Author Archives: Irfan Khawaja

Law and Disorder: Blame and Redemption in the American Justice System

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A pair of stories in this morning’s New York Times offers an instructive glimpse into the mentality of the officials–judges, prosecutors, police officers–who preside over America’s criminal justice system. And I don’t mean that in a good way. Both stories concern criminal cases in New York–one in Manhattan, the other in Nassau County on Long Island. One describes a miscarriage of justice, the other what seems and probably is a just verdict and just sentence. And yet both reflect poorly on the system and the people who sit at its helm.  The first story concerns the exoneration of the so-called “Central Park Five.” The second concerns (if I can put it this way) a run-of-the-mill murder case.

The headline of the first story tells the tale: “Settlement Approved in ’89 Jogger Case; City Deflects Blame.” Feel free to read the whole thing for  details.

The gist of the story is this: Sometime in 1989, a woman went jogging one evening in Central Park, was viciously raped and beaten there, and left for dead. Suspicion immediately fell on five teenagers, all of them black or Hispanic, who were described in the media back then as “wilding” in the Park around the time that the jogger had been attacked–i.e., “going wild,” and thus presumptively the suspects in the case. (The jogger was white.)

I remember the case, and followed it pretty closely in real time. What I distinctly remember about it is the rhetorical work done by the slang term “wilding” in discourse about the case, an aspect of it now largely forgotten. No one (in the suburbs where I lived and went to school) really knew what “wilding” meant, and no one bothered to ask. What was axiomatic was that the term was an example of the newest urban slang, that everyone ought to know what it meant, that anyone who knew what it meant knew that “if x is wilding, x is a plausible rape suspect,” and that only a white-bread suburban dork would ask for a definition of “wilding” or query inferences in claims about it. Wilding just seemed like the kinda thing that happened in the urban jungle across the river–and to be fair, New York was a more dangerous place in the 80s than it is now–and everyone knew that the kinda thing that happens in urban jungles is the kinda thing characteristically engaged in by idle black and Hispanic youth. From there, it was just a few simple steps to a verdict of guilt. Where you have a rape victim, and you have wilders in custody, you have rapists, and once you have rapists, you convict and sentence them. QED.

It’s hard to recreate the atmospherics of the time: its hysterics, especially its racial hysterics, were sui generis, and all seemed to lead inexorably to the certainty that the Central Park Five were guilty, that the legal system was babying them, and that the law was taking too damn long to find them guilty and sentence them. The indignation expressed for the Central Park Five really felt like something out of E.M. Forster’s Passage to India—like the English reaction to Aziz, the Indian doctor who’s suspected of having raped Adela Quested, the newly-arrived English visitor. (I don’t mean to be implying, by the way, that whites were the only villains and blacks the only victims in the racial atmospherics of the time. It was a complex, sickening dynamic involving both parties. One of the great merits of Forster’s book is that it lays bare the pathologies and complexities involved in racial animosity, undermining the pious common belief in self-evident verities about it without licensing facile moral equivalences, either.)

But I digress. So the Central Park Five were convicted of the rape and the beating. In fact, they confessed to the crime. Even at the time, if I remember correctly (and I may not), there were stray whispers in the press about the possibility that the confessions were coerced, but this conjecture was lost in the hysteria of the moment, and eventually just forgotten altogether in the amnesia that settles in after any case is officially decided. But they did confess, and as a result they each served between seven and thirteen years in prison for the crime.

As the story about the settlement makes clear, it turns out that they were innocent.

In 2002, the convictions were vacated after the office of the Manhattan district attorney, Robert M. Morgenthau, found DNA and other evidence that the woman had been raped and beaten by another person, Matias Reyes.

The Bloomberg administration had fought the [Central Park Five’s] lawsuit, which was filed in 2003; after Mr. de Blasio took office, the city reversed its position.

What I find remarkable about the story, and instructive about our legal system, is this statement, which is part of the settlement:

The City of New York has denied and continues to deny that it and individually named defendants have commited any violations of law or engaged in any wrongful acts concerning or related to any allegations that were or could have been alleged.

Legally speaking, that may all be correct, but in moral terms, it sounds like a lot of incoherent bullshit. How is it possible to coerce confessions out of teenagers, imprison them for years, agree that you imprisoned them for a crime they didn’t commit, spend years disdainfully rejecting the idea that the confessions were invalid, fight their lawsuit, effectively lose the suit, pay a $41 million settlement to settle their claims, but not have done anything wrong?

Two lessons here: (1) Clearly, the gap between legal and moral language, and legal and moral judgments, is a yawning chasm. Even if the City of New York bears no legal liability for what it did, it bears a heavy burden of moral liability, so that if we focus on the legal at the expense of the broader moral issue, we’re completely missing the real significance of the case. (2) Anyone who believes in the legitimacy of government (as opposed to being an anarchist) has to accept that there ought to be some asymmetry between the legal rules that apply to law enforcement officers in the course of doing their jobs, and of ordinary citizens confronting law enforcement as suspects in a given case. The question is what that asymmetry amounts to, and evidently in this case, it amounts to the City’s right never to have to to say that it’s sorry no matter what it’s done, and no matter what, by its actions, it’s implicitly conceding. You don’t have to be an anarchist to think that we can do better than that.

Now consider the second case, “Man Gets Life in Prison for Killing Officer and a Driver.” Strictly speaking, there’s no legal miscarriage of justice here, and not that much of a moral miscarriage, either. The case concerns two murders committed by one Daniel Fuller. The crimes are heinous, and it’s almost certainly the case that Fuller committed them. The evidence isn’t summarized in the article, but it seems to have satisfied the “reasonable doubt” standard, and Fuller himself doesn’t dispute that he committed the murders (and the rest of it: read the article for details). There’s no evidence that he was coerced into acquiescence in the verdict, or coerced at any other stage of the case. Morally speaking, it doesn’t take much acumen to see that Fuller’s acts were evil, and that the man himself is evil. Still, I question the moral right of the judge in the case to say the sorts of things he said to Fuller in court.

“There is absolutely nothing redeemable about you,” Judge Jerald Carter of Nassau County told Mr. Fuller after several of the victims’ relatives, some in tears, stood to extol their loved ones and denounce Mr. Fuller. …

The judge forced Mr. Fuller to look at photos of his victims, including one borrowed from Mr. Facey’s widow. He called Mr. Fuller “despicable you.”

Then he imposed the sentences and said they would be “a prelude to the hell that may await you.”

Since Fuller received a double life sentence, the reference to “the hell that may await you” is a reference to Hell, the supernatural location.

It is possible that there is nothing redeemable about Fuller. It is clear that he is despicable. But is it the place of a criminal court judge to make these assertions in a court of law?

Obviously, court verdicts and sentences are moral judgments of a certain kind. I’m not a legal positivist, so I don’t think that legal interpretation can entirely be divorced from moral judgment. That’s particularly obvious in the criminal context, and perhaps most obvious in the case of sentencing. A judge engaged in sentencing has to make a judgment about what the offender deserves. Sentencing guidelines guide that decision but can’t determine it. Ultimately, part of the judgment is a moral judgment, and it’s up to the judge.

No quarrel there. But sentencing is a specifically legal act, and what the offender deserves has, at some level, to be specified by law. What legal purpose is served by turning a courtroom into an all-purpose forum for moral judgments that go well beyond what the law requires? You can say that an offender deserves a life sentence without describing him as irredeemable. The length of the sentence has nothing to do with irredeemability; it has to do with the moral turpitude of what the offender has done. The one judgment concerns the future, the other concerns the past. They’re different kinds of judgments and nothing ties them together in any obvious way.

Whether they accept this or not, judges are not experts in moral philosophy, counseling psychology, or psychiatry. Their knowledge of human psychology is, at best, anecdotal and sometimes not even that. Most philosophers, psychologists, or psychiatrists would hesitate before pronouncing a verdict of “irredeemability” on someone. A person’s acts may be evil, but since his future lies ahead of him, he may well have the capacity to change his character so as to become a different kind of person. Who could know what the future might bring? What evidence or argument could justify a judge in offering judgments about the future? And what legal purpose is served by doing so?

The judge, we’re told, forced Fuller to look at photos of the victims. In and of itself, I see nothing wrong with that. But was it a formal part of the sentence? If not, is it legitimate for a judge to depart from the sentence in any particular and force the offender to suffer ad hoc punishments simply because doing so expresses the righteous indignation of the moment?

Finally, should a judge who operates under the U.S. Constitution be permitted to make reference to Hell in a court proceeding pertaining to the sentencing of a criminal offender?

I think the answers to my semi-rhetorical questions are fairly obvious. No legal purpose is served by offering judgments about irredeemability, and it’s not even clear what evidence would suffice for such a judgment, much less that judges are equipped to offer it. It’s not legitimate for a judge to add ad hoc punishments over and above the ones actually described in sentencing. And to my mind, a judge who invokes the supernatural in a sentencing proceeding is violating the First Amendment: there is no more obvious “establishment of religion” than the invocation of God’s will and judgment in the sentencing phase of a criminal trial (even when the person invoking God hedges his bets by using the word “may”). First Amendment lawyers may or may not agree with that, but if they disagree, it seems to me that they’re flouting the obvious meaning of the words that constitute our Constitution as its citizens understand it. What they’re defending at that point is specialized sophistry, rather than something recognizable to citizens as constitutional law.

Above all, these cases leave us with a sense of the problematic moral incongruities of our vaunted legal system. Consider the deference accorded to members of the legal profession. Is it really earned? The President of the United States does his work in ordinary civilian clothes. Meanwhile, judges do their work in robes. Why, exactly?

The President is held accountable for virtually every word he utters in public. Is that true of the average judge? I once stood before a judge who had the audacity to tell me that I was guilty of a traffic violation (failing to stop at a stop sign) because he knew the intersection in question “very well,” and “knew” that “no one” stopped at that stop sign–no one, that is, besides him. So he concluded that I hadn’t stopped because I was no different from anyone else in town (besides him). Uh, not exactly a valid argument, your Lordship. Not that one could say that.

The same judge had, twenty minutes earlier, chided a different defendant in a different case for invoking his (the defendant’s) previously spotless driving record as a defense against the charge that he was currently facing. “Your previous driving record is not at issue here, and not a defense against the charges you’re facing here and now,” the judge piously intoned. The blank, hypocritical incoherence of this combination of claims was lost on His Honor, and was not something for which he would ever be called to judgment. Not that one could say that, either.

The kind of loose talk indulged in by my judge is the currency of practically every courtroom in the land, and it happens every day, dozens of times a day. We’re obliged to refer to judges by titles (“Your Honor”), as though they were some kind of self-appointed aristocracy.  But in what way is being a judge more intrinsically honorable a profession than being, say, a janitor? I don’t think it is, and yet: who would think of bowing and scraping before a janitor, and referring to him by title as he mopped the floor? (“Your Honor, I see that you are mopping thine floor; do I have permission to tread the floor and pass?”) Incidentally, academics and physicians have the same disease as judges and lawyers in this respect–we’ve all encountered the person who insists on being called “Doctor So-and-So”–but that’s a different topic and different post.

But take it further back: consider how lawyers get made. As the pre-law advisor at Felician College, every week I get advertisements for law schools inviting students to study law at this or that law school and “change the world.” In seven years of doing the job, and of having to peruse the unbelievably self-congratulatory literature of Law School Admissions (and of having to attend equally self-congratulatory Law School Admissions Forums), I have yet to read a blurb or an article written by a law school admissions officer or law professor that suggests that there are limits–strict moral limits–to what lawyers and judges ought to be allowed to say or do in their cosmic quest to “change the world.”  I always feel like responding: Instead of dreaming of new ways in which you might force people to do your bidding in the name of “justice,” how about recognizing how much harm you’ve done in the world, and thinking about how you might ratchet back the force you wield just a bit? Unfortunately, a message of that sort would fall on deaf ears–whether of law school candidates, law students, law professors, lawyers, or judges. After all, few people go to law school to diminish the power that lawyers have over the rest of us.

But maybe they should start. No one of law-school-level intelligence can really believe the puffery behind law school advertising, so what’s the point in indulging the bad faith involved in going along with it? Anyway, since we live in a regime that professes adherence to limited constitutional government–and professes eternal hostility to aristocracy–it might be a salutary exercise to figure out what those commitments mean for law students, and how to inculcate the next generation of law students in the idea there are limits to observe in the uses of law to effect social change. It might be nice, as well, to ditch the self-conception of lawyers as a kind of democratic aristocracy, and ditch the sense of noblesse oblige often conjoined with that assumption.

It’s a tall order, I realize, but it might prove redemptive for them–assuming that they are redeemable. Of course, unlike Judge Carter of Nassau County Court, I don’t pretend to know about redeemability in advance of the redemption or non-redemption itself. The wisdom I invoke is less cosmic than his: By their fruits ye shall know them. The proof is in the pudding. Etc. Our legal profession might give that homespun wisdom a try. It’d be nice to see some of them descend the Olympian heights they seem to inhabit, and come back down to earth.

Postscript, September 8, 2014: I couldn’t have invented a better postscript to this post than an article in today’s Times, “As Two Men Go Free, A Dogged Ex-Prosecutor Digs In.”

Civilization, Its Enemies, and the Dumbest Conversation about ISIS on the Internet

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Note added, September 3, 2022: To belabor the obvious–for those who need a belaboring–this post was a response to a post on a separate blog, then called Neo-Neocon, now called The New Neo. The original post was posted in 2014; I don’t know whether it still exists. Neo-Neocon was defending the idea of US military involvement in Syria (back in 2014), which I was opposing. A commenter on the original blog post on Neo-Neocon, “blert,” had attacked my views by doing a cursory Google search, finding what he thought were photos of me, mistakenly identifying me with a fashion model with the name “Irfan Khawaja,” and then offering an elaborate confabulation about how I was an out-of-the-closet gay academic jihad blogger (implying, inadvertently, that Irfan Khawaja the fashion model was one, too). Obviously, blert’s whole comment was premised on a series of really stupid, obviously false assumptions and fabrications. That hasn’t deterred people from making some more.

To be absolutely clear: I am not Irfan Khawaja the fashion model, and have never pretended to be. The references to Irfan Khawaja the fashion model below are obviously satirical references to the erroneous identification of us made by the commenter “blert” on Neo-Neocon. If I’m gay, I must be in the closet about it even to myself, and to all of the women I’ve ever married or dated. I know nothing about the sexual orientation of Irfan Khawaja the fashion model, have no interest in knowing, and have never made any assertions about it whatsoever. I don’t mind being called a “blog jihadi,” but I have no comment on whether Irfan Khawaja the fashion model is. I don’t sympathize with ISIS, and have no reason to believe that Irfan Khawaja the fashion model does. I posted his photo in the post to satirize the error of the commenter, blert. As my bio makes clear, I’ve never claimed to be a fashion model. All of the commenters below except Irfan Khawaja the fashion model grasp that I am not Irfan Khawaja the fashion model, and am not claiming to be.

I wouldn’t have to belabor these obvious points if Irfan Khawaja the fashion model hadn’t, eight years after this post was first posted, decided to misread it by identifying my views with blert the commenter, and then attacking me for what blert had said. The ludicrous results of this misreading are now in the comments. As Dwight Eisenhower put it, “There is no final answer to the question ‘How stupid can you get?'” Continue reading →

Reason Papers 36.1 is out

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I’m happy to announce that Reason Papers vol. 36, number 1 (July 2014) is now out, and has been uploaded to the RP website. You can access it in one of two ways. This link will take you to a large PDF of the entire 223 page issue. This link will take you to our Archive page, and to PDFs of individual articles.

There’s plenty of good stuff in there, but in light of events in Ferguson, I think our Waco symposium ended up being unexpectedly topical. In a previous post, I asked this question:

As a historical matter, why have the police become so militarized in the United States? As a normative matter, is there any legitimate reason for militarization?

The Waco incident was a watershed in the militarization of police work in the US, and all four of our Waco items end up dealing in some way with the preceding issue.

Here’s the Table of Contents for the issue:

Editorial–Irfan Khawaja and Carrie-Ann Biondi

Symposium: Robert B. Talisse’s Democracy and Moral Conflict
Précis of Democracy and Moral Conflict —Robert B. Talisse
Comments on Talisse’s Democracy and Moral Conflict —Joseph Biehl
The Paradox of Democracy —Chris Herrera
Responses to My Critics —Robert B. Talisse

Symposium: Waco Twenty Years Later
The Contested Legacies of Waco —Irfan Khawaja
The Branch Davidian Stand-Off Twenty Years Later —Michael Barkun
From Razing a Village to Razing the Constitution: A Twenty-Year Retrospective on Waco —Paul H. Blackman and David B. Kopel
Waco: An Incident Superseded —Dick Reavis

Articles
Plato and Aristophanes: Poets of Hope —Anne Mamary
Portrayals of Egoism in Classic Cinema I: Sympathetic Portrayals —Gary James Jason

Review Essays
Review Essay: Eugene Garver’s Aristotle’s Politics: Living Well and Living Together —David J. Riesbeck
Review Essay: Mark D. Friedman’s Nozick’s Libertarian Project: An Elaboration and Defense —Danny Frederick
Review Essay: Al Gini and Alexei Marcoux’s The Ethics of Business: A Concise Introduction —Gary James Jason

Book Reviews
Eric Marcus’s Rational Causation —Bernardo Aguilera
James Swindal’s Action and Existence: The Case for Agent Causation—Frank Scalambrino
Allan Gotthelf and James B. Lennox’s (ed.) Metaethics, Egoism, and Virtue: Studies in Ayn Rand’s Normative Theory —Mark LeBar
Terry Eagleton’s Why Marx Was Right —C. Upendra
Edward W. Younkins’s Flourishing and Happiness in a Free Society: Toward a Synthesis of Aristotelianism, Austrian Economics, and Ayn Rand’s Objectivism —Jared Meyer
Randal O’Toole’s American Nightmare: How Government Undermines the Dream of Homeownership —Eileen Norcross
Gretchen Morgenson and Joshua Rosner’s Reckless Endangerment: How Outsized Ambition, Greed, and Corruption Led to Economic Armageddon
—William Thomas
Tom G. Palmer’s (ed.) After the Welfare State —Matt Faherty

Afterword
Randian Egoism: Time to Get High —Irfan Khawaja

The Non-Labor Theory of Value

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Here’s a thought for Labor Day: name the common denominator of these five articles, all from The New York Times.

(1) This one, from 2009, describes the gradual legalization of rainwater-ownership in Colorado.

(2) This one, from a few weeks ago, reviews the film “Dinosaur 13,” about the theft of dinosaur bones from federal land in South Dakota.

(3) This one, a column by Timothy Egan, extols the virtues of federal land policy in the American West.

(4) This one, from today’s international pages, describes the Israeli government’s declaration of a thousand acres of land around Bethleham as “state land” off limits to development by Palestinians.

(5) This one, from today’s national pages, describes California’s attempts to curb private drilling of sub-surface water tables in that state during a drought.

As a bonus, let me add a post I wrote last year on a (still-ongoing) controversy over the ownership of sightlines in New Jersey.

The common denominator of the five or six cases–in case you’re still laboring to figure it out–is the widely-accepted, but essentially unargued assumption that state ownership of natural resources is self-evidently legitimate, and self-evidently trumps claims of private ownership of the same resources.

In (1), Colorado seems to be assuming that it owns rainwater and the sky itself.

In (2), the federal government seems to be assuming that it owns whatever dinosaur bones exist underground, regardless of who exercises the labor to discover and unearth them.

In (3), Egan seems to be assuming that the federal government should have free rein to manage Western lands as it sees fit, regardless of claims of private ownership. A valley can “belong to you and me” even if neither of us have been there, and neither of us have lifted a finger to labor on it. Further, its “belonging to you and me” supersedes the would-be rights of those who have been there (who live and work there), and have labored over it and improved it. Going yet further: a valley can “belong to you and me,” and yet it can still be the case that neither of us has the right to exercise rights of ownership over it. (If that sounds convoluted, that’s because the idea it’s describing is convoluted.)

In (4), the Israeli government seems to making the same claim about the West Bank–a claim it’s made about a lot of the West Bank for a long time.

In (5), California is assuming that sub-surface water is the property of the state, not of those who drill for it. (This case, incidentally, seems to me the most plausible of the examples of state intervention I discuss here, in part because it involves government management rather than outright ownership of aquifer water, and in part because it’s far from obvious that farmers own sub-surface aquifers, especially if the aquifer extends beyond the farmer’s surface property line. But plausible or not, what needs a justification is how California comes to have the authority to control sub-surface water supplies simply because they’re there.)

I think of the cluster of assumptions at work here as “the non-labor theory of initial appropriation”: non-labor confers strong claims of ownership, but only by the state.

If you read the philosophical literature on initial appropriation of unowned resources by private individuals, you’ll discover that ownership is a deeply fraught activity even for those who expend the ingenuity and labor to own previously unowned things. According to this literature, private individuals cannot claim strong rights of world ownership even when a given individual uniquely labors over unowned resources in novel and circumscribed ways. Such laborers labor under a heavy burden of proof before they can demonstrate bona fide ownership over the valuable items that their labor has brought into the world. Even so, they are always at the mercy of collective claims of “need” to their would-be property, no matter how obvious it is that they’re the ones to have created the relevant value, whereas the collective has not.

The classic account of this, to my mind, is A.M. Honore’s brilliant fish-hook thought-experiment in “Property, Title, and Redistribution.” For many people, the upshot of the thought-experiment is that you don’t own a fish-hook even if you’re the one who (without anyone else’s help) invented the fish-hook and has created the only fish-hook in a given village. Others have a right to your fish-hook because their access to it would (in material terms) improve their condition, even if your having it and having created it doesn’t harm theirs. In a literature littered with pointless and extravagant thought-experiments, this one is an exception: it clarifies all the essential issues in all the right ways.

To the best of my knowledge, there is no comparable literature on initial appropriation of unowned resources by states. The assumption seems to be that states are just entitled to show up, survey all of the resources within their domain, and, by fiat, declare those resources to be the property of the state. Woody Allen said somewhere that showing up is half of life. As far as the state is concerned, showing up is all of ownership: showing up and saying “ours” is all the state needs to do to own (literally) anything on Earth (surface, sub-surface, water, or air) or even beyond it (i.e., outer space). If ever you’re tempted to accept the claim that libertarians and their ilk fetishize private property, consider the sorts of claims made by the champions and practitioners of state ownership. According to them, by doing nothing, you come to own everything.

The fact of the matter is that initial appropriation is a fraught and difficult subject whether the appropriation is made by private or public agents. It isn’t obvious or clear how it is that we come to own the bits of the world we own, whether “we” are private citizens or agents of the state. The real lesson of Labor Day is not what we “owe” the labor movement. (I generally like the labor movement, but for reasons I can explain some other time, I’m inclined to think that it owes me more than I owe it.) The real lesson is that we need to clarify our thoughts about the relationship between labor, non-labor, and ownership. We can’t owe the labor movement anything if none of us owns anything. And we can’t own anything if the state owns everything, including us. That last clause may seem implausible, but if the state doesn’t have to do anything to own something, it doesn’t have to do much to own us. In the Wizard of Oz, the Wicked Witch’s guards chant, “All we own, we owe her.” It kind of seems like a joke. But it kind of isn’t one.

Surrender, But Don’t Give Yourself Away

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By Kurt Keefner

(This post is a response to one by Carrie-Ann Biondi, just preceding it below.)

As part of a discussion on Facebook, my friend, philosopher Carrie-Ann Biondi, defended the occasional positive connotations of the term “surrender.” At first this idea stuck in my craw. I knew she did not mean “turning the other cheek” or “Resist not evil” or any such New Testament notion of being submissive, but I was concerned that surrender inherently meant splitting oneself in two, into the part that surrenders and the part one surrenders to. Carrie-Ann assured me that this was not the case and later wrote an essay about usages of the term “surrender” in The Fountainhead. After further consideration, I think I pretty much agree with her about the positive connotations. I’ve written this follow-up essay to elaborate on and extend her ideas. I don’t claim to have captured everything that Carrie-Ann meant, but I think I’m on to something worthwhile regardless.

There seem to me to be several kinds of surrender that are healthy. They are diverse, but they have a similar underlying emotional dynamic. The overall pattern seems to be that one exerts a kind of control that one gives up in favor of allowing oneself to be vulnerable to something or someone. When I say “vulnerable” I mean allowing oneself to be affected by something without the attempt to protect oneself from it or manage it, so that you’re “giving yourself” to whatever it is.
Here is my heart, open to the world.
I prefer the metaphor of vulnerability to the metaphor of surrender, but “vulnerable” does not have a verb form, so I will use “surrender” with the caveat that what I mean is “allow oneself to be vulnerable.” Let’s examine some of the forms of control and surrender and look for deeper commonalities.

A first and basic kind of control is what we might call self-management. In this variety a person is focused on a goal and drives oneself to achieve it. One’s actions and even one’s mental states are planned and disciplined. This form of control is most prominent among ambitious people, but it can be found to varying extents in almost anyone who is not completely impulsive. People who self-manage to a high degree can have trouble letting beauty or tenderness into their lives, and to do so they have to learn to relax and surrender to the moment instead of always living in the future. We see an example of this in the scene in Atlas Shrugged where we first meet Dagny and she hears the melody of Halley’s Fifth Piano Concerto. She tells herself “Let go—drop the controls—this is it.”

Randy Elrod's portrait of Dagny Taggart
Randy Elrod’s portrait of Dagny Taggart, available at http://www.randyelrod.com/dagny-taggart-atlas-shrugged-my-latest-watercolor-between-the-pages-series/

Second, we have the control of reserve. Even very open people do not completely expose themselves to strangers. One has to get to know and trust a person before one “surrenders” to them by “letting them in.” To let someone in is to allow oneself to be vulnerable to them. This form of surrender can range from friendship to romantic love. This is the paradigm example of surrender as trust.

Our third kind of control is sexual. One does not let just anyone in—to one’s bed or body. While I do not wish to overstress this matter in the way Ayn Rand does, I would say that this is a somewhat asymmetrical situation, that men do most of the pursuing, women do most of the resisting (controlling) and surrendering. Women are more physically vulnerable to men than the other way around, although men and women are of course both emotionally vulnerable where romantic love is concerned.

Fourth is what I took Carrie-Ann to mean in an earlier discussion of surrendering. Here the form of control is refusing to admit that you are wrong when at some level you know you are. What is necessary here is to surrender to reality, or, to be exact, to give up the false belief you have been clinging to in favor of what you really know (at whatever level). Maintaining the false belief dis-integrates the self, because you are holding your deeper knowledge at bay and compartmentalizing yourself. Surrender in this situation heals the breach. Note that even in this epistemological situation there is still an element of vulnerability because you take a chance on your ability to survive without the false belief.

A quote from Eugene Gendlin is appropriate here:

What is true is already so.
Owning up to it doesn’t make it worse.
Not being open about it doesn’t make it go away.
And because it’s true, it is what is there to be interacted with.
Anything untrue isn’t there to be lived.
People can stand what is true,
for they are already enduring it.

Fifth and last for this essay is the desire to overmuch control one’s experience that in Killing Cool I label “Pretending.” What one Pretends is a false self defined by a pseudo sense of life, as when one tries to be hip or chronically ironic or inappropriately seductive. When one Pretends, one falsifies reality and reduces other people to convenient cartoon figures. In the book I develop several methods of addressing the problem of Pretending. One of them, which I call centering, involves letting reality in and thus could be said to be a form of surrender or allowing oneself to be vulnerable.

Due out September 2014

There is a sixth form of control and surrender I wish to discuss, but it would take a disproportionate amount of space, so I will save it for another essay. I’ll say this much about it: It has to do with the nature of focus. Focus, or paying attention is how we cognitively engage the world. But as it turns out there are several ways of focusing one’s attention and they have different effects on the organism. It may be advisable to stop focusing in the typical Western, problem-solving way sometimes for the sake of mental health. Doing this may also be experienced as a kind of surrender.

So what is the common emotional dynamic to all these forms of surrender? I would say that it is trust. Trust means letting your guard down and allowing yourself be vulnerable. Normally when we think of trust we think of trusting another person, but trust more fundamentally means trusting yourself. Before you can “drop the controls” or admit that you were wrong, you have to trust that you can handle the situation, that being vulnerable won’t get you killed or badly hurt emotionally. Even when one is sure of this, there can still be a raw edge to the experience of vulnerability that makes the experience that much more piquant and valuable, much like love—for there can be no love without trust, no trust without vulnerability, no vulnerability without surrender.

Surrender in The Fountainhead

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By Carrie-Ann Biondi

It’s my contention, which may sound counter-intuitive to many Objectivists, that the title of this post is not an oxymoron.(1) Isn’t “surrender” a case of giving oneself up to an enemy, relinquishing ones’ values, giving in to the less-than-best? Isn’t that immoral on Ayn Rand’s view? Well, it depends on what one means by “surrender.” Rand was sensitive to and used multiple senses—both positive and negative—of the word “surrender.” After combing through The Fountainhead with this issue in mind, I was surprised to find at least fifteen instances of this word throughout the novel and that most of the uses are positive ones. There are three contexts of use, with one being negative and two being positive. I’ll describe and briefly analyze these three contexts of use, and conclude both that Rand by far uses “surrender” in a positive way and that she is right to do so. (2)

First, here is the negative use of “surrender,” when it means to give up one’s values. There are only a few places where this occurs, most prominently in relation to Peter Keating and Ellsworth Toohey. One instance occurs when Peter visits Howard Roark after he is fired from John Eric Snyte’s firm and then opens his own office:

Keating wondered why he should experience that sickening feeling of resentment; why he had come here hoping to find the story untrue, hoping to find Roark uncertain and willing to surrender (p. 130).

Another instance is when Ellsworth counsels giving in to flings rather than pursuing true love:

When consulted on love affairs, Toohey counseled surrender, if it concerned a romance with a charming little pushover, good for a few drunken parties . . . and renunciation, if it concerned a deep, emotional passion (p. 302).

In both of these cases, Peter and Ellsworth hope that others will pragmatically surrender in cowardly fashion either to convention or meaningless whims. In short, they hope that others give up on being people of devoted principle. Both of them are viciously motivated. Peter, who is second-handed, lacks integrity and resents Howard’s independence and sterling character. Ellsworth desires to control others and gets perverse pleasure from emotionally manipulating others so that they will become dependent on him. Peter is one of his victims in this regard.

Second, here is the most common positive use of “surrender,” which occurs in a sexual context and reflects Rand’s views about the passionate response of one romantic partner to another. While Rand focuses primarily on a female’s surrender or submission to a man, she also has an interesting scene where Howard surrenders to Dominique Francon, so I include that here as an illustration of Rand’s broader point about the nature of romantic love. Its occurrence is always between Howard and Dominique. Here are a few examples (though there are at least six like this):

It was an act that could be performed in tenderness, as a seal of love, or in contempt . . . . He did it as an act of scorn. Not as love, but as defilement. And this made her lie still and submit. One gesture of tenderness from him—and she would have remained cold, untouched by the thing done to her body. But the act of a master taking shameful, contemptuous possession of her was the kind of rapture she had wanted. Then she felt him shaking with the agony of a pleasure unbearable even to him, she knew that she had given that to him, that it came from her (p. 218).

Then she looked at him. She stood naked, waiting, feeling the space between them like a pressure against her stomach, knowing that it was torture for him also and that it was as they both wanted it. Then he got up, he walked to her, and when he held her, her arms rose willingly . . . her mouth on his, in a surrender more violent than her struggle had been (p. 274).

She tried to demonstrate her power over him. She stayed away from his house; she waited for him to come to her. He spoiled it by coming too soon; by refusing her the satisfaction of knowing that he waited and struggled against his desire; by surrendering at once. . . . He would lie at her feet, he would say: ‘Of course I need you. I go insane when I see you. You can do almost anything you wish with me.’ . . . The words did not sound like surrender, because they were not torn out of him, but admitted simply and willingly (p. 311).

Patricia Neal and Gary Cooper in The Fountainhead

While some commentators have found problematic the violence mingled with pleasure in passages like these, what is clear from both the larger context of the novel and Rand’s own remarks (3) is that she intended this kind of intensely pleasurable form of surrender as a positive experience. Despite the inverted language that Dominique uses at times (as the internally conflicted person she is for almost the entire novel), she loves Howard. Their love-making is an ecstatic submission of the best in Dominique to what she adores most in Howard. This is Dominique at her most whole-hearted until she resolves her internal conflict at the end of the novel, when she finally embodies with ease a desire for unified happiness in public and across her whole life, awakening at last “with the sun in her eyes”: “[S]he knew that she could not have reached this white serenity except as the sum of all the colors, of all the violence she had known. ‘Howard . . . willingly, completely, and always . . . without reservations, without fear of anything they can do to you or me’” (p. 669). As Lloyd Drum remarks, “Ultimately Dominique’s surrender contains all of the basic themes of The Fountainhead. It is more than a surrender of the body to bodily pleasure. It is a surrender of the soul to the ecstatic possibilities of the human spirit.” (4)

Third, here is the less common positive use of “surrender,” but which is arguably the most general and powerful. It concerns the sense of surrender that, as Joshua Zader insightfully notes, is “closely aligned” with love and occurs “in some spiritual and personal growth traditions.” (5) There are three instances when Howard, Dominique, and Gail Wynand each surrender out of love, but not in a sexual context. The first instance occurs when Steve Mallory is working on the sculpture of Dominique for the Stoddard Temple, but without much luck until Howard walks into the back of the room: “Then he saw what he had been struggling to see all day. He saw her body standing before him, straight and tense, her head thrown back, her arms at her sides, palms out, as she had stood for many days; but now her body was alive . . . a proud, reverent, enraptured surrender to a vision of her own, . . . the moment touched by the reflection of what she saw” (p. 336).

Joan of Arc, 1879, Jules Bastien-Lepage (Metropolitan Museum of Art, NY)

The second instance occurs when Howard relaxes after a swim at the home he has built for Gail and Dominique: “She [Dominique] thought: This is the tribute to Gail, the confidence of surrender—he relaxes like a cat—and cats don’t relax except with people they like” (p. 586).

The third instance occurs when Gail reflects on his power in relation to Howard while they are on a cruise together on Gail’s yacht: “As he stood at the rail, watching Roark in the water, he thought of the power he held in this moment: he could order the yacht to start moving, sail away and leave that redheaded body to sun and ocean. The thought gave him pleasure: the sense of power and the sense of surrender to Roark in the knowledge that no conceivable force could make him exercise that power” (p. 603).

What is striking about this third use of “surrender” is the experiential and moral rightness of it. Somehow, this is not a giving in to some force external to one’s agency, but rather, is a profound expression of one’s deepest sense of self. These three individuals are most truly themselves when they surrender to a love they feel for one another that is rooted in a love of their own best selves. I find Scott Schneider’s gloss on this idea helpful: “In all three cases, the surrender is of one’s will to emotions/values. In the negative case, they are false values or anti-values. In the positive cases, struggling against these values would be contradictory, since the values in question go to the person’s core, and surrender is the recognition of that.” (7)

Surrender as an integrative expression of one’s highest values can be seen as a spiritual journey toward self-understanding, growth, and wholeness. When commissioned by Hopton Stoddard to build the Stoddard Temple, Hopton articulates (as the conduit for Ellsworth’s planted words) the non-religious spirituality that Howard has about his self/work in the face of Howard’s admission that he does not believe in God:

We want to capture—in stone, as others capture in music—not some narrow creed, but the essence of all religion. . . . The great aspiration of the human spirit toward the highest, the noblest, the best. The human spirit as the creator and the conqueror of the ideal. The great life-giving force of the universe. The heroic human spirit. . . . You’re a profoundly religious man, Mr. Roark—in your own way. I can see that in your buildings. . . . [W]hat I want in that building is your spirit . . . , Mr. Roark. Give me the best of that (pp. 319-20).

Howard is then described as having “learn[ed] something about himself, about his buildings, from this man who had seen it and known it before he knew it” (p. 320). This is the very thing that Henry Cameron also saw and told Howard about at a more fundamental level, when he saw a photo of Howard’s first office shingle “Howard Roark, Architect”:

And I know that if you carry these words through to the end, it will be a victory, Howard, not just for you, but for something that should win, that moves the world—and never wins acknowledgement. It will vindicate so many who have fallen before you, who have suffered as you will suffer. May God bless you—or whoever it is that is alone to see the best, the highest possible to human hearts (p. 133).

All of these religious/spiritual words are Rand’s own way of reaching toward something about the self, a loving embrace of one’s true self in its richest complexity that often reaches and moves beyond discursive, conscious thought. If we trust, perhaps surrender, to the best within us and listen to what it shows us, then we can grow as individuals and in connection with the best in others. “[T]he highest possible to human hearts” is found there in those places beyond words in the world and in our self in that world. It is often precisely consciously held beliefs—false ones—that get in the way of individual wholeness. The examples of Dominique and Gail show this point. They both fight Howard tooth and nail because of their fears and false beliefs. Dominique’s salvation is that she finally embraces in a fully embodied and integrated way her love of what Howard rather than Gail stands for. She finally gets one of Ralph Waldo Emerson’s maxims, which could have been uttered by Rand: “Trust thyself: every heart vibrates to that iron string. . . . It is easy in the world to live after the world’s opinion; it is easy in solitude to live after our own; but the great man is he who in the midst of the crowd keeps with perfect sweetness the independence of solitude.”

Many might not be comfortable with Rand’s uses of “surrender” in The Fountainhead, but her carefully chosen language is undeniably there and needs to be contended with for what it is. The language of surrender provides insight into what it means for heroic man to be a person of “self-made soul” and to become who he potentially is.

——————————————-

(1) This essay began as a July 29, 2014 Facebook post of mine, “Surrender in The Fountainhead,” in partial response to a more general Facebook discussion on the nature of submission, surrender, and obedience and whether any of these could be compatible with Objectivist principles concerning rationality and choice. I would like to thank various participants in both the general and specific discussions for their thoughts and feedback on this topic. My gratitude especially goes to Kurt Keefner for engaging in extended discussion on this topic and his generous invitation to share his blog space, and to Joshua Zader for his feedback on and promotion of these discussions.

(2) All citations to The Fountainhead are to the 1971 New American Library edition.

(3) For example, Rand’s remarks such as rape’s being “a dreadful crime” and “if it’s rape—it’s rape by engraved invitation,” seem intended to convey the consensual nature of Dominique’s sexual surrender to Howard; see Letters of Ayn Rand, ed. Michael Berliner (New York: Plume, 1997), pp. 282 and 631. (The second image in the post depicts that scene as portrayed by Gary Cooper and Patricia Neal in the film version of The Fountainhead.)

(4) Lloyd Drum, July 29, 2014 comment on my July 29, 2014 Facebook post “Surrender in The Fountainhead.”

(5) Joshua Zader, July 29, 2014 comments on his Facebook re-posting of my July 29, 2014 Facebook post “Surrender in The Fountainhead.”

(6) This description of Dominique reminds me of the painting “Joan of Arc” that I chose to include above in this post. It’s stunning to see in person, especially her eyes beholding a vision of her own. The painting is Jules Bastien-Le Page’s “Joan of Arc” (1879), Metropolitan Museum of Art, New York, New York.

(7) Scott Schneider, July 29, 2014 comment on my July 29, 2014 Facebook post “Surrender in The Fountainhead.”

The concept of “surrender” in Ayn Rand’s Fountainhead: A Discussion

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I’m not on Facebook, but most of my friends are, and some of them tell me that genuinely philosophical discussions take place there. I wasn’t apt to believe that until co-blogger Carrie-Ann Biondi drew my attention to an extended discussion she’d had on Facebook with her friend Kurt Keefner (and others) on the concept of “surrender” in Ayn Rand’s Fountainhead. Eventually, their discussion turned into a series of essays. In the spirit of seeing-as-believing (it isn’t, but never mind) Carrie-Ann, Kurt, and I have decided to cross-post the essays, Carrie-Ann proposing an interpretation of Rand-on-surrender, and Kurt commenting on it–including the exquisite graphics both of them used to supplement what they wrote. Though the original discussion began sometime in July on Facebook, the essays were first posted yesterday at Kurt’s blog, “Become Who You Are.”

Carrie-Ann, as I’ve mentioned before, is an Associate Professor of Philosophy and Chair of the Department of Philosophy and Religious Studies at Marymount Manhattan College. She’s also my co-editor at Reason Papers (which I swear to God is coming out imminently), and co-director at our (still-fledgling) Metro-Area Research Workshop of New York and New Jersey. She was also co-director with me of the now-defunct Institute for Objectivist Studies, and has put up with me for many years in a variety of other ways. She’s published academic work on Aristotle’s Politics, on patriotism, and on Harry Potter (among other things), and has interests (as you’re about to read) in the work of Ayn Rand.

I’ve never met Kurt before in person, but I know him by his work and e-reputation, and can remember having one very illuminating e-conversation with him about fifteen years ago about Rand and/versus Nozick on rights as “boundaries” (cf. Anarchy, State, and Utopia, p. 57). His blog is a trove of insights on topics related to ethics and literature, and he’s the author of an imminently forthcoming book called Killing Cool: Fantasy Versus Reality in American Life.   

I’ll be posting their essays–you guessed it–imminently.

Late Afternoon Thoughts on Listening to Mozart’s Requiem

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I’ve been attending the Mostly Mozart Festival in New York for about twenty years now, and spent Friday night at its penultimate performance of the season–Bach’s “St. John’s Passion,” Frank Martin’s “Polyptyqe,” and Mozart’s Requiem. Here’s a nice write up. A few random thoughts:

1. The festival is financially supported by a long list of corporate and private donors, and by The New York State Council on the Arts. A real, rather than rhetorical question: is state funding really financially necessary to put on the Mostly Mozart Festival? Or is it there so that, for political reasons, the imprimatur and funding of the state is implicated in the festival, in order to create an inextricable link between state funding and otherwise private artistic performance?

2. The Bach and the Mozart were, of course, traditionally tonal; the Martin piece, composed in 1973, was dodecaphonic, or twelve-tonal–interesting, but certainly harder to listen to. The Martin piece was played by the violinist Patricia Kopatchinskaya, who performed it barefoot, in a rather odd-looking (but not at all unpleasant) dress, reminding me, in her performance style, of a cross between AC/DC’s Angus Young and Helena Bonham Carter’s portrayal of Elizabeth in the 1994 film version of Mary Shelley’s Frankenstein.  (I mean that as a compliment on both counts).

little-superJumbo

The enjoyable result was a bit like listening to contemporary classical religious music performed by a crazed shred metal guitarist–a first for me.

I suppose it’s one of my idiosyncratic obsessions, but I couldn’t help reflecting, even in my enjoyment of the concert, on the inadequacies and missed opportunities of Ayn Rand’s writings on aesthetics. Nothing in Rand’s Romantic Manifesto prepares one for an experience of the kind I had at the concert, and a great deal in the book militates against it.  What is one to make of a book on aesthetics that offers a theory of music but makes no reference either to Bach or Mozart? And however unconventional one might find Frank Martin’s music, it (and music like it) surely deserved more engagement than Rand’s dismissive, moralistic rhetoric in that book would suggest. I realize that there’s recently been some interesting revisionary work on Rand’s aesthetics, and I’m the first person to say that her Romantic Manifesto contains some brilliant ideas (along with the fatuous ones). But on the whole, I’m inclined to think that Rand’s aesthetic writings are a dreary, joyless, and depressing affair, which detract at least as much from aesthetic experience as they contribute to it–something I often find myself thinking in the midst of novel-but-enjoyable aesthetic experiences like the one I just had. I wonder whether others influenced by Rand’s writings have had similar reactions.

3. A parting thought: as I watched the chorus and soloists make their way through Mozart’s Requiem, I couldn’t shake the thought that they all looked like children: they looked the way children do when performing on stage for the first time, beaming rapturously and ingenuously at the audience, engrossed in the performance, but thoroughly enjoying the attention being lavished on them–with the difference that these children had the musical skills of phenomenally talented adult professionals. I also can’t help thinking that a scene like that is part of what makes life worth living–and, I guess, part of what will supply the inspiration I’ll need to teach the six course load I have this semester. Classes start Wednesday.

Ferguson continued: answers to second-order questions

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Here, as promised, are answers to some (not all) of the questions I posed about Ferguson in an earlier post. I’ve focused here on second-order questions about the shooting. The first-order questions are mostly, as I’ve already suggested, unanswerable at this stage of the case.

5. Must we always wait for a verdict before passing judgment on a criminal case?

I think there ought to be a default rule of waiting for a verdict in a criminal trial before passing judgment on matters of guilt or innocence. The principle here is that the accuser bears the burden of proof, and the accused has to be presumed innocent until the accuser meets the burden of proof. In criminal trials, the burden of proof is guilt beyond a reasonable doubt, a fairly high standard as I understand it.

A great deal of the evidence in a criminal case is bound to be in the hands of the contending parties in the case, and for a variety of reasons may not (often is not) publicly disclosed to the media (despite the impression one gets that the media has the ‘inside scoop’ on a case). So declarations of guilt or innocence about criminal cases prior to a legal verdict are bound to be premature, counter-productive, and encouraging of bad epistemic habits.

There are exceptions to this general rule. In some cases, guilt (or innocence) may be transparent enough to obviate the need for a trial, at least as far public, non-legal discussion is concerned. But I think such cases are rarer than people tend to think, because even putatively transparent evidence can be highly ambiguous.

In some cases, a trial may not be possible, and yet a ‘verdict’ of some kind is necessary in order to take action to deal with an undeniable threat to one’s rights. I don’t think, for instance, that the US or Pakistan needs to put the Taliban on trial before deciding to launch drone attacks on them. Nor do I think that ‘extrajudicial murder’ is involved in killing Taliban militants. Unlike the metaphorical talk about Ferguson as a ‘war zone’, northwestern Pakistan really is a war zone (as is Gaza). But de facto war zones involve a de facto reversion to (a Lockean) State of Nature, where lower epistemic standards are both necessary to defend one’s rights against clear-cut aggression, and morally justified. One of the reasons I object to talk of Ferguson as a ‘war zone’ (or comparisons of Ferguson to, say, Gaza) is that such talk induces us to regard Ferguson as a place where lower epistemic standards are prematurely justified.  It also induces us to compare like with unlike. But Ferguson is not Waziristan or Gaza. Comparisons of the two are wrongheaded and irresponsible.

It might be objected that a criminal case can drag on for decades as a defendant exhausts his appeals. Should we wait until the last appeal is in to pass judgment? I think that has to be decided on a case-by-case basis. The principle I would adopt is to regard the first jury (or bench) verdict in the case as defeasibly conclusive unless there are reasons to suspect the bona fides of the case. If there are reasons for suspicion, one simply has to wait until they’re resolved, and that can require decades. (I realize that ‘defeasibly conclusive’ is an odd phrase in need of explication, but I think most Policy of Truth readers will understand it, if only because its readers are (a) an extraordinarily sophisticated bunch, and (b) number in the double digits.) It’s worth remembering that the Innocence Project has demonstrated the innocence of people who had previously gotten what seemed like conclusive verdicts of guilt—decades after the fact. The Central Park Five are a vivid example, but for a particularly heart-wrenching and weirdly counter-intuitive example, I’d suggest reading chapter 11 of Kathryn Schulz’s excellent 2010 book Being Wrong: Adventures in the Margin of Error. (Schulz’s chapter is a nice confirmation of Kathleen Wilkes’s insight that real-life cases are often more clarifying than thought experiments.)

[Postscript, September 4, 2014: Here is yet another in the endless litany of exonerations of previously-convicted people who had gotten what had seemed a conclusive verdict of guilt. I discuss a related sort of case from my own personal experience here.]

It might be objected that since courts err, it’s a mistake to wait for a court verdict before forming a judgment on a criminal matter. But it seems to me that the dangers of error are much higher if one doesn’t wait.

Finally, one might object that civil trials, including trials for wrongful death, involve a lower standard of proof than criminal trials, so why not follow suit? I actually have a moral objection to the use of lower standards of proof in civil trials, and find it objectionable that in the American system, one can try the same case twice in two different court systems. So I reject the premise behind the objection. On the view of punishment I favor, there would be no distinction between civil and criminal trials: there would be one trial per case focused on what I think of punitive rectification of the rights violation. (My definition of ‘punishment’ stands outside what I take to be the retributivist monopoly on definitions of that term.)

In the case of Ferguson, I think it’s obvious that the initial rule stands. Where we have a series of ongoing investigations into a criminal matter, it makes no sense to ‘take sides’ or even give the appearance of doing so, not just in advance of the trial, but in advance of the conclusion of the initial investigation. But partisans on both sides have done that re Ferguson.

Consider some of the attitudes expressed in this news item, expressing “support” for Darren Wilson.** At this stage of things, Wilson could either be entirely innocent or a cold-blooded racist killer, or something in between. ‘To take his side’ is to gamble that he is innocent when he could be guilty. To do that is to play Russian roulette with one’s moral and epistemic faculties.

On the other side, consider the attitudes expressed by Michael Eric Dyson in this news item. It’s not enough for Dyson that President Obama wants to wait for the findings of an investigation underway. Apparently, virtue requires Obama to become the blowhard identity-politics version of George W. Bush: he has to meet the violence of what is happening in the streets with rhetorical violence that ups the ante. For a reductio ad absurdum of the view he’s adopting, I’d suggest Dyson’s spending some time in the streets of Islamabad, Pakistan with the supporters of Imran Khan and Muhammad Tahir ul Qadri ,where tens of thousands of passionate but completely mindless protesters are besieging the presidential residence* in order to overthrow democracy in the name of democracy, but cannot articulate either the nature of their grievances, or what they want done in rectification of ‘them’. Whether he realizes it or not, those mindless crowds are the perfect expression of the politics Dyson has in mind. (Incidentally, the supposed contrast Dyson draws between Holder and Obama does not seem to me to be borne out by the facts).

In answer to both sets of partisans, I’d suggest reading Gary Alan Fine and Patricia Turner’s excellent book, Whispers on the Color Line: Rumor and Race in America, which describes the ease with which untrammeled passion leads to rumors, and rumors in turn fuel race riots. My favorite line in the book: “Ultimately, we, the public, are the agents of justice, and we must strive not to be blind” (p. 209). Both Wilson’s supporters and people like Dyson are practically suborning blindness in the rest of us.

[Postscript, August 27, 2014: Two items in today’s New York Times serve as a useful pair of footnotes to what I said here. A letter by Norman Siegel (former director of the American Civil Liberties Union) nicely reiterates some of the themes of my argument, but an op-ed by Erwin Chemerinsky (Dean of the Law School at University of California, Irvine) suggests the need for some qualifications to what I said.

Chemerinsky argues, plausibly, that the judicial deck is stacked against anyone who wants to hold police officers and other government officials responsible for civil rights violations. I’m not qualified to offer an opinion as to the legal merits of Chemerinsky’s argument, but if he’s right, we need to distinguish between two different reasons for waiting for a legal verdict before passing moral judgment on a legal case: (1) an evidence-based reason: we won’t have full access to the evidence until the verdict has been handed down; (2) a quasi-positivist reason: the legal verdict is constitutive of the facts re guilt or innocence. I’m defending (1), not (2). I doubt that anyone would defend a literal version of (2), but it’s worth stating explicitly, so as to differentiate it sharply from (1). The point is that courts have better access to the evidence relevant to guilt or innocence than does the general public (and the press), not that court verdicts magically “make” people guilty or innocent of the crimes for which they’ve been charged. Of course, even (1) is only true as a general rule; given the exclusionary rule, courts sometimes exclude relevant evidence from consideration, thereby handicapping their own access to the truth. But the point is, they have access to the relevant evidence.  In other words, the overarching point I’m making is primarily epistemic, not legal.]

6. Can it ever be justified to use a weapon against, or shoot, an unarmed person?

I think it can. One of the better arguments of gun enthusiasts is that firearms level the ‘playing field’ between large and menacing (but unarmed) assailants and the rest of us. And the argument makes good sense. If you have reason to believe that an assailant means you serious harm, and you have no other means of escape, I think you can resort to the use of a firearm. But where possible, you must limit the damage you do to your would-be assailant. What needs an explanation in the case of Ferguson is why Brown was hit with six rounds when one would have sufficed. On the face of it, I can’t imagine a legitimate reason for Wilson’s firing six shots at Brown (he might have lived if he’d been hit with one instead of six), but I’ll leave that to the forensics experts to unravel.

In general, however, I’m surprised by how many stories I’ve read over the years of suspects being shot by multiple rounds, the Amadou Diallo case being the most jaw-dropping example. It almost sounds like a joke: How many armed cops does it take to disable a man? How many rounds does it take to neutralize a human threat? Reading some of these stories, one gets the impression that the police regard criminal suspects in the way that big-game hunters regard big game. It might take six shots to take out a charging lion, but should it take that many to take out a charging human?

7-8. Should the video of Michael Brown’s robbing or stealing from a convenience store before the shooting have been released? Is it relevant to the case?

Eric Holder has described the United States as a “nation of cowards” for its unwillingness to discuss matters of race. Personally, I think there is cowardice in Holder’s suggestion that the video allegedly showing Michael Brown engaged in a convenience store robbery ought not to have been released to the public. I so far have not heard a plausible explanation for why the video ought not to have been released, aside from the claim that doing so would upset people. I find it remarkable after all of the criticism of the hyper-sensitivity of people in the Islamic world (e.g., the Muhammad cartoons, the anti-Satanic Verses protests, etc.) the Attorney General of the United States thinks that the American people have to be infantilized in the same fashion: if the disclosure of information will upset them, the information ought, in deference to their sensitivities, be concealed.

Why not say the same thing about the conversation about race that Holder envisions? Discussions about race might upset some people, too. Why isn’t their prospective ‘roiling’ a good reason for not having such discussions? If white people threatened, en masse, to take to the streets at the disclosure of some untoward fact about Wilson’s life, would that justify concealing it? Many untoward facts (some of them not quite facts) were revealed about George Zimmerman in the wake of the Trayvon Martin case, not all of them obviously relevant to the case. Should they all have been concealed? (The same was true of Conrad Murray, by the way.) Why should anyone think concealment is justified in the current case?

I think the video of Brown’s robbing the convenience store is potentially relevant to the case. Though Wilson stopped Brown for jaywalking rather than robbery, the official police timeline suggests that he was aware that the robbery had taken place, and that he suspected that Brown and his companion, Johnson, were the robbers (or thieves, depending on how you want to describe the event in the store: I’m not convinced it was robbery). There is obvious reason to fear a robber more than one fears a jaywalker. If Brown was high on pot, there is additional reason to think that his judgment was impaired. Nothing in the way of justice is gained by trying to cover up these facts, or possibilities, whichever they turn out to be.

9. Is it too easy for the Darren Wilsons of the world to get away with murder?  

This question in effect goes back to question (1) in the original list. It’s possible that even if Wilson ends up being guilty of murdering Brown, there might (in the nature of the case) be insufficient evidence to convict him of a crime because the evidence falls below the threshold of being beyond a reasonable doubt (or being a civil rights violation in the civil context).

Suppose that that’s so, and that a jury hands back a verdict of ‘not guilty.’ Legally, of course, we’d have to treat Wilson as not-guilty. But outside of strictly legal contexts, are we justified in regarding him, in effect, as going through the rest of his life trailed by a cloud of suspicion? Depending on how the evidence turns out, I think we might be. That is in effect the current predicament of George Zimmerman. Even people who accept the verdict in the Zimmerman case might have their doubts about whether he is genuinely innocent in the moral sense. I do. Zimmerman may not have murdered Martin, but he had no business pursuing him after he (Zimmerman) had called the police. He should have stayed put, and his failure to do so strikes me as morally culpable, even if it isn’t legally adjudicable. Something similar would (on this scenario) end up being true of Wilson. Even if he ends up being legally innocent, he might end up being morally culpable of some non-legal infraction, and if so, that suspicion would (and should) follow him in our judgments of him thereafter. A legal finding of non-guilt doesn’t necessarily wash away all evidence of or suspicion of moral wrongdoing. The hard fact of the matter is that a legal finding of non-guilt doesn’t even necessarily wash away all suspicion of criminality, a fact with complex ramifications I can’t do justice to here.

10. Should the testimony of police officers weigh more heavily than those of criminal suspects?

This might have been a tendentious question on my part, but in any case, I regard the answer as obvious. I don’t know the specifically legal status of this rule (or if it’s even a ‘rule’), but I’ve seen it applied often enough in courts of law here in New Jersey: if a case comes down to the testimony of a police officer versus a criminal defendant, the judge will simply assume that it is the police officer who is telling the truth and the defendant who must be lying or in error. Why? Because police officers can be presumed to be truthful, but criminal defendants cannot. In effect, the defendant’s presumption of innocence can be defeated by a police officer’s sheer assertion that the defendant is guilty. The insouciance with which I’ve seen this rule applied is amazing, and I think the remedy is obvious: our courts should stop treating the testimony of police officers as pro tanto more weighty than those of criminal defendants. Everyone’s testimony should be regarded as being on a par, unless there’s positive evidence to the contrary.

One is obliged in a court of law to treat officers of the court with great deference and respect, which they are not obliged to reciprocate: legally speaking, there is such a thing as contempt of court, but no such thing as contempt of citizen by the court. But I’m inclined to think that the latter is more commonly exemplified than the former, and there is no legal remedy for it (aside from the very attenuated remedy of an appeal).

When the judicial system runs roughshod over whatever procedural rights one has, one is apt to feel contempt for or rage at those who run it. Having been on the receiving end of this treatment myself in a court case that had nothing to do with race, I was tempted, in court, to say something that would have gotten me a contempt citation. When, a few months later, I saw the same judge walking down the street on his way to a restaurant, I was tempted to confront and abuse him. I held my tongue on both occasions, but I understand the impulse to lash out, and anyhow, my case was a very, very trivial one (it was a traffic case involving three license points and a $100 fine).

I think one has to experience officialized judicial or police arrogance in one’s own case to be able to grasp the justified rage of the protesters on the streets of Ferguson. I don’t mean that rioting is justified. What I mean is that anger is justified, and that those who feel no anger (and by implication no sympathy for the protesters) ought to ask themselves whether they’ve had the sorts of experiences that merit the same anger. I doubt they have. I’m enough of a cognitivist about the emotions to say that one can’t think by means of anger. (I agree with Ayn Rand’s claim that emotions are not ‘tools of’ cognition.) But I’m enough of an Aristotelian or Freudian to think that justified anger is a potential ally of thought about justice. We need, as Roderick Long has apt put it in a different context, to think our anger—or our apathy, come to that. There’s more of that to do, so more to follow.

*I had originally written “Presidential Palace,” but I think I was momentarily confusing Pakistan with Somoza’s Nicaragua.

**This item makes the point better than the item I originally used.