Tag: justice

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Justice, Compassion, and the Dreamers

DACA controversy reveals conflict between blind justice and broad compassion

Fresno Bee, September 8, 2017

The reconsideration of DACA presents an example of the conflict between justice and compassion. It also shows us the conflict between a narrow conception of our obligations and a broader point of view.

Justice requires impartial application of rules. The goddess of justice is blind. She administers law without considering the identity of those who receive her decisions. Justice is a goddess of the public sphere. She demands that we extend moral concern universally, fairly, and without exception.

Compassion operates differently. The goddess of compassion opens her eyes and her arms. She attends to people’s concrete situations, making exceptions for the disabled, the displaced and the disadvantaged. The motherly goddess of home and hospitality focuses on individual identity and relations of care.

Compassion and justice disagree whenever there is a conflict between mercy and rule-following. Justice requires equal treatment and unbiased judgment. Compassion makes exceptions for special needs and mitigating circumstances.

The DACA debate asks whether we should extend compassion to the children of immigrants who did not knowingly violate the law when their parents brought them here. Justice may ignore this fact and simply apply a rule that says if you are not here legally, you must leave. Compassion begs us to consider that these young people have no other home to return to and bear no responsibility for their predicament.

President Trump’s statement about DACA uses moral language. But he prioritizes compassion for Americans, saying, “We must also have heart and compassion for unemployed, struggling, and forgotten Americans.” He admits there is something unfair about punishing children for the actions of their parents. But he said that fairness for American citizens was his first priority. He explained, “Before we ask what is fair to illegal immigrants, we must also ask what is fair to American families, students, taxpayers and job seekers.”

Trumpian morality applies compassion and justice in a limited nationalistic way. This fits with the president’s America first agenda.

Moralists have often criticized this kind of nationalism. The goddesses of justice and compassion are not national deities. Morality universalizes.

Justice and compassion extend across borders. The goddess of justice is blind even to national identity claims. And the “mother of exiles” – as the Statue of Liberty has been called – opens her arms to the world’s homeless and huddled masses, yearning to breathe free.

ANY RESOLUTION WILL REQUIRE US TO THINK CAREFULLY ABOUT THE NATURE OF LAW AND MORALITY.
IT WILL ALSO REQUIRE US TO REFLECT ON WHAT IT MEANS TO BE AN AMERICAN.

It is not surprising that American religious leaders responded with dismay to Trump’s announcement. The U.S. Conference of Catholic Bishops condemned Trump’s decision. The bishops wrote, “Today’s actions represent a heartbreaking moment in our history that shows the absence of mercy and good will, and a short-sighted vision for the future.”

Mercy and good will are the heart of the ethics of compassion. The bishops extend this globally, applying the commandment to love one’s neighbor in a universal direction.

Trump and his supporters reject this view of morality. They also discount the religious critique of this policy. Steve Bannon, Trump’s former chief strategist, said that limiting immigration was a matter of “national sovereignty.” He also said that the Catholic church has “an economic interest in unlimited immigration,” suggesting that the church wants immigrants to fill pews and coffers.

The president and his supporters have also claimed that Obama’s Deferred Action for Childhood Arrivals program was unconstitutional. They want Congress to take action. But hundreds of law professors, governors, and other legal and political leaders have argued that DACA is constitutional.

The constitutional question is related to the moral question. Does our legal system require strict impartiality and blind justice or does it permit discretion and compassion? Is the Constitution a system that puts America first and focuses only on questions of national sovereignty? Or are there values in our constitutional system that point in a more cosmopolitan direction?

These are not easy questions to answer. We disagree about religion, morality, and the Constitution itself. These conflicts run so deep that they may never be resolved.

But any resolution will require us to think carefully about the nature of law and morality. It will also require us to reflect on what it means to be an American.

http://www.fresnobee.com/article172036532.html

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Justice, Mercy, and the Death Penalty

Ballot offers choice between justice and mercy

   Andrew Fiala

Fresno Bee 2012-10-06

Proposition 34 aims to repeal the death penalty in California, while replacing it with life imprisonment without parole.

Those arguing in favor of Prop. 34 claim that abolishing the death penalty will save money which can be used to pursue criminals. The election booklet clarifies this focus on law enforcement by saying, “we cannot let brutal killers evade justice.” The argument also claims that abolishing the death penalty will ensure that innocent people are not executed.

Opponents of Prop. 34 argue that without the death penalty, murderers would indeed evade justice. That argument claims, “Proposition 34 lets serial killers, cop killers, child killers, and those who kill the elderly, escape justice.” The argument then describes a number of cruel and brutal murders.

This points toward some deep moral issues.

Justice appears to require an equivalence between crime and punishment. The retributivist idea of “eye for eye, life for a life” may have developed as a way of restraining the desire for revenge. Consider, for example, the ancient Greek story of Achilles. When his friend was killed, Achilles went on a rampage, slaughtering every Trojan he could find. Achilles defiled the body of his friend’s killer and ritually murdered a dozen Trojan prisoners. From the standpoint of “life for life,” Achilles’ revenge was unjust.

The “life for life” ideal may establish a duty to execute. Immanuel Kant once argued that even if society were to collapse and the prisons were to be dismantled, we would still have a moral obligation to kill every murderer awaiting execution. For Kant, we have an obligation to the murder victim — and to the murderer himself. People should be given what they deserve. If murderers deserve to be killed, we ought to deliver justice, even if it is inconvenient or expensive.

An alternative to retributivism is an ethic of mercy. When we show mercy, we give people less than what they deserve, perhaps because we feel compassion to them. The ethic of mercy is associated with Christianity, with Jesus recommending that we “turn the other cheek” rather than taking an “eye for an eye.” The Catholic Bishops of California have argued in support of Prop. 34, connecting it with a larger “pro-life” view. The California Catholic Conference website explains: “we consistently proclaim the intrinsic worth and the God-given dignity of all human life, whether innocent or guilty.” They claim that if society can be protected from violence through the use of life imprisonment, this is preferable to killing the murderer.

This points us toward the question of protecting society and the deterrent effect. The question of deterrence is a complex one, depending on a variety of psychological and social factors. Are murderers rational? Do they value their own lives enough to engage in cost-benefit analysis, weighing the risk of punishment before they engage in their crimes? There is no proof that the death penalty, as currently employed, has a deterrent effect on a murderer.

One reason for this is the infrequent use of the death penalty. The November election book explains that since 1978 about 900 people have been sentenced to death. But only 14 have been executed. When you are more likely to die on death row of natural causes than to be executed, there is not much reason to fear a death sentence.

If we really want to deter crime, we may need swifter and more certain system of execution. But opponents will argue that this could lead us to execute some innocent people, who are protected by the lengthy appeals process. For deterrence to work, we might want to return to public executions–public hangings or the guillotine. The spectacle of a brutal execution may in fact scare people away from crime. But our current practice emphasizes the painless killing of lethal injection.

This brings us back to the question of justice and mercy. We no longer cut off criminal’s heads or hang them in public. Why not? Perhaps we are simply squeamish about doing what justice requires. Maybe we just don’t like to see blood — even when we believe that it is justly spilled. Or perhaps we are convinced that mercy and compassion are important values. We’ll see whether justice or mercy wins out in the November election.

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Olympic Athlete Pistorius and Fairness

Olympic athlete raises complex issue of fairness

   Andrew Fiala

Fresno Bee 2012-07-28

We are born into this life without any choice about our bodies or our social situation. Some are born rich, tall and good looking. Others are born poor, unhealthy or disabled. From a certain perspective, life just isn’t fair. But technology can help to make it fairer.

That’s one lesson to be drawn from the story of Oscar Pistorius, a South African Olympian who was born without fibulas — the bones in his lower legs. In London, he will run the 400 on carbon fiber blades.

While Pistorius’ success is an inspiration, some worry that permitting this technological boost will undermine the purity of the sport of running. Others have complained that his prosthetic legs give him an unfair advantage.

Scientific American recently examined this question. Pistorius uses less energy, due to the elastic action of the blades. His lower “legs” are lighter than those of other runners; and they do not tire. But Pistorius must compensate for the light springiness of his legs by bearing down on his prostheses in a way that no other runner must do.

Scientists were unable to answer the vexing question of whether Pistorius was on a “level playing field” with other runners. The concept of a “level playing field” is a fuzzy one that points beyond science to a variety of ethical issues. I asked professor Jeffrey Fry, an expert on the philosophy of sport at Ball State, about this issue. Fry reminded me of the difficulty of defining justice and the idea of a level playing field in sports.

Since Aristotle, justice has been defined as treating similar people similarly and treating dissimilar people differently. Faster runners receive medals, while the losers receive nothing. The purpose of the game is to differentiate among people. It is not unfair that the winners are rewarded. But we also think that competition should be fair, which means that no one should have an unearned or undeserved advantage or disadvantage. This is why doping is outlawed: It creates an undeserved advantage.

Professor Fry indicated that there are other kinds of undeserved advantages and disadvantages that we conveniently ignore. Social and economic factors influence athletic performance. You can’t excel at a sport unless you have access to facilities, coaches and equipment. Athletes from poor countries may not really have a “fair” chance against athletes from rich countries.

And we are all victims of a genetic lottery, which determined our gender, our eyesight and our body type. Michael Phelps was born tall, with long arms and big feet, which apparently helps in swimming. Oscar Pistorius was born without fibulas. Those advantages or disadvantages are matters of luck that neither Phelps nor Pistorius did anything to deserve. In a certain metaphysical sense, it is unfair that Phelps is tall, while Pistorius lacked legs.

It’s true that each athlete has done amazing things with his genetic endowments. But the deck was stacked against Pistorius. It seems appropriate to allow technology to level the playing field. While admitting this, Fry also concluded, “We don’t want differential use of technology to be decisive.”

But what forms of technological assistance are “decisive”? What about running shoes, or diet and access to training equipment? We permit people with bad eyesight to use technology to fix their eyes so they can play golf, tennis and other sports. Should people with other disabilities be allowed to use other forms of technological assistance?

The issue of fairness and disability in sports is a microcosm for thinking about fairness in other parts of life. People with different abilities compete in business, in politics and in the world of romance. The rich, the tall and the beautiful appear to have an unfair advantage over the rest of us. And for a long time, there was outright discrimination against women, minorities and the disabled.

The Pistorius story shows us that we are doing better at treating people fairly. Technological assistance is able to level certain playing fields. There is still a long way to go in overcoming discrimination — especially discrimination against the disabled. But we seem to agree that we ought to try to make life less unfair for those who have done nothing to deserve their disadvantage.

 

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Animal Play, Religion, and Poverty

All children deserve time to play

   Andrew Fiala

Originally published Fresno Bee 2012-05-19

Most mammals play. We even play with members of different species — as we do with our pets. This is an odd development in a world in which species are supposed to struggle for existence against one another.

Animals at play are not struggling to survive. Rather, they are engaged in imaginative and empathetic activity. Some nonhuman animals even appear to have a basic idea of “fair play.”

At least that is what Robert Bellah claims. Bellah, one of the most important scholars of religion in the U.S., gave a lecture last week at Fresno State on his new book, “Religion in Human Evolution.” The book explains the evolutionary roots of ethics, religion and philosophy.

Bellah argues that play is an important source of these higher goods. Play occurs in a “relaxed field,” when we are not focused on mere existence. Religious rituals, for example, are examples of rule-governed play. Philosophy, art and science develop as we play with ideas. These activities are meaningful on their own, without reference to the struggle to survive. And they provide solace and satisfaction, as a break from the labor of living.

One could argue that a fully human life is one in which there are ample opportunities for enjoying playful and empathetic activity, outside of the concerns of work and survival. All work and no play makes us dull animals — as the saying might go. Bellah suggests that this is true of many species. Animals thrive when they are free to explore, relax and socialize.

The importance of leisure and play is found in our dreams of a perfect world. Our utopian ideals and religious paradises describe a world without labor, struggle or conflict. Christians dream of lions lying down with lambs. And Plato imagined a peaceful world in which we would play at pastimes — “sacrificing, singing and dancing.”

It makes sense that intelligent animals would imagine an ideal world in which the struggle for existence was overcome. We lament the hard work of life. We aspire to freedom from want. We even imagine that after the toils of life, we may be rewarded by resting in peace without the need to labor.

Surplus resources and physical security make it possible for us to play, reflect, explore and create. Bellah explains that even in nonhuman species, play behavior is made possible by protective parents who provide for basic needs. Nurturing parents allow the young to experiment and romp without fear of predators or hunger. This sort of nurturance allows the animal to take a break from feeding and fighting in order to frolic.

During his visit to Fresno, Bellah returned several times to the issue of poverty and injustice. The sad fact is that there are many human beings who are not free to play — people who have little time or energy for singing, dancing, science, art, religion or philosophy. This is unfair, especially when others enjoy substantial luxury.

The idea of social justice, as found in the world’s great religious and philosophical traditions, develops from this basic idea of fairness. Philosophers and prophets have long criticized injustice and inequality. Bellah suggests that fairness itself may have roots in animal evolution. He claims that some animals seem to show a sense of “fair play.” Dogs will take turns, for example, chasing each other.

Bellah connects play with childhood. But he notes that in some parts of the world the play of childhood remains a privilege of the wealthy, unavailable for poor children. Across the globe, millions of children go hungry, while Americans spend more than $50 billion per year on pet food and animal care.

Bellah writes that one way of describing unfairness is to say that “while some work, others play.” We might add that there is something unfair about a world in which dogs are well-fed, while children starve.

We flatter ourselves in thinking we are more highly evolved than the other animals. But a species that fails to provide for its own children is not clearly superior. Bellah’s evolutionary account of religion reminds us that there is still a long way to go to make sure that all human children have the opportunity to live as well as our dogs do.

 

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Occupy movement about sense of unfairness

‘Occupy’ movement about sense of unfairness

Fresno Bee, Oct. 21, 2011

The “Occupy Wall Street” movement is an expression of resentment about inequality. The motto of the movement – “We are the 99%” – shows this. The top 1% of Americans hold half of the nation’s wealth. Corporate CEOs are doing well, while wages stagnate, hours are cut and debt increases for the rest of us.

It is not surprising that these inequalities cause resentment. Resentment is about fairness. And things seem unfair to many Americans today.

Some inequalities are fair: such as inequalities that result from differences in talent or expertise. We want the pilot to fly the plane, not the flight attendant. Resulting inequality of income is fair – so long as it is reasonable and leaves the flight attendant doing well. In a similar way, inequalities resulting from certain genetic differences can be fair. Tall and fast kids get to play on the basketball team. But fairness means that there should be other opportunities for other kids.

Genetic differences can produce unfair inequalities. Racial discrimination and sexual inequality are unfair because racial and gender differences are irrelevant to performance. It would be unfair if women were not allowed to be pilots, for example, as was once the case.

Individuals do not earn the advantages or disadvantages of their genetic differences – these differences are a matter of luck. The advantage of inherited wealth is also a matter of luck. Rich kids don’t earn the advantages of wealth: They are just fortunate. Individual initiative does matter in the long run. Poor kids can do well, despite their relative disadvantage; and rich kids can fail to achieve. But a privileged starting point will give you an advantage. And this seems unfair – because neither the poor kid nor the rich kid has earned their relative difference.

This is not to say that we should engage in “class warfare” to make rich kids miserable. In a certain sense, that would be unfair as well, since parents should be free to help their own children excel. Rather, the point is that poor children should have fair opportunities for wellbeing. The drive for equality is not about bringing the privileged down. Instead it is about lifting the underprivileged up and providing a fair starting place. Women should be able to fly planes and poor kids should have decent schools.

The basic idea here is equality of opportunity. This idea was defended by John Rawls, the most important political philosopher of the past century. Rawls said that inequalities are justified only when they benefit the least advantaged. The basic idea is that as the rich get richer, the poor should also do better. When this happens, resentment diminishes because even the poor will agree that they benefit from the system.

This idea undergirds our graduated income tax system: as the rich get richer, their tax dollars help poor kids in poor schools. This creates equality of opportunity and a sense of fairness. For Rawls, the aim is to “improve the long-term expectations of the least favored.”

Presumably, most Americans agree with this idea. It is a basic value in the Christian tradition. In the parable of the sheep and the goats, for example, Jesus says that we have an obligation to the “least of these” among us: the sick, the hungry, the imprisoned.

But one wonders whether we are actually fulfilling that obligation. The “least favored” includes a growing number of unemployed, disenfranchised, imprisoned and indebted people. Unemployment hovers around 10% (15% here in Fresno County). Twenty percent of American homeowners are underwater in their mortgages (closer to 45% here in Fresno). The median student loan debt for recent college graduates is $20,000 – without good job prospects. And 1 in 100 adults are in prison – the highest incarceration rate in the world.

Statistics such as these remind us that we are not improving the long-term expectations of the least favored. And this is what is fueling the resentment of the “Occupy” movement.

The Occupy protesters have not offered much in terms of concrete policy initiatives. It is not clear what we should do to promote fairness in a dysfunctional economy. But first we should get clear about our shared conception of justice. The Occupy movement is reminding us of the basic idea of fairness. This is not the only principle of justice: liberty matters too. But it is important to focus our concern on the “least” among us.