Tuesday, July 13, 2010


I got to thinking about apologies today. What are they? What are they good for? It seems to me that an apology is a way of accepting blame. And blame, it seems to me, is a combination of causal responsibility and moral failing. In other words if you rearend somebody because of their error, you may have caused the accident, but they are to blame. But if you rearend them because of your error, you are to blame.

But what is this "blame" we throw around? Where is this moral failing? I honestly can't see it anymore. All I see is causation. Causation by stupidity, impulsiveness, mental illness, or something else ... but only causation.

Without blame.

And if there is no blame, can there be any apology? I don't think so. I think an apology without blame means nothing at all.

So I'm going to stop asking for apologies. I may stop giving them. Instead, causation. We'll see how that works.

Wednesday, July 7, 2010

should and could

My last post got me thinking about exactly what the difference between "should" and "could" is.

Both of them, of course, imply a difference between the current state of affairs and some alternative state of affairs. It "is" this way, but it "Could/Should" be some different way.

Consequently, they both assume a few more things -- first, that some alternate state of affairs is possible. Second, that some act of will could change the current state of affairs to the alternate. Finally, that the alternate is somehow better than the actual.

That said, the two words describe very different relationships between the actual and the alternative.

"Should" implies a failure to live up to a standard. "Could" implies an opportunity to improve, regardless of any standard. Thus, you SHOULD go to college so you're not a bum, vs. you COULD go to college so you could make more money.

So where does "Should" come from? I think it comes down to a logical error. When we say "should," we really mean "I or someone else want you to, and you're existential value depends on living up to the wants of that person."

Both parts of that equation are essential to a "should."

If I just want you to do something but your value doesn't depend on meeting my wants, then I don't say you SHOULD do something. I tell you I would like you to, and ask you if you would.

If your existential value depends on meeting my wants but I don't want you to do something, then of course there's no should at all.

And all this is not to say my wants are inherently illegitimate. I may WANT you not to waste your life away on crack. Nothing wrong with that.

The danger in the equation, however, lies in the second element. The implied premise that your value -- your "okayness" depends on living up to my standards.

What arrogance. What foolishness to say that if you fail to live up to what i want you to do, you are somehow less valuable than you otherwise would be. What fallacy to project my values on someone else. What utter nonsense.

And that's the fundamental horror of "should." It places the "Shouldee" under the "Shoulder" in value and power. It is inherently coercive and controlling.

Could, on the otherwise, is composed of a completely different scenario. Could is essentially "You would benefit yourself if you did X." It doesn't matter what I want. And you are no less valuable for having done what I wanted or not. It only says "You could benefit if you did X."

Thus, you would make more money if you got educated. You would be healthier if you exercised and ate better. You would be happier at home if you were kind and supportive to your family. Simply put, benefit yourself.

I believe in "Could."

guilt and faith

I got to thinking about guilt and faith today.

Guilt I'll define as the cognitive dissonance we feel when we perceive a gap between what we "are" and what we "should be."

Faith I'll define as the rush of joy we feel when we perceive an opportunity to rise from what we "are" to what we "could be."

Let me unpack those two concepts a little bit. Guilt is pain. Faith is pleasure. Guilt is finding yourself at the bottom of the well, seeing the sun out of reach. Faith is finding yourself on the ground, and finding a tree to climb. Guilt is the difference between -5 and 0. Faith is the difference between 0 and +5.

Now where do these two feelings come from?

Guilt, I argue, is a form of external control imposed on us from outside. The "Should," after all, has to come from somewhere. Where does it come from? Rarely if ever from us. Usually from parents, preachers, politicians, friends, teachers, and activists. Somebody has to tell us what we "should be."

Why do they tell us this? Is it because we actually SHOULD BE something?

That's an interesting question. Because "Should" depends on a deeper question -- should, FOR WHAT? Should, so God will not send us to hell. Should, so we will not be mocked. Should, so our parents will not turn their backs on us. Should must be for something, and it always seems to be something outside.

The "Could" of faith, however, doesn't have an external purpose. It has an internal one -- the pleasure of being better, stronger, faster. The joy of more power, of more freedom, of more love. It has an internal purpose. And because of that, it cannot be used to exploit us. Rather, because it comes from inside us, it only serves to better us.

Now guilt, of course, is a form of pain. It burns inside us. In extreme cases, it can physically hurt. And as living, breathing, rational organisms, we naturally shrink from pain.

So what do we do with guilt?

Well, since guilt is the gap between what we are and what we should be, what mental tricks can we play with ourselves to close the gap?

Well it seems to me there are two requirements for feeling guilt --

One, you need to have the self esteem to think you "Could" be what you "should" be -- otherwise when people tell you you're bad, you say, "Yes, of course, I know, so what."

Two, you have to care about their standard. If someone calls you a bad person because you fail to live up to their standard, but you don't care about their opinion or their standard, you feel no guilt.

The way I see it, we have four options:
1) We can keep our self-esteem intact while continuing to accept their standard, and become what they require us to be. These are the conformists who live up to society's standards. No guilt because they meet the standards.

2) We can lose our self-esteem while continuing to accept their standard, and become what they say is bad. e.g. Eminem's lyric, "I am whatever you say I am." These are the rebels who accept without question what society says is good, but then place themselves in opposition to it, as a "bad kid." No guilt because they "just can't be good."

3) We can lose both our self-esteem and their standard, and live a life of utter chaos.

4) We can maintain our self esteem while rejecting their standard. These typically invent their own, new moral codes -- which may or may not be in accord with Reality.

None of these responses, of course, is truly desirable. The first leaves others in control of your life and values. The second and third are miserable lives of low self-esteem and rebellion. The last is risky, as one invents one's own standards. Yet these are the only four options we are left with to reduce the pain of guilt, when guilt is used in an effort to control us.

Faith, on the other hand, doesn't raise these issues. It doesn't compare us with what we "should be" -- it points to what we "could be," and shows us the advantages thereof. You don't go to college because "If you don't you're a slacker." You go to college because "Knowledge and wisdom are power." You don't refrain from stealing because "only bad people steal." You refrain from stealing because it's risky, and earning wealth is much more secure and pleasurable.

The difference here is much more significant than mere "glass half full or half empty." The difference is fundamental, because there is no pain to shrink from in faith. There is nothing to hide from. You can acknowledge what you are, and know what you could be, without pain. Without cognitive dissonance. You are free to acknowledge the truth about yourself, and to ponder what you could do better.

I choose faith.

Monday, July 5, 2010

defending the guilty

in criminal defense, you basically have four categories of clients:

1) People who are not guilty, and the government cannot convince a jury they are.
2) People who are not guilty, but the government can convince a jury they are.
3) People who are guilty, and the government can prove it.
4) People who are guilty, and the government cannot prove it.

Each of these categories needs to be treated differently.

Categories 1-3 are pretty straight forward.

1) If a guy is innocent and the government can't prove they're guilty, you litigate and win.

2) If a guy is innocent but the government can convince a jury they're guilty, you investigate and fight like the dickens to allow the truth to come out in court, then litigate and win.

3) If a guy is guilty and the government can prove it, you convince him to plea guilty and say sorry.

4) It's the last category -- guilty people that the government cannot prove guilty -- that gets people all tripped up. "How can you defend guilty people!?"

Before answering that question, however, we need to dig into the assumptions underlying the question itself.

The key assumption, I think, is that "If a guilty person isn't punished for his crimes, he has gotten away with them -- and this is unjust."

This only makes sense of we assume two things:

First, that governmental punishment is the only legitimate and meaningful source of punishment;
Second, that crimes OUGHT to be punished by government.

I don't think either of those is necessarily true. Consider a man who slaps his wife, and his wife leaves him, but never reports the offense to the police, so he is never punished by government. But of course he loses his wife. He has technically violated "the law," and not been punished by government. But he has been punished. He has received the natural and normal consequences of his actions -- the loss of his wife. And would it necessarily be more just for the governmen to step in and slap him on the wrist for this offense? No. It is best, I submit, for the issue to be addressed between the two of them directly.

There are many other cases where a "crime" need not be punished by government. An insane man attacks a psych ward employee in a fit of madness, and kills him. Punishment will serve no purpose, as the person lacks the mental resources to "learn from his mistakes." Rather, the "right thing to do" is not to punish, but treat the person, and keep him in circumstances where he will not hurt another.

Seems to me there are many other cases where the violation of a law need not be punished by government in order to be adequately addressed. Many sins, after all, are their own punishments.

So let us conclude that there is not necessarily a violation of the deep moral law if a person commits a crime and is not punished by government. Rather, let us conclude that government should only punish crime where punishment is justified and useful under the circumstances.

So then, what is the justification of punishment?

The American system is premised on the idea that punishment is only justified if the government has met its burden of proof. NOT merely that a person is guilty -- but that the government has PROVEN a person is guilty.

And who is to decide that?

The accused cannot be relied on, for obvious reasons. Sometimes they may falsely deny a crime because they want to avoid punishment. Sometimes they may falsely admit to a crime to protect someone close to them, or because of mental infirmity. And people do falsely admit to crimes. All the time.

The government cannot be relied on, also for obvious reasons. Unless the government is given a check and balance, it can -- and will -- exercise arbitrary punitive power, to the detriment of individual rights and the integrity and predictability of society of a whole.

So who is to be relied on?

The evidence, weighed out and balanced in court.

And how is this evidence to be weighed? Well, that's determined by the system. And the rules of the game say that defendants have a legal and moral right to plead not guilty, even if they are.


I think it's for the best of the system. Because again, just because I'm guilty doesn't mean the government should be able to punish me. The government needs to play by its own rules if it wants to punish me -- and one of those rules is getting the evidence together and convincing a group of people that i did what they say i did. That's how the system works.

So if the system is designed to work that way; and if the system says I have the legal and moral right to plead not guilty even if I am ... and that the government is responsible for proving I'm guilty in front of detached jurors ... then why shouldn't I?

And this brings us back to the first point. If the government does not punish a crime, that may or may not be the right outcome, depending on the circumstances. The rules say that the government has to put together case enough to prove I'm guilty -- evidence enough to convince people who know nothing about me that I did what they say I did.

If they can't do that, therefore, they should not punish me.

And that's what it comes down to. If I defend a guilty man and the government fails to convince the jury that he's guilty, the government does not punish him. But:

1) That doesn't mean he gets away with it. As discussed before, there are many ways we can be punished for our actions that don't involve governmental action. Sometimes (though certainly not always), those punishments are actually more effective than the governmental action itself.

2) The government has set the rules of the game. They've decided to only punish people if they can prove it. If they can't prove it, they can't punish. Regardless of guilt or innocence. Their rules. I see no problem playing by their rules in deciding whether they get to punish somebody.

Why should I apply a higher standard -- a standard that treats the government as God, and their punishment as the only true punishment -- when the government doesn't even assume that level of arrogance?