose abortion. I wish to scrutinize this suggestion here; I want to probe the precise consequences for abortion rights of such an understanding of their basis. I will argue that the consequences are more radical than Dworkin seems to realize. The other work I will examine here is the important 1992 Supreme Court decision on abortion, Planned Parenthood v. Casey. The controlling opinion in that case, written jointly by Justices Kennedy, O'Connor, and Souter, strongly reaffirmed Roe v. Wade, but also upheld most of the provisions of a Pennsylvania statute that had mandated various restrictions on abortion. The justices' basis for upholding these restictions was their introduction of a new constitutional standard for abortion regulations, an apparently weaker standard than those that had governed previous Supreme Court abortion decisions. I think there is a flaw in Casey's new constitutional test for abortion regulations, and I will explain, when we turn to Casey, what it is and why it bears a close relation to Dworkin's reluctance to carry his argument as far as it seems to go.     

Legal punishment of immorality: once more into the breach

Gerald Dworkin’s overlooked defense of legal moralism attempts to undermine the traditional liberal case for a principled distinction between behavior that is immoral and criminal and behavior that is immoral but not criminal. According to Dworkin, his argument for legal moralism “depends upon a plausible idea of what making moral judgments involves.” The idea Dworkin has in mind here is a metaethical principle that many have connected to morality/reasons internalism. I agree with Dworkin that this is a plausible principle, but I argue that some of the best reasons for accepting it actually work against his enforcement thesis. I propose a principled distinction between the immoral-and-criminal and the immoral-but-not-criminal, and argue that a principle at least very much like it must be correct if the metaethical principle Dworkin avows is correct.     

Killing kids: The juvenile death penalty and community sentiment

In the Supreme Court's Eighth Amendment jurisprudence, “community sentiment” plays a central if not dispositive role in determining if a punishment is disproportionate. To gauge sentiment on the death penalty for juveniles, two experiments with death-qualified subjects were run, where age (a 15–25 age range) and case (heinousness) were varied in the first, and type of defendant (principal, accessory, or felony-murder accessory) and an extended age range (13–25) varied in the second. Significant age effects occur in both experiments, with approximately 75% and 65% refusing to give the death penalty for the youngest (13–15) and next youngest (16–18) groups, whereas 60% give the death penalty for the 25-year-old. In their reasons for their decisions, the killing kid was judged less blameworthy and death-worthy. Although politicians have called for “a man-sized punishment for a man-sized crime,” this community does not see that “man-sized” punishment fitting the kid.     

The Chinese Understanding of Wittgenstein’s Mysticism in the Tractatus

Wittgenstein’s mysticism has been one of the focuses of critics and commentators of Tractatus Logico-Philosophicus. Two prevailing readings hold different attitudes towards it. The classical reading commits to the mysticism in the Tractatus, while the therapeutic reading rejects it amid its interpretation of Wittgenstein’s later philosophy. In this paper, I will argue against both by discussing how the Chinese reading understands the Tractatus. I will show that the ineffable in the Tractatus is not any type of mysticism, and that the Chinese reading of the Tractatus is a metaphysical one without any mysticism.     

Locke’s arguments against the freedom to will

In sections 2.21.23–25 of An Essay concerning Human Understanding, John Locke considers and rejects two ways in which we might be ‘free to will’, which correspond to the Thomistic distinction between freedom of exercise and freedom of specification. In this paper, I examine Locke’s arguments in detail. In the first part, I argue for a non-developmental reading of Locke’s argument against freedom of exercise. Locke’s view throughout all five editions of the Essay is that we do not possess freedom of exercise (at least in most cases). In the second part, I argue that, when Locke asks whether we possess freedom of specification, his question is intentionally ambiguous between two readings, a first-order reading and a higher-order reading. Locke’s view is that, on either reading, we do not possess freedom of specification (at least in any interesting sense).     

Structure Disclosed. Replete Moments and Aesthetic Experience in Reading Novels

ABSTRACT

Despite the huge interest in different philosophical questions surrounding literature, particularly analytic philosophers have had relatively little to say about literature’s specifically aesthetic character. Peter Kivy has developed this antiaesthetic tendency furthest, ultimately denying that the reading of prose literature has any deep aesthetic content. Building on Alan Goldman’s and John Dewey’s work on aesthetic experience, I argue that a key literary feature of novels I single out – what I term a replete moment – has the potential to trigger in readers significant aesthetic experiences. Along with revealing aesthetic aspects in reading that Kivy’s position does not cover, my account shows that contemplation of the overall structure of the novel is not the sole, more substantial form aesthetic experience can take in the case of reading, as Kivy’s formalistic literary aesthetics assumes. This conclusion is argued to be significant also for the general philosophical discussion on aesthetic experience. An analysis of a key passage in John Irving’s A Prayer for Owen Meany is an important part of the view of literary aesthetic experience put forth.     

Autonomy and radical evil: a Kantian challenge to constitutivism

Properly understood, Kant’s moral philosophy is incompatible with constitutivism. According to the constitutivist, being subject to the moral law cannot be a matter of free choice, and failure to comply with it is to be understood as a deficiency in one’s integrity as an intentional agent. I reconstruct Kant’s arguments to the conclusion that immorality, moral evil, consists in choosing to give one’s unity as an intentional agent supremacy over the moral law, and that one’s being subject to the moral law must be one’s own free choice. And I explain how Kant’s doctrine of radical evil, according to which we cannot be subject to the moral law without actually being morally evil, protects this conclusion from entailing the denial of the unconditionally binding character of moral principles, which character constitutivists correctly identify as the central concern of Kant’s – or any – moral philosophy.     

Retributivism revisited

I’ll raise a problem for Retributivism, the view that legal punishment is justified on the basis of desert. I’ll focus primarily on Mitchell Berman’s recent defense of the view. He gives one of the most sophisticated and careful statements of it. And his argument is representative, so the problem I’ll raise for it will apply to other versions of Retributivism. His insights about justification also help to make the problem particularly obvious. I’ll also show how the problem extends to non-retributive justifications of punishment. I’ll argue that Berman’s argument makes a questionable assumption about the standard of justification that justifications of punishment must meet to be successful. If we think about what it takes to justify punishment and reflect on the intuitions that retributivists appeal to, it turns out that the intuitions aren’t obviously up to the task.     

The Importance of Philosophy: Reflections on John Rawls

This paper tackles the question whet her we should punish a remorseful offender. Traditional retributive and consequentialist theories on punishment are struggling with the question of the justification of punishment, but I think a more basic question needs to be solved first; namely, how can we interpret the practice of punishment. I state that a theory of symbolic restoration can help us to understand the meaning of this practice. A theory of symbolic restoration depends on an expressivist account of punishment, like Joel Feinberg's. Expressivism gives us an insight into the importance of the feeling of moral condemnation and it is this feeling that gives rise to the longing for punishment and remorse. Because of moral condemnation after a crime we ask for punishment and expect some kind of remorse. The question is whether punishment can be exchanged for remorse and I argue that in certain cases it cannot. The punishment of a remorseful offender is, I argue, – in certain cases – justified.     

Equality of Resources and the Problem of Recognition

Liberal egalitarianism is commonly criticized for being insufficiently sensitive to status inequalities and the effects of misrecognition. I examine this criticism as it applies to Ronald Dworkin’s ‘equality of resources’ and argue that, in fact, liberal egalitarians possess the resources to deal effectively with recognition-type issues. More precisely, while conceding that the distributive principles required to realize equality of resources must apply against a particular institutional background, I point out, following Dworkin, that among the principles guiding this background is a ‘principle of independence,’ and that this principle, properly interpreted, requires government to protect people against the disadvantageous effects of wrongful prejudicial discrimination. Moreover, I give an account of wrongful prejudice which is grounded in a particular interpretation of the abstract egalitarian principle Dworkin requires for a government to be legitimate and which goes a long way toward acknowledging status inequalities. Finally, I suggest other resources within the theory for responding to residual problems of recognition not addressed by the principle of independence.