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On Casuistry

philosophynow.org

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Re: On Casuistry

#31

Post by pdonis »

voldacar wrote: post #27
bilbo0s wrote: post #24

Earlier quoted context omitted.

The unpleasant truth is that if you live in a community whose members are not good people, you won't have good outcomes Again, the quandary is that if you live in a community whose members are "good" people, you also won't have good outcomes. That's the nature of people. They are not "bad" or "good". They are just humans. Their actions are sometimes "bad", sometimes "good", but rarely are their actions consistently t…

There is definitely such a thing as moral virtue or character. Maybe "bad" and "good" are too simplistic but there are definitely more virtuous and less virtuous humans

> There is definitely such a thing as moral virtue or character.

Yes, but those are subjective as well; there's no objective test for who is virtuous and who is not. Everyone has to judge that for themselves.

Re: On Casuistry

#32

Post by pdonis »

bilbo0s wrote: post #24
pdonis wrote: post #9

Earlier quoted context omitted.

> To think that this turns out well displays either staggering ignorance or the naïvete of an infant. Unfortunately, so does thinking that the alternative, trying to have governments spell out everything in advance and dictate outcomes from the top down without being able to take into account the circumstances of individual cases, turns out well. The unpleasant truth is that if you live in a community whose members a…

The unpleasant truth is that if you live in a community whose members are not good people, you won't have good outcomes Again, the quandary is that if you live in a community whose members are "good" people, you also won't have good outcomes. That's the nature of people. They are not "bad" or "good". They are just humans. Their actions are sometimes "bad", sometimes "good", but rarely are their actions consistently t…

> if you live in a community whose members are "good" people, you also won't have good outcomes

I disagree. Historically there are plenty of examples of communities that have managed to get along for extended periods with reasonably good outcomes. What we humans don't (yet) have a good handle on is how to protect such communities against invasion from outside--other people outside the communities just won't leave them alone, but insist on trying to make them part of some larger social experiment.

Re: On Casuistry

#33

Post by eyelidlessness »

The fact that this article is about “justice” based on “case” and the word “bias” doesn’t appear in the article is a pretty good indication that whatever navel gazing is below the fold is not fit for real world application.

I understand it’s on a philosophy site, but it sets out a pretty bold stance from the outset that is amply contradicted by real case-based law that has been established specifically because bias has repeatedly, systematically poisoned justice.

Re: On Casuistry

#34

Post by eyelidlessness »

pdonis wrote: post #13
atty wrote: post #7

I think one thing that’s very important is that the judicial system needs to be perceived as somewhat “fair” in that the punishment should fit the crime, AND that factors such as race, status, wealth, etc should not bias the outcome. As someone living in the US, it’s quite obvious our system has a lot to be desired in this area, especially when comparing outcomes amongst different ethnicities or wealth classes. But t…

> there is an ideal we reach for that our rules should treat every individual equally regardless of their place in life. Giving judges and juries even more latitude than they have already would completely shatter that. Such a claim might be valid for crimes such as murder, where we would indeed expect sentencing to fit the crime and not to be adjusted for certain individuals because of factors irrelevant to the crime…

“Most” is perhaps an expression of your experience. The actual most that objectively happens is such routine banal minor infraction enforcement and intrusive stops that affect a minority of the population that it’s understandable that you can’t see it or maybe even quantify it but it’s constant and it affects “case based” judgement severely. Many people under this kind of jurisdiction are already facing potential lifetime sentences before they’re adults.

Re: On Casuistry

#35

Post by pdonis »

eyelidlessness wrote: post #34
pdonis wrote: post #13

Earlier quoted context omitted.

> there is an ideal we reach for that our rules should treat every individual equally regardless of their place in life. Giving judges and juries even more latitude than they have already would completely shatter that. Such a claim might be valid for crimes such as murder, where we would indeed expect sentencing to fit the crime and not to be adjusted for certain individuals because of factors irrelevant to the crime…

“Most” is perhaps an expression of your experience. The actual most that objectively happens is such routine banal minor infraction enforcement and intrusive stops that affect a minority of the population that it’s understandable that you can’t see it or maybe even quantify it but it’s constant and it affects “case based” judgement severely. Many people under this kind of jurisdiction are already facing potential lif…

> The actual most that objectively happens is such routine banal minor infraction enforcement and intrusive stops that affect a minority of the population

No, this still isn't "most" of what the legal system deals with. It's a large fraction of what the criminal legal system deals with, but most legal cases are civil, not criminal. That's why I took the trouble to draw the key distinction between those two types of cases.

As far as criminal law is concerned, the way to minimize police harassment of citizens for no good reason is to minimize the things that are crimes. For example, the war on drugs is insane: there is no reason to criminalize mere possession of a drug. Just that one single change would drastically reduce the number of people the police can harass (and just freeing all of the people who are currently in jail for non-violent drug possession would drastically reduce the number of people in jail--and a disproportionate fraction of those would be poor and minorities, exactly the people we want to give more protection from police harassment). But there are many, many other laws on the books that could be eliminated on similar grounds: they criminalize behavior that shouldn't be criminalized and the laws can't possibly be enforced as written, so the end result is to give the police a much larger selection of excuses to harass people when they feel like it.

But this "fix" for criminal law doesn't work by fixing how the system deals with cases that are before it (things like reducing the variation in sentencing); it works by eliminating a huge set of cases altogether--the system no longer even sees them because the system is no longer criminalizing acts that shouldn't be crimes.

The problem is that a similar fix doesn't work for civil cases, precisely because there is no simple way to draw bright lines to separate disputes that should be dealt with by the legal system and disputes that shouldn't.

Re: On Casuistry

#36

Post by _jahh »

chmod600 wrote: post #4

It's easier to get people to agree to a process than a result, so processes make it a lot easier for people to work together. The processes are imperfect and often take on a life of their own, but still tend to be respected, and are generally improved when the outcomes start getting too far from the spirit of fairness. Transparent processes which involve specific laws are much easier to respect than opaque "wise elde…

this is such an important point. A corollary that those who control the process in many ways can control or at least massage the outcome (cf. mitch mcconnell)

Re: On Casuistry

#37

Post by TimTheTinker »

pdonis wrote: post #28
TimTheTinker wrote: post #26

Earlier quoted context omitted.

One doesn’t need to invoke platonic forms to assert that equality and fairness do exist as objective moral values and duties. I agree that applying them in particular cases is inescapably subjective since judges are subject to human limitations. But in doing so, one ought to strive for objectivity as much as possible. A good ruling is good insofar as it was able to preserve, despite the judge’s human limitations, fid…

> One doesn’t need to invoke platonic forms to assert that equality and fairness do exist as objective moral values and duties. No, but one does have to have some objective way to test for them. And there isn't any. Ultimately, every person has to judge for themselves what does and does not count as equality and fairness.

> one does have to have some objective way to test for them

I disagree. Just because a fully objective test is impracticable doesn’t mean the ideal doesn’t exist or shouldn’t be taught or strived toward—or that objective values and duties don’t exist.

Beyond that, appeals courts exist as a check on injustice in lower court rulings. They do try to objectively verify whether a given ruling was just.

Yes, individuals do have to “judge for themselves”, but there are objective standards to apply and evaluate decisions by, even if those standards can only be intuitively defined.

Re: On Casuistry

#38

Post by chmod600 »

_jahh wrote: post #36
chmod600 wrote: post #4

It's easier to get people to agree to a process than a result, so processes make it a lot easier for people to work together. The processes are imperfect and often take on a life of their own, but still tend to be respected, and are generally improved when the outcomes start getting too far from the spirit of fairness. Transparent processes which involve specific laws are much easier to respect than opaque "wise elde…

this is such an important point. A corollary that those who control the process in many ways can control or at least massage the outcome (cf. mitch mcconnell)

The normal way to change the process is by changing the law. It's normally used to improve the process when the process produces too many bad outcomes.

Of course, making law also requires a process, which we should not expect to be perfect. And that process has its own process for being changed, and so on.

Would you run a startup this way? Of course not. But stable, transparent laws are a feature, not a bug, when it comes to things like banking.

Re: On Casuistry

#39

Post by pdonis »

TimTheTinker wrote: post #37
pdonis wrote: post #28

Earlier quoted context omitted.

> One doesn’t need to invoke platonic forms to assert that equality and fairness do exist as objective moral values and duties. No, but one does have to have some objective way to test for them. And there isn't any. Ultimately, every person has to judge for themselves what does and does not count as equality and fairness.

> one does have to have some objective way to test for them I disagree. Just because a fully objective test is impracticable doesn’t mean the ideal doesn’t exist or shouldn’t be taught or strived toward—or that objective values and duties don’t exist. Beyond that, appeals courts exist as a check on injustice in lower court rulings. They do try to objectively verify whether a given ruling was just. Yes, individuals do…

> there are objective standards to apply and evaluate decisions by, even if those standards can only be intuitively defined

To me this is a contradiction in terms: "only intuitively defined" means human intuition, i.e., subjectivity, is involved. I guess we'll just have to disagree.

Re: On Casuistry

#40

Post by pdonis »

TimTheTinker wrote: post #37
pdonis wrote: post #28

Earlier quoted context omitted.

> One doesn’t need to invoke platonic forms to assert that equality and fairness do exist as objective moral values and duties. No, but one does have to have some objective way to test for them. And there isn't any. Ultimately, every person has to judge for themselves what does and does not count as equality and fairness.

> one does have to have some objective way to test for them I disagree. Just because a fully objective test is impracticable doesn’t mean the ideal doesn’t exist or shouldn’t be taught or strived toward—or that objective values and duties don’t exist. Beyond that, appeals courts exist as a check on injustice in lower court rulings. They do try to objectively verify whether a given ruling was just. Yes, individuals do…

> appeals courts exist as a check on injustice in lower court rulings. They do try to objectively verify whether a given ruling was just.

You evidently haven't read many appeals court opinions or looked at the actual rules for when a case can be appealed at all. Those rules have little if anything to do with whether the ruling was just. They mostly have to do with whether particular procedural rules were followed. As for the actual opinions and rulings issued by appeals courts, after reading many of them, the only clear pattern I can see is that judges start out already knowing what result they want and simply find appropriate laws and precedents to justify it; since the body of law and precedents, taken as a whole, is mutually inconsistent, it is easy to find a justification for any position you like.

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