Notes

In my last post on vigilantism, I wrote this:

The problem is how to answer the moral question of whether vigilantism—taking the law into your own hands—is justified when there are no government enforcers of the law. But if law and government have no separate existence, so that law has no determinate moral content outside of a governed society, then “when the government has failed to enforce the law” might by synonymous with “when the law has ceased to exist.”

Since I was thoroughly out of my depth, that post came to no definitive conclusion and I kept thinking and reading on this problem. A while ago, I came across an illuminating passage from The Concept of Law by H.L.A. Hart, which I have been reading off and on for about a year. This passage doesn’t answer the questions that beset me in the last post, but it puts them in a different light. In an earlier part of the book, Hart criticized the theory of law as “coercive orders.” This passage is part of a larger section continuing the criticism of that theory:

Let us recall the gunman situation. A orders B to hand over his money and threatens to shoot him if he does not comply. According to the theory of coercive orders this situation illustrates the notion of obligation or duty in general. Legal obligation is to be found in this situation writ large; A must be the sovereign habitually obeyed and the orders must be general, prescribing courses of conduct not single actions. The plausibility of the claim that the gunman situation displays the meaning of obligation lies in the fact that it is certainly one in which we would say that B, if he obeyed, was ‘obliged’ to hand over his money. It is, however, equally certain that we should misdescribe the situation if we said, on these facts, that B ‘had an obligation’ or a ‘duty’ to hand over the money. So from the start it is clear that we need something else for an understanding of the idea of obligation. There is a difference, yet to be explained, between the assertion that someone was obliged to do something and the assertion that he had an obligation to do it. The first is often a statement about the beliefs and motives with which an action is done: B was obliged to hand over his money may simply mean, as it does in the gunman case, that he believed that some harm or other unpleasant consequences would befall him if he did not hand it over and he handed it over to avoid these consequences. In such cases the prospect of what would happen to the agent if he disobeyed has rendered something he would otherwise have preferred to have done (keep the money) less eligible.

(Hart, The Concept of Law 82 (2d ed. 1994).) Hart then addressed the individual psychological aspect of coercive-order theory by observing that when we talk about legal obligations, we mean some kind of duty that persists even when we are outside the reach of actual coercion:

If it were true that the statement that a person had an obligation meant that he was likely to suffer in the event of disobedience, it would be a contradiction to say that he had an obligation, e.g. to report for military service but that, owing to the fact that he had escaped from the jurisdiction, or had successfully bribed the police or the court, there was not the slightest chance of his being caught or made to suffer. In fact, there is no contradiction in saying this, and such statements are often made and understood.

(Hart, at 84.)

Even if law is not the result of coercion, government still appears to be a means of coercion. Let’s imagine that B, the obligated person in Hart’s example, is some kind of lawbreaker, but he is beyond the will or the jurisdiction of the government charged with enforcing the law, and A, the gunman, is a vigilante. Can A step into the shoes of the government? That example expresses what I thought was the scope of the vigilantism resolution, before thinking about it too much. Here is a harder question: How do we know that A, by stepping into coercive shoes, is accurately enforcing the will of the government? This raises the problem of interpretation. What if A is enforcing his own preferred interpretation of the obligations apparently imposed on B, and not the actual obligation imposed on B?

Obviously, there are both easy cases and hard cases. But even then, the person with the inferior position in an apparently easy case will often argue that the situation actually presents a hard case, where the result should be the counterintuitive one—i.e., the person with the apparently inferior position should win. Whether that argument does or should work will depend on your legal philosophy. The next level of abstraction, if you’re interested, would be to express skepticism that A can ever have the expertise or the authority to decide whether he is experiencing a hard or an easy case.

But the problem of interpretation in general leads me to questions about the nature of a society like ours, where we have a class of professionals, elected officials, and scholars whose function is to make and interpret law. To attain true and full justification, would a vigilante need a lawyer-Cyrano, whispering interpretive prompts from the sidelines? Or is every citizen empowered to interpret the law to his or her own satisfaction and thus receive excuse from the consequences his or her conduct would otherwise engender? Obviously not all the time, or “law” would be a sham. But some of the time? And which “some”?

When we say that a vigilante “takes the law into his or her own hands,” I assume we mean that a vigilante engages in conduct that, but for the excuse based on justified vigilantism, would itself be a violation of the law. The gunman in Hart’s example is almost certainly committing the crime of assault. But in my example, where A is recast as a vigilante, and B as a lawbreaker who would have escaped enforcement if not for A, both parties appear to be in violation of the law—except A, by stepping into the shoes of the government enforcer, is excused from liability just as the government would be.

Of course, the question of whether an ordinary citizen can or should be able to interpret the law to justify his or her own conduct might itself be a sham. Everyone knows that when someone acts contrary to the law, another someone will probably file a lawsuit, and the professionals will be called into action. The lawyers will evaluate the situation and determine to their own satisfaction whether any justification exists. If their views are thoroughly divergent and the economic circumstances warrant the gamble of a trial, the lawyers and their clients will prevail upon a judge to interpret the validity of the vigilante’s interpretation.

From a practical standpoint, then we might say that no, ordinary citizens can never determine for themselves whether their conduct is justified vigilantism. The question, if there is one, will always go to the professionals. But that doesn’t answer the philosophical question, which is probably much more interesting to debaters of the vigilantism resolution.

Approaching the problem through the gunman example may just be another way of posing the questions raised in my last post on vigilantism, but it brings them into a different analytical realm. If the question is simply whether the vigilante has correctly discerned a legitimate need for enforcement by coercion, and has applied an acceptable amount of force, then coming up with a convincing answer may take no more than a trip to the law library—unless you’re skeptical that a vigilante can ever correctly discern a legitimate need for enforcement by coercion. But if an act of vigilantism automatically implicates questions about the viability of law, the answer will probably be much harder to find.

Again, however, I am beyond what I can do with the time available to me and the preparation provided by my reading and thinking in that time. And I’m still thinking about “[t]he matter of justification within or without the law,” which Jim Anderson noted as one of the more interesting questions raised in my first post on vigilantism.

In the New York Times today, David Blankenhorn and Jonathan Roach propose a “compromise” on gay marriage:

Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. 

No, sorry, that’s ridiculous. What is this “religious conscience”? As if any other kind of conscience is not as important? I say no more breaks for religious people. You want to have an opinion? You state it, and you fight for it, and you back it up with solid reasoning—but the laws will have to apply to you just the same as they apply to everybody else. Tax laws, conscription laws, marriage laws, everything. If we’re going to have exemptions for people who cannot in good conscience follow the laws of the land, then the only people who receive those exemptions should be the ones who can articulate reasonable grounds for their conscientious objection. And that should be an extremely high standard.

If you want to live in a society but following the same laws that apply to everyone else will so aggrieve you that you simply must be exempted from those laws, then one of three things must be true: (1) you have serious mental health problems; (2) a society ruled by law is impossible unless everyone agrees on everything; or (3) the laws are unjust and unfair and shouldn’t apply to anyone. If the first one is true, then you should exit from the public discourse and visit a mental health professional. If the second one is true, then let’s just stop talking about laws and admit that what we call “civil society” is really just an all-out, perpetual ideological war. If the third one is true, then let’s use our political processes to change the laws.

The better solution to the gay marriage issue is just to remove marriage from the domain of the government. Stop doling out legal benefits to people who qualify to carry the label of “married,” and let private citizens enter their own private domestic arrangements as they please. Enforce them like any other contractual arrangement. You don’t like the way other people arrange their private affairs? Too damn bad. You want to offer certain benefits to your employees’ significant others? Then either let your employees define who those significant others are on their own terms, or don’t offer those benefits. Simple. Easy. Clean. Just another business transaction.

Stop trying to push people around into your little model of the ideal domestic situation by employing the power and the money of the government to act as a carrot and a stick. Right now I’m sitting at my desk in my home office. There’s a window in front of me. I can see the two houses across the street. What’s happening in there? Are they having consensual sex with their siblings? Swing parties? Are they allowing their children to watch pornographic movies or play violent video games? I don’t know, I don’t care, and I cannot, for the life of me, imagine how any consensual arrangements, conduct, or transactions occurring in my neighbors’ homes has any adverse effect on anything that matters to me in my life—or why it should matter to me at all.

That vast swaths of our population, if seated in my position, would make themselves ill with worry over how their neighbors arrange their affairs would be comic and hilarious were it not for their dogged persistence in transforming that unhealthy obsession with the lives of others into political action and the force of law. We don’t need a “compromise” with those people; we need those people to grow up, live their own lives, and help us create a public discourse on the issues that really matter.

After checking out the story about the Oscar-nominated scores that I wrote about in my last post, stumbled onto another NPR story about movies. This one is about Christian movies. So I read the story, and I watched the two clips they had, one from Fireproof and another from The Widow’s Might. Each was only a couple minutes long, but it was hard to sit through them. They were pretty bad.

An easy criticism of the clip from Fireproof would be that it’s just insufferably heavy-handed with the preachy parts. But that doesn’t really explain why it seemed so utterly terrible. Lots of movies are heavy-handed, and lots of them don’t work. But some of them do. I thought Milk was heavy-handed, but it worked because the characters portrayed in the film were compelling people. They seemed real and messy. More than that, however, they shared a struggle that almost everyone can understand: wanting to be recognized and accepted as participants in society despite our differences.

The struggle in Fireproof, at least the one apparent in the clip at NPR’s website, looks shallow and tinny to me. How do you deal with a spouse who doesn’t appreciate you? Sure, that’s normal, I guess. But how did that character end up marrying somebody who didn’t appreciate him? And why is he such a loser that he thinks washing the car, changing the oil, doing the dishes, and cleaning the house should win him so many points? Why isn’t he already doing those things? When you marry somebody, you’re a partner in the household, not a tenant. I guess that’s a normal problem, too—we see it everywhere. But Christians seem especially poor at vetting their potential spouses and understanding what their relationships should include. That’s probably why they’re constantly having to watch movies like this, go to marriage retreats, buy books on how to be a decent person, and so on. They’re so worked up by guilt and social pressure and sexual repression, and they’re so intent on cultivating a relationship with a deity, so much so that they tend to be absolutely piss-poor at regular old human-to-human relationships—which, by the way, for fans of Pascal’s Wager, are completely, provably unavoidable—I have a hard time buying into the struggle that results when, after a few years of marriage, they suddenly wake up and realize the pickle they’re in.

I watch that clip and I want to grab Kirk Cameron’s character by the lapels (if he had any) and yell, “You idiot! You got yourself into this mess with your infantile outlook! I have absolutely no sympathy for you, and I hope your wife leaves you and finds a better man!” (And not just because I’m a family law attorney.) When a movie makes me feel that way, when it thoroughly undercuts any sense of identification with its characters, I have no interest in watching it. That so many Christians are so hyped up about Fireproof is just a signal of how screwed up they are.

It’s easier to criticize The Widow’s Might. That one just looks and sounds amateurish. It’s adequate but not engaging. It looks about as good as a high school musical with an outdoor set. Even so, one of the people quoted in the NPR story called it “awesome.” Sure, maybe, if you’ve never seen a really great movie.

Christians have every right to be offended by whatever they see in movies or other forms of popular culture. And they have every right to make their own movies. But when the rest of us look at their output and its popularity within their subculture, we have every right to be concerned about the mental and social health of people who think this is great art, or even great entertainment.

Every year I look forward to the Weekend Edition Sunday on NPR when Andy Trudeau talks about the latest group of Oscar-nominated film scores. On the docket this year are the scores for The Curious Case of Benjamin Button, Defiance, Milk, Slumdog Millionaire, and Wall•E. Trudeau thinks Benjamin Button should be the winner, but my money is on Danny Elfman’s score for Milk. Listen to the track called “Harvey’s Theme” at the link above. That’s classic movie music. It’s the kind of thing that makes me want to head down to the cinema right now. And it worked extraordinarily well with the movie. “Harvey’s Theme” has that broad, Copland-esque “Americana” feel. Set against the story of people who are still treated like less than citizens, that broadness lent the movie a sense of embrace and inclusion: you are one of us, too.

And, having seen quite a few movies this year, I have to say that if the Best Picture Oscar goes to the film that demonstrates the most skill in the art of movie-making, my pick for that award would also be Milk. As a straight guy with hard-to-define political views, a strong disdain for political “activism,” and a pretty low view of Sean Penn, I was surprised to find that the story of Harvey Milk as portrayed in the film was compelling, emotionally evocative, and technically brilliant—the way they wove historical footage into the scenes shot for the movie was pretty impressive.

Facebook is creating its own “Bill of Rights and Responsibilities.” Sort of like the proposed airline passengers’ bill of rights, I guess, but they’re not trying to get it enacted by Congress—it would be part of the direct relationship between Facebook and its users. Or should they be called members?

In my view, the really interesting thing here is that bills of rights have traditionally been established to protect people from their governments. Of course, people have long used private contracts to establish their rights and duties between each other, but to my knowledge they don’t usually use the term “bill of rights.” Does the use of that term by Facebook signal another step down the road to a post-national world? Do Facebook users think of themselves as members in a social network, as citizens of a community that is governed by a corporation? Or is Facebook just cashing in on our special emotional attachment to the phrase “bill of rights” in determining its terms of service?

Another interesting aspect of what Facebook is doing is its call for input from Facebook users. Facebook, Inc., is a privately owned corporation, so users can’t obtain a share in the company by purchasing stock. Does Facebook have any obligation to take seriously the input provided by its users? In a democratically-constituted nation, a Bill of Rights enforceable against the government, at least theoretically, derives its power from the sovereignty of “the people,” or the citizens who, directly or indirectly, voted for its enactment.

But do Facebook users have any kind of “sovereignty” to be asserted against Facebook, Inc.? From what I can tell, the only real authority that Facebook users can assert against Facebook, Inc., is a single, binary decision: use the service or not. Is that enough? It reminds me of union organizing. What if Facebook users decided to “go on strike” against Facebook, to put on the pressure for terms of the bill of rights? With fewer people looking at ads, and advertisers threatening to bail, could Facebook, Inc., find itself compelled to capitulate? Would that give greater legal heft to the proposed bill of rights?

And what about Facebook’s ability to change the terms of service at will? Would that apply to the proposed bill of rights? Or would some form of entrenchment be enacted? How would that affect Facebook’s ability to do business?

These are the kinds of questions that occurred to me in law schoool, when I was taking classes on constitutional law and business associations at the same time. In some ways, constituting a nation and constituting a corporation are similar endeavors. In other ways, they are very different. But in a world where corporations rival nations in their scope and ability to affect our lives, I wonder how we can deal fairly and consistently with ideas like “rights.”

So here’s another argument for legalizing marijuana:

A Utah man bought a used SUV and immediately had to take the old car to a mechanic. He didn’t understand why the gas gage always read half-full. The mechanic suggested that maybe it was the 35 pounds of marijuana that filled the other half of the tank. The pot was plastic-wrapped and added $35,000 to the street value of the car.

Really? You mean we used our criminal statutes to take $35,000 of value off the street in a single police transaction? While we’re in an economic funk and wringing our hands about job losses? De-criminalizing marijuana should have been part of the stimulus package. Think of all the assets that would immediately become a legitimate part of the economy, and all the jobs it would create.

If you ever wondered how to get from the estate tax to epistemology, Professor Buchanan over at Dorf on Law can lead the way. Good stuff there.

About a week and a half ago, Jim at decorabilia asked me if I was interested in writing something about the 2009 March/April topic for Lincoln-Douglas debate from the National Forensics League. Here is the topic:

Resolved: Vigilantism is justified when the government has failed to enforce the law.

Thinking about that topic has led me into some pretty deep water, and I am not yet ready to draft a full discussion. The resolution seems straightforward at first, but the major concepts at play are huge: vigilantism, justification, government, and law. Defining those concepts is a big task, let alone discussing their interaction in the resolution. When I sat down to sketch out an essay, my thoughts quickly veered into (for me) uncharted waters. Here is where everything dropped off the map:

If law and government are independent, then you can have one without the other: law without government, or government without law. If we assume some broad definitions for law and government—that law is an ordered system of behavioral norms and government is an exercise of power over others—then government without law would be a capricious exercise of power and law without government would produce a society where behavioral norms are followed so thoroughly that no enforcement is needed. In other words, if law and government can each exist independently and wholly without the other, then history should reveal some societies that are irrational and capricious dictatorships and some where hierarchy is utterly pointless because every member of the society already knows how to behave, and behaves that way. But no society looks like either of those. So what happens if we keep those definitions of law and government, but retreat toward the center of the spectrum, to societies with both law and government? Do we come to anything that looks like reality? Maybe—but when law and government interact, do they maintain separate but interrelated existences, or do they coalesce into unity?

The problem is not to discover what actually exists—we can experience that in our everyday lives, see it in the news, and read about it in history. The problem is how to answer the moral question of whether vigilantism—taking the law into your own hands—is justified when there are no government enforcers of the law. But if law and government have no separate existence, so that law has no determinate moral content outside of a governed society, then “when the government has failed to enforce the law” might by synonymous with “when the law has ceased to exist.” (This also raises further questions about the scope of the resolution: Are we talking about a failure to enforce a law across the board, or a failure to enforce a law within a subset of the entire jurisdiction? Does the difference matter for the discussion?) And if we are talking about “when the law has ceased to exist,” where do we derive our justification?

The reality answer seems straightforward: we just know if something is justified. And there are probably good biological and sociological reasons for that. But having an inkling of those reasons, I am still not clear on how they fit with the philosophical and legal theories that drive our public discourse, our social narratives, and our political ideologies. If we are going to assert certain political theories as the basis for our “way of life,” then we ought to have a convincing and satisfying explanation for them, so that the reality answer fits with the theory answer. I have not yet seen that explanation.

After witnessing the sometimes-rancorous debate over the stimulus bill that the United States Congress recently approved, and how the Democrats and Republicans alike seemed utterly incapable of finding an argumentative bridge between their economic theories, I am more convinced than ever that investigations of legal, political, and economic theories are not just intellectual masturbation. If we hope to have a society that coheres, persists, and serves our needs, then we need something more than just ideological bickering.

And if we’re going to make moral assessments or potential justifications of conduct that, in reality, actually occurs but which, in theory, is hard to define, then we need some solid ground. Especially if we are going to impose penalties where there is no justification for certain conduct.

At any rate, I need to do some more reading.

I called Comcast to cancel my service today. Their phone number has a menu, with an option to speak with someone specifically for the purpose of discontinuing your service. I would think, “Oh, a menu. That means when I get to a person, they will know why I am calling.” But apparently not so at Comcast. The goon who answered the phone asked, “What can I do for you today?”

That leaves two possibilities, from what I can tell. Either their menu is completely functionless, or they are playing a psychological game with people who want to cancel their service—like maybe after spending 12 minutes on hold listening to their absolutely terrible music that sounded like it was being streamed over a 28.8k modem, I had changed my mind and wanted to stick with these losers and their lousy service? Or maybe they think I am so weak-minded that if I have to say to a real, live person that I want to cancel my service, I will chicken out? So are they evil, insulting, or just stupid?

Maybe some wanker from that “Comcast Cares” group will find this blog post and comment. Last time I wrote about them, here is what Melissa Mendoza of Comcast Customer Connect wrote:

We agree with you. It would be much better, for us and for our customers, to get things right the first time. What our team does is a small part of Comcast’s overall effort to improve the quality of service across the board for our customers throughout the nation.

Below I will reproduce my response to her, which I doubt she bothered to come back and read. So to whichever Comcast employee stumbles into this post, read this before commenting:

That’s all fine and dandy, noble intentions and all, but your efforts are misdirected. When I know there is what appears to be a rogue customer support group within the Comcast organization, it doesn’t really matter to me that you manage to fix problems fast, or that you can work out vaguely compensatory deals like discounts on monthly charges. Instead, I see a deeply fractured organization, something that is far more troubling than just a big, bumbling corporation that screws up. To me, that means that the moment I can get fast internet service from someone else, like AT&T or whomever, then I am still jumping ship, even though you sent people out to fix my problem and worked out a lower monthly charge.

When I go to a retail store and they make good by giving me something free to compensate for their mistake, I know that they’re just doing what’s right and fixing a problem that they caused. But if I knew that they hired sub-par employees and trained them poorly, so that there were problems with lots and lots of customers, only to find some othergroup of employees standing outside the doors to fix all those problems, that would tell me they have problems so deep that I should be shopping elsewhere. How much deeper do those problems go?

The problem with your team and Comcast’s alleged “overall effort” is that you are not going to the source of the problem. Why aren’t you dispatching your people to crack the whip on all the morons who answer the phones at your customer support number? (And I have no compunction for calling them morons. It’s not technical support when the only thing they can do is tell me to restart my equipment. That’s just an insult to the intelligence of the customers.) Why aren’t you exerting your efforts to ensure that your on-site technicians are trained to do something other than swap out cables and boxes, or get on the phone with their supervisors? That’s all I’ve ever seen the ordinary techs do. It’s painful to watch them. They’re just about worthless. But Comcast pays them, and they are slow and inefficient, and that meansmy cost, as the consumer, is driven up.

You people shouldn’t be out there fostering this sense of dissent within Comcast. You should be taking over the inner-workings of the company. Start a better training program. Here’s an idea. Have your people build a fake neighborhood. Wire it up with Comcast equipment. Then get your trainers to insert defects of all kinds, physical, digital, whatever. Send in your newly hired technicians to diagnose the problems. If they can’t figure out the problem and fix it within a reasonable time don’t send them out to my house!

But this thing of trolling the blogosphere and looking for discontented customers and handing out that email address, it’s silly. It doesn’t tell me that Comcast cares. It tells me that the vast majority of Comcast doesn’t give a rat’s ass, and that anything good that comes out of Comcast only comes through some internal resistance movement. That’s insane.

So I don’t really care that you agree with me because your actions amount to, from what I can tell, enabling Comcast to fail perpetually. You’re like the people who don’t want their friends to be harmed by their alcoholism, so you give them rides everywhere, thus enabling them to stay drunk and removing any incentive to sober up and take some responsibility for their actions.

Stop treating the symptoms and fix the source.

Have a nice day, Comcast.

I have a second blog now: Family Law Litigation. Do check it out, if you have the time. I would appreciate some feedback, and advice for future content.

Just remember a couple things: first, it’s hosted by the firm where I work, so I need to maintain a more consistently professional tone over there; and second, just as on this blog, I can’t give legal advice there, so no specific questions if the answers would be legal advice. But if there are general things you want to know about family law or the legal system, let me know. My goal is build a resource to help people outside the legal profession understand family law better. And if you can help me understand what people outside the legal profession want to know, it keeps me rooted in reality, which I hope will improve my practice.

Thanks.