Cashing the Check of Justice (1)

But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity in this Nation.

So we have come to cash this check. 

–Martin Luther King, Jr. , “I Have a Dream” (1963)

I just got home from nearly three weeks abroad. Waiting for me in the mail: final judgment in my favor on my Superior Court appeal against Bedminister Municipal Court. But the case is not over. Continue reading

DUI, Refusal, and Procedural Rights

Here’s a question (or two, or a bunch) for the lawyers out there, particularly anyone specializing in traffic law, especially DUI in New Jersey, assuming that any of them read Policy of Truth:

I don’t drink, much less drink and drive, so I’m sitting here in a calm moment with no legal issue at stake trying to understand New Jersey law (NJSA 39:4-50.4a) on DUI testing and prosecution for refusal. It just amazes me how poorly drafted even the simplest and most ubiquitous law turns out to be. Continue reading

Drivin’ and Cryin’: Bumps on the Road to Pot Legalization

I’m all in favor of the decriminalization of marijuana, indeed for the eventual legalization of recreational pot use, but the closer we come to achieving that goal, the greater the number of practical quasi-dilemmas we’ll have to face that we’d never had to consider before. These quasi-dilemmas may not be conclusive considerations against full legalization, but they can’t be minimized, either.

It’s common for advocates of legalization to compare pot with alcohol: if we accept recreational alcohol consumption, why not accept recreational consumption of pot? In many ways (it’s plausibly argued), alcohol is worse than pot. If we overlook the problems with alcohol and allow recreational alcohol consumption anyway, it seems inconsistent to fixate on the similar problems with pot in order to ban the recreational use of pot. Continue reading

Police Tailgating as Entrapment: A Comment and Query

I live a fair distance from work, so I spend a fair bit of time driving on interstate highways. Because I do, I have a fair opportunity to observe the rather unfair doings of the New Jersey State Police on our interstate highways. This is the kind of behavior I see just about every day:

And this is the kind of behavior I’ve seen more than once (albeit by local police, not by state troopers):

I once saw a Glen Ridge police officer tailgate and then crash into the car he was tailgating, in part because he was lighting a cigarette while doing so. Having crashed into the car in front of him (at a red light), he called in backup, surrounded the victim’s car, then aggressively interrogated her at the scene–presumably for the crime of his having crashed into her. (This despite the fact that liability for rear-end collisions is almost always pinned on the car in the rear.) I wish I’d recorded it, but I didn’t have a cellphone at the time.   Continue reading

Heading Out to the Highway (with David Brooks)

The ethics of driving is a topic dear to my heart, having lost my two closest childhood friends (and the wife of one of those friends, who was also a friend) to traffic accidents, and living as I do in north Jersey, where every day’s commute is a near-death experience. I hate cars, I hate driving, and above all, I hate driving in New Jersey, so I’m always open to anyone who’s willing to trash the way “we” drive, ascribe it to “our” moral failings, and demand that “we” do better. (I hijacked a presentation on the Aristotelian virtue of eubolia at the Felician Ethics Conference this past fall to insist that in the modern world, eubolia is a virtue best exemplified by virtuous drivers.)

This anti-driving (or anti-bad-driving, or anti-ubiquitously-bad-driving) attitude competes with another downer sentiment of mine: I can’t stand David Brooks. Just to be clear: I can’t fucking stand David Brooks.

So I opened up this morning’s New York Times, turned to the Op-Ed page, and faced a bit of a dilemma. Here was David Brooks trashing the way “we” drive, describing Jersey drivers as people who “treat driving as if it were foreplay to genocide,” acknowledging that “driving means making a thousand small decisions” (internalized eubolia, anyone?), and getting a few things right. But like so many so-called dilemmas, this one wasn’t an instance of that fabled entity, the irresolvable ontologically-based moral dilemma, and collapsed before long. Because as per usual, Brooks managed to snatch polemical failure from the jaws of success, re-confirming my hate for everything he writes.   Continue reading

Check Your Suburban Privilege

Perhaps I’m being petty, but I’m convinced that there is a distinctive ethos endemic to the suburban American northeast which might be called the suburban entitlement mentality. (I’m sure it ranges beyond that, but that’s the version I know best. I didn’t encounter it when I lived in the midwest–though I encountered other unsavory things.) I’m not a Kantian, but there are days when I think that some of the essential elements of Kant’s moral philosophy–action from the motive of duty, universalizability–were formulated in (over)reaction to a version of the mentality I have in mind. Continue reading

Guest post: A Passage to Bangladesh, Dhaka Day 1 (by Matt Faherty)

Dhaka Day 1 – Getting Taken for a Ride*

[For background, read this.]

I am currently fighting off severe jet lag so I cannot vouch for the coherence of this piece. As of typing this sentence, it is 6:14 PM and I hope to make it till 10 PM before passing out. I’ll probably settle for 9. There is so much to recount after a mere half a day here that I’m not sure I’m up to the task. Bangladesh is big, bizarre, filthy, and completely overwhelming. I’ll start with my arrival, which, like the rest of my trip up until that point, went pretty horribly.

Welcome to Dhaka!

I got off the crowded plane after listening to a rather solid line up of pop hits and entered Dhaka International Airport. By American standards, it was a shit-hole barely the size of my local Westchester airport but far dirtier (and filled with mosquitos, for some reason). I had no trouble buying a visa with my Irish passport and got through customs within 20 minutes. After messing about with the rinky-dink tourist office and getting my checked bag, I had to figure out how to get to my hotel.

The most obvious way was to go to the taxi stands in the airport–little plastic stalls filled with obnoxious men who yell “taxi!” at the top of their lungs to every person who walks by. This option had “scam” written all over; airport taxis always over charge. I asked how much it would cost to take me to my hotel: $14. Forget it. I searched for alternative means of transportation.

But what were my options? I saw Bangladesh’s equivalent to took-tooks outside (they had metal cages on the back). In retrospect, I should have taken my chances with one of them. Instead I went to the help desk and asked if the airport ran any shuttles or busses to the city center. It did not, but the attendant helpfully offered to help me get a taxi. I assumed he meant a taxi outside, so I took him up on his offer. No, he meant the scammers. Weakened from two days in transit and not feeling the desire to continue to bum around a Bangladeshi airport, I paid the outrageous fee.

If that wasn’t bad enough, the friendly attendant then turned to me and unironically asked me for a tip. He’d walked about 100 feet with me and showed me information I already knew. And let’s not forget that this guy works at an info desk at an airport and therefore it is his entire job to help people. For the same reasons I listed above, I tossed him the equivalent of $1.50.

I ended up waiting for an upsetting 30 minutes during which time I reflected upon the long series of failures that had constituted the past two days. Finally, my car arrived. It wasn’t a taxi: it was just some random guy’s car. I had been scammed by an Uber knock off.

That’s when the depressing portion of my time in Dhaka ended and the terrifying part began. I’ve experienced crazy driving before. I’ve experienced Italian drivers who fling themselves recklessly up narrow cliffside roads. I’ve experienced Turkish drivers who drive 90 mph in their tiny sub-European cars on the pseudo-highways of Turkey. I’ve experienced Chinese drivers for whom the rules of lane passing do not apply. But none of that could have prepared me for a drive in Dhaka.

To be fair, at this point I’m not entirely sure if all Bangladeshi drivers are mad men, or if my driver was an ex-Formula 1 get-away driver. What I do know is that this guy drove like a highly competent lunatic. I cannot even begin to describe the maneuvers he pulled off. If there was the slightest gap in the legions of buses, cars, took tooks (motorized rickshaws), and bikes in front of us, he would find it. And he wouldn’t just find it, he would power through it with reckless abandon, often with only inches to spare on either side of the vehicle. If no gap was present, he would slam on the gas anyway and just sort of hope a gap would appear by the time he reached the solid row of vehicles in front of us.

Forget about using the shoulder; my driver passed cars in their own lanes. He furiously honked at any cars with the gall who failed to part like the Red Sea before his divine driving skills. He nearly hit at least four pedestrians while trying to get around a truck at an intersection. Red lights did not apply to him. He drove like I had told him that I had twenty minutes to live and I really needed to get to my hotel to recover my multi-million dollar lottery ticket.  Alternatively, he drove like a Terminator-esque time traveler who had already been though this same exact driving route thousands of time sand already knew which way to turn and when to slow down at every juncture.

He was cool as ice for the duration–a lanky Indian guy with a mustache, but when he drove, Ryan Gosling-like calm seemed to come over him. Even as he brought us to the edge of death for the ninth time, he remained placid and focused.

After twenty minutes of the most exilaratingly terrifying rides of my life, I arrived at my hotel. I was so dazed that I forgot to think about the tip, and barely noticed when he (rather rudely) asked me for one. I gave him an absurdly large amount, equivalent to well over $5.

Dhaka the Dickensian

Now onto Dhaka itself. It’s a bit difficult to write a general description of the city after spending just four hours exploring a small part of it. My general description will surely grow over the next few days and I’ll try to write a capstone summary at some point.

dhaka-population-2013.jpg (468×267)

Dhaka is dirty. It is filthier than any city I’ve ever been in.** I guess I’ve been to cities in China, Southeast Asia, and Turkey which are as dirty in part, but I’ve not encountered any city anywhere that is so consistently rancid. The trash is ubiquitous. I have no idea why. Do people litter constantly? Is there no garbage service at all? The huge, steaming piles of garbage suggest that there might be a garbage service of some kind. It just doesn’t ever seem to work.

Many streets have little streams of brown sludgy water running right next to the side walk. I took a whiff (several, actually). Judging from the smell, it probably isn’t sewage most of the time, but it most definitely is sewage some of the time. Only in Dhaka have I been merrily walking down the street, to gag and be laid low by the unbearable stench that surrounds me. At one stretch of market stalls as long as the road itself, the merchants were lined up on the side of the street, in front of a ten foot-wide stream of sewer sludge. The merchants themselves stood on a foot-wide path between their stalls and the sludge. Talk about nerve-wracking work conditions: one false move, and you’re literally in the shit.

The city itself looks a lot like the non-central Chinese cities that tourists tend to avoid—except (literally) shittier. The buildings are mostly concrete blocks in various states of disrepair. Almost nothing is painted. The few skyscrapers look dirty and old despite being built in the last decade or two. The streets are all wide to allow for six or eight lanes traffic. Insane traffic constantly clogs these arteries and leaves pedestrians to sprint for cover at a moment’s notice.

A general smell of filth pervades the whole city, which in conjunction with pollution, and omnipresence of the scorching sun, creates an atmosphere of constant physical discomfort. I’m hoping to get used to it. Soon.

The natives: thick description a la Faherty

And then there’s the people–what I’ve been most interested to explore in my time here. It’s clear to me that the scam artists at the airport were anomalies. Bangladeshis are nice. No, extremely nice. While walking around I came up with the analogy: Bangladeshis are to friendliness what the Japanese are to politeness. They epitomize it.

Having spent several months in China, I’m used to the staring, the curiosity, the questions, and so on–but Bangladesh brings it all to a new level. I haven’t been able to put my finger on exactly what’s different, but it definitely different, and more intense.

Everyone stares.*** Every person I walk past on the street. Every vendor. Every police officer. Especially every child. If I fall within a Bangladeshi’s line of sight, they stare. Taking out my camera acts as an additional lighting rod; doing itcauses people to stop whatever they’re doing (walking, cooking, watching the road while driving) to see what I’m doing. The whole thing is pretty stressful, but fortunately all of the Bangladeshi’s are just absurdly nice (see above).


 The man, the myth: Matt Faherty

Occasionally someone will walk over, making unblinking eye contact with a giant smile on his face, and say something like, “Hello! What is your homeland?” (It’s always a guy, never a girl.) I smile back and tell him “America.” His eyes light up, his smile gets bigger and he usually tries to shake my hand. But they don’t quite follow the same handshake rules as we do. Their handshakes are always pretty limp-wristed and they hang on for a long time, usually at least thirty seconds.

One of the most surreal experiences in my life: I walked through a horribly filthy public park here in Dhaka, complete with even worse trash than what I encountered on the city streets, and punctuated by a brown, sludgy lake. The park was filled to the brim with young Bangladeshi boys, probably ranging from five to eighteen years old. As I’ve mentioned, young people are especially curious here, and these boys–unlike the ones I encountered on the street–were just playing cricket and soccer, and so, were undistracted by workaday concerns. As I slowly worked my way through the park, the mass of heads turning to stare at me grew ever larger. Eventually, people started following me. It began with a five-ish year old who stood a foot away from me while I was taking a picture and just looked me over. Then it turned into small groups of high school-aged kids who would walk ten or so feet behind me whispering to each other. Eventually one of them would work up the courage to do the hello-handshake thing. One group of soccer players stopped their game so I could take a picture of the whole squad.

All of it was intimidating, but also immensely friendly and harmless. The only time I felt some degree of animosity was when a ten year old on the street called out, “Hey, white!” and made a kissing noise. I’m not sure what to make of that.****

Must-see attractions and advice for tourists

I visited the National Mosque of Bangladesh, the tenth largest mosque in the world. It was kind of a let-down. They clearly went for a “quantity over quality” approach with it, because while it’s massive, it’s all desperately plain. The mosque takes up almost an entire square between major city blocks and features a football field sized courtyard for prayer time. It’s muddy yellow. There are few elaborate Islamic art patterns on the wall, but it’s probably the dirtiest mosque I’ve ever been to (and I’ve been to a bunch). The filth didn’t stop dozens of people from falling asleep on the floor.

Baitul_Mukarram_(Arabic,_بيت_المكرّم;_Bengali,_বায়তুল_মুকাররম;_The_Holy_House).jpg (780×465)

The only other thing of note about the mosque is that it’s the first mosque I’ve been to without a designated location at the entrance to leave your shoes while you enter. Instead, everyone carries their shoes around, and even puts them on the ground while they rest, which kind of defeats the purpose. I’m assuming this is done to avoid theft?

Wikitravel warns travelers to avoid political and labor gatherings because they attract attention. I now understand that sentiment. I passed by a gathering of about a hundred individuals holding communist flags (red with a hammer and sickle). I don’t know what the rally was for, but when I tried to take a picture from across the street, heads turned. When I took a second picture, a quarter of the rally started staring uncomfortably at me, and started to shout. I don’t know what they said, but they didn’t seem happy. I walked away.

Editor’s note: Much more to come from Dhaka and Calcutta, including Matt’s reactions to the recent violence rocking his newly-beloved city. Try not to get hacked to death, Matt. Or hacked at all.

*Editor’s note: Matt’s reactions to Dhaka are usefully compared with David Riesbeck’s earlier discussion here at PoT on cultural difference and offense-giving in Greece.

**Editor’s note: I wonder how Dhaka stacks up against Managua? I’d appreciate comments from readers who’ve been to both cities.

***Editor’s note: Matt is blonde-haired and blue green eyed. I’ll see if I can post a photo at some point. (Done: see above.)

****Editor’s note: Matt is blonde-haired, blue green eyed, and by some many all available accounts, quite good looking.

James Stacey Taylor on local government

I highly recommend reading this blog post by James Stacey Taylor at BHL on local government. I couldn’t agree more with Taylor’s central claim–that local government matters, and that anyone interested in politics should spend some time observing or participating in it. But I think I disagree with the specifically libertarian inference Taylor draws from the experience he describes with the Hopewell, New Jersey Planning Board. (I spent a decade living in the same general vicinity as Taylor, and like him, used to teach at The College of New Jersey. So I have a first-hand sense of the issue he’s describing.)

Taylor seems to infer from his experience that we ought to have less local government rather than more. I agree that when it comes to Planning Boards, we ought to limit their powers. I also agree that local government ought to be more evidence-based and transparent. But I don’t think the general lesson–less government–is the right one.

For one thing, I don’t think Taylor’s experience is really unique to local government. You find the same sort of behavior everywhere, including in the “organic, voluntary” activity he favors. Just imagine that the patch of land he describes was handed over to private developers without the intermediate step of having to pass through the Planning Board. Is there any reason to believe that developers wouldn’t have wanted to create a mini-city in the middle of what is now an open field? If there’s money to be made, they’d do it, and as for unintended consequences, if they could shift the costs to someone else, they’d ignore them and insist on the privacy of their non-existent data.

You might say, “They shouldn’t be allowed to shift the costs to someone else.” Correct. But that requires extensive government enforcement of laws that demand the internalization of externalities. Put it this way: would Taylor advocate the outright abolition of local Planning Boards? Having spent a fair bit of time observing them (in New Jersey), I would say “no.” They need to be put in their place, not abolished.

Second, I wonder whether Taylor would agree that in many cases, the unregulated parts of our lives could use more regulation. Regional differences may be at work here. Taylor lives in west-central New Jersey. I live in northeastern New Jersey. Patterns of life are quite different in the two places. But consider aspects of life that a northeastern Jerseyite would want regulated more tightly by government.

My first pick is traffic. I’ll just assert the proposition: we need more, and stricter, enforcement of traffic laws. We need to force people to slow down, to get off their cell phones while driving, to yield at yield signs, to stop at stop signs (or lights),  to use their turn signals before they turn, to pay tolls, and not to honk their horns for purely expressive reasons.

Second pick: noise ordinances. Most towns have noise ordinances on the books, but many towns treat their noise ordinance as though enforcement of it were a frill or luxury. I see violation of a noise ordinance as a rights-violation fully on par with battery. Just imagine living next to a construction site and being woken up every damn morning by construction activity that’s begun before it’s legally permitted to begin (or that continues well into the night). Or imagine living next to a golf course where the landscapers habitually start work–with mowers and blowers–at 4:45 am, three hours before it’s legally allowed. You call the police and they act as though they have better things to do than enforce the law. My inference: we need more government.

Incidentally, it’s an interesting thing how one is to enforce noise-related violations within a private contract. Right now, my upstairs neighbors are making enough noise to wake the dead. That violates the lease agreement we’ve all signed with the landlord, which involves a promise to one another to keep the noise down. But how do I get that “legally enforceable” promise legally enforced? I could go to the landlord. He’ll ignore me. I don’t have standing to take my neighbors to landlord-tenant court. I’m not a landlord. But the lease’s being violated is a clear-cut rights violation. It’s a breach of contract. What’s happens to rights violations like this? The answer is that in the name of less intrusive government, they go unenforced. But the result is a diminution in some people’s quality of life. (Lovers of quiet are, to paraphrase Ayn Rand, America’s most persecuted minority.)

Third, idiosyncratic example: parking. For most of my adult life, I’ve lived in apartments where parking was tight. In one case, I rented a garage on the rental property so as to guarantee having a spot. In other cases, there was assigned parking. What do you do if someone parks his car in front of your garage (ignoring the NO PARKING sign as though it wasn’t there), or parks in your assigned spot (and you’re not willing to park in someone else’s)? If you complain to your landlord, you’ll be told, reasonably enough, to call the police. But if you call the police, the bizarre answer you will get in New Jersey is: “Sorry, we can’t do anything about it. You’re on private property.”

Pause on the absurdity of that answer. If someone were breaking in to your apartment, and you called 911, it would make no sense for the police to say, “Sorry, we can’t do anything about it. The break-in is taking place on private property.” But I’ve repeatedly had the “sorry, can’t help you” experience when I’ve called the police re parking. As it happens, the police’s “sorry, can’t help you” response involves a misstatement of state law (I’ll spare you the details*), but the fact remains that as written, state law is simply too weak on this issue. It puts too much of the onus on the victim of the rights violation to rectify the situation and not enough on the person who’s blocking one’s garage or parked in one’s assigned spot. Again, my inference: we need more, activist government in the name of rights enforcement.

I would defy any anarcho-capitalist to produce the non-governmental version of the resolution of disputes of the preceding variety. I had the opportunity to see what such attempts at “resolution” might look like when I spent time in the West Bank city of Bethany, which effectively lacks a government. (Officially, it is in Area B under the Oslo Accords, under joint Israel-Palestinian control. But de facto, it lacks a government.) Bethany is practically a controlled science experiment in anarchy. Suffice it to say that things really didn’t turn out the way anarcho-capitalists claim they will. Bethany is a case of “the Wild West” in the Near East–or maybe the Wild West in the Wild West Bank. (Incidentally, I don’t mean to be saddling Taylor with anarcho-capitalism. I have no idea what his views are on that. I just mean to be saddling anarcho-capitalists with Bethany. And yes, it’s that Bethany, the one where Jesus was buried. Burying him was one of the things that the Romans “did for us,” by the way. I’m not sure Jesus would have been buried under anarcho-capitalism.**)

Give me long enough, and I could extend this list pretty much indefinitely.

Anyway, I’m grateful to Taylor for a thoughtful post which broaches some interesting and important issues.

*Postscript, added later: The link in the text goes to the section of New Jersey’s state code governing private property and non-consensual towing. But here is the written response I got from the local Police Department after complaining about their refusal to tow vehicles that were blocking my egress from my garage.

The area of the garages at [name of apartment complex] are private property. The owners of the property basically give authority to building management to maintain the lands. If management feels a vehicle is parked on their property (that does not belong or parked improperly) [they] will call the Police. The Police will issue a summons (management will be called to court as a witness/complainant). The Police cannot tow the vehicle, because it is on private property. Management actually calls for the tow truck. The main road of the complex is considered quasi-public. In this area, the Police can summons and tow.

It’s worth wondering how any of this convoluted legal analysis is supposed to help someone whose garage is blocked but needs to get the car out of it to go to work. I ended up taking a taxi to and from work at a cost of over $100. That happened several times before I made my complaint to the police. In fairness to my local PD, they’ve been pretty responsive about other things, including my insistence that they paint a stop line at an ambiguous intersection so that it was crystal-clear where to stop. From an email to me from the local police chief: “Stop line placed on Watchung roadway. —Chief Goul.” Thanks, Chief.

**Postscript, added later: On second thought, the last two sentences before the asterisk are ridiculous assertions which I’ll leave in the text but now disown. Tradition has it that Jesus was buried by Joseph of Arimethea, who wasn’t in any relevant sense a Roman. I only wrote what I wrote as an excuse to throw Monty Python into the mix, but it’s totally inaccurate and potentially offensive–to Christians, anarcho-capitalists, and above all Christian anarcho-capitalists–so I hereby repent and take it back. I concede: Jesus might well have been buried (and for that matter, crucified) under anarcho-capitalism.

Honking “Go” at a Dangerous Intersection (part 2)

This post, obviously, is a follow-up to part 1, and presupposes what I said there. In post 1, I said I’d discuss some of the philosophical ramifications of the claims I’d made, one set bearing on moral epistemology, one on ethics, one on political philosophy.

This first one is on moral epistemology: I think the ethics of driving, and of traffic generally, is a remarkably fertile and underappreciated source of data for ethical reflection and knowledge. Part of it is that so many of us do so much of it, and anything we spend that much time doing is apt to generate its own ethical issues and reveal something about us. Part of it, though, is that driving is a self-contained mini-universe of activity with its own distinctive aims and norms. Being self-contained, it functions as a kind of naturalistic version of experimental ethics, which is why there’s such a gigantic social scientific literature devoted to it–spanning economics, political science, sociology, and psychology, among other disciplines. Being normatively distinctive, I’m inclined to think that driving is something like a ‘practice’ in the MacIntyrean sense of that term.

By a practice I am going to mean any coherent and complex form of socially established cooperative human activity through which goods internal to that form of activity are realized in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of, that form of activity, with the result that human powers to achieve excellence, and human conceptions of the ends and goods involved, are systematically extended.

Alasdair MacIntyre, After Virtue, 3rd ed. Notre Dame University Press, 1997, p. 187.

Arguably, driving is not ‘cooperative’ in MacIntyre’s intended sense; every driver has his or her own individually-determined route and destination. But we might think of it as cooperative in the sense that good drivers cooperate to maintain a good environment for driving, however individualistic their activities. (So driving has an individualistic ‘common good’.) Again, arguably, driving doesn’t aim exclusively at internal goods–efficiency and safety, I suppose, being “external” to the virtues in MacIntyre’s sense– but it seems to me a defect in MacIntyre’s definition that it lays such weight on that unanalyzed notion (“internal good”). The rest of the definition applies in a fairly straightforward way, however.

One of the distinctive things about driving is the combination of rule-governed and virtue- (or vice-) governed activity it involves. The rules of the road are, in principle, determinate and clear, and the cases in which they’re not are interesting ones for precisely that reason. Further, the rules are an interesting study in defeasibly rigorous norms—Objectivists would say “contextually absolute principles”—that are thoroughly teleological in character. In other words, traffic rules are not typically side-constraints in Nozick’s sense (Anarchy, State, and Utopia, pp. 28-30): pace Nozickian side-constraints, safety, as a goal, is “built into” the constraints. Pace Nozick, however, it doesn’t follow that the goal-oriented character of traffic norms necessarily entails a maximizing structure, or entails some form of utilitarianism (or for that matter, a utilitarianism of rights). I’m not denying that some traffic norms have a maximizing/utilitarian form. It’s possible that many do. My point is that many don’t involve a maximizing/utilitarian structure, or at least need not be interpreted that way, despite not being Nozickian side-constraints.

To continue the original thought: however determinate the rules of the road, however, they leave room for the exercise of the virtues (and vices). There is, in other words, an ethos to good driving that is not reducible to the legal rules of the road. This ethos exhibits a certain degree of cultural relativity, but the relativity is constrained by a conception of moral objectivity that makes it possible to say that certain traffic rules are irrational by any standard, that certain action-types are immoral by any standard, that certain traits are virtues or vices no matter who or where you are, and that certain societies of roads and drivers are just dysfunctional regardless of their self-conception.

Having said that, I’d also say that driving counts as a counterexample to the commonly-held communitarian view that ‘rights’ can be eliminated in favor of, some other norm like the virtues. I would challenge any communitarian (or MacIntyrean, or Hegelian, etc.) to produce a full ethico-politics of driving that omitted reference to individual rights. To make the task more manageable: try coming up with an ethics of driving that does away with the idea of a ‘right of way’.

There’s more to say, but the bottom line is that the normative structure exemplified by (a large proper subset of) traffic rules is not, I think, easily characterizable in contemporary meta-ethical language: unexceptional but within a specified context; unexceptional within a context but defeasible and revisable; rights-oriented but also virtue-oriented and virtue-encouraging; teleological but non-maximizing; culturally relative (within limits) and yet objective. In this way, traffic rules are more like truth-conducive norms of epistemic justification, or the principles of good health, than they are like Nozickian side-constraints or maximizing principles. That fact gives them enormous (but underappreciated) philosophical interest, and makes them a potentially valuable source of moral knowledge (cf. Nozick, Anarchy, footnote to p. 29).

For reasons like the preceding, I’m inclined to think that ‘traffic ethics’ is, or could become, analogous to ‘sports ethics’ in moral philosophy, becoming a kind of sub-topic or -discipline of its own in just the way and for just the reasons that sports ethics has become one. There’s been some discussion of traffic ethics in the professional philosophical literature–mostly, as far as I can tell, involving speed limits, insurance, and issues pertaining to climate change, e.g., the desirability of hybrid or electric cars—but the book that really alerted me to the potential for the idea of an ethics of traffic was Tom Vanderbilt’s 2008 book, Traffic: Why We Drive the Way We Do (and What It Says About Us), a masterpiece of philosophical journalism that doesn’t, for better or worse (and insofar as I remember), make reference to a single work of philosophy. I highly recommend it, and look forward to the day when what it says can better be integrated with work in moral and political philosophy.

More next time on the selfishness (or not) of traffic assholes, rights, and a framework for traffic utopia.

Honking “Go” at a Dangerous Intersection (part 1)

I think most people would agree that it’s not just wrong, but a rights violation, falsely to yell “fire” in a crowded theater. Both the claim and the slogan that goes with it come from Oliver Wendell Holmes’s opinion in the 1919 Supreme Court case, Schenck vs. United States. Why it’s a rights violation is less obvious than the fact that it is. I’ve seen libertarians try to explain why on the grounds that the person engaged in the yelling violates the property rights of the theater owners: he doesn’t own the theater, and violates the property rights of the owners in effect by speaking out of turn. But that can’t be right. I’d insist that a rights violation takes place even if the theater owner himself does the yelling, even if the ownership of the theater is disputed, and even if the theater’s current owner came to have legal title to the theater through malfeasance. It also takes place if the theater was “publicly owned,” and so, didn’t (in my view, at least) have a clear-cut owner. What’s rights violative is the speech act of falsely inducing a panic, regardless of who owns the place where the speech act takes place.

Someone’s falsely yelling “fire” in a crowded theater seems so unlikely an occurrence as to make the whole issue seem academic or legalistic. How often (one might ask) do rights violations of this kind really happen? How often do people falsely yell “fire” in a crowded theater or some equivalent? Actually, I think rights violations of the “falsely yelling fire” variety happen all the time—every day, thousands, possibly hundreds of thousands, of times a day. We don’t notice them, I suppose, because we tend to take them for granted, and we take them for granted because they don’t, overtly speaking, look like falsely yelling “fire” in a crowded theater. What I have in mind is the phenomenon that supplies the title of this post. Think about the asshole (and I’m afraid that’s the only word that fits) who honks his horn at you at a merge, or a yield, or a left turn at a traffic light, urging you into danger in order to suit his desire to get to his destination about 30 seconds faster than he might otherwise. Like the person yelling “fire,” the honking asshole wants to induce panic in you at your expense—or pressure or intimidate you into action—not necessarily for fun, but to save time on his commute.

Those of us who drive a lot in north Jersey encounter this phenomenon (and phenomena like it) every day, often twice a day—on the way to work, and back. Consider two examples, which took place at different but similar merges on my way to work last week.

(1) I was about to merge onto a ramp that leads to the Garden State Parkway. I confronted a yield sign, and a car was in fact coming my way, so I yielded to it. But the driver behind me thought I shouldn’t be yielding. Evidently, “yielding” was not part of her ontology. So she honked good and loud at me, urging me onto the ramp, and straight toward the oncoming car. Had I followed her “advice,” I would (with nearly 100% certainty) have hit the oncoming car, not that this seemed to matter to her. What mattered is that I had yielded to oncoming traffic, wasting a good three seconds of her precious time.

(2) I was about to merge onto Route 46 East. It was morning rush hour, and oncoming traffic coming down the highway was heavy. When it comes to merges of this kind (especially on Route 46), it’s often hard to gauge (and easy to miscalculate) how fast oncoming traffic is coming, partly because no one obeys the speed limit, and partly because the sight lines are terrible (you have to crane your head backward in a tortuous manner to be able to see oncoming traffic). I saw a car in the distance coming my way, and figured that it was both too close and coming too fast to permit a safe merge, so I decided to wait for it to go by before I merged onto the highway. Not good enough for the guy behind me, who obviously thought that I ought to adopt his danger- and speed-happy risk calculus, rush into the highway, and risk an accident so that he could get to his all-important destination twelve seconds faster than my driverly pusillanimity permitted.

As I said before, this sort of thing is commonplace in New Jersey.

Here’s my claim: if it’s a rights violation falsely to yell “fire” in a crowded theater, then episodes (1) and (2) above describe rights violations as well. They may not look like yelling fire in a crowded theater, but causally and normatively, they amount to the same thing. The honking of the horn in both cases is analogous to falsely yelling “fire” in a crowded theater. The danger into which the honker is urging me is analogous to the dangers created by a stampede in a crowded theater. (Incidentally, I don’t think it’s central to Holmes’s claim that the theater be crowded. A half-full theater might do just as well.)

There are differences between the cases, but I think the differences are relatively unimportant, normatively speaking. Honking is not literally a speech act, but it’s close enough to one. Honking is probably not as apt to induce a panicked response as falsely yelling “fire,” but it’s close enough. The person yelling “fire” is doing it out of malice or for fun, whereas the honker is honking out of impatience. But part of the motivation for impatience in the context of driving is the sense of pleasure that the impatient person gets at fast and reckless driving (cf. Plato’s Gorgias on this general phenomenon). When he honks at you, it’s not just because you’re taking up his time per se, but because you constitute an impediment to the literal speed rush he gets when he gets to drive without drivers like you around. So there may turn out to be a partial motivational overlap between the theater and traffic cases as well (not that that really matters to the essential issue).

I’m inclined to think that the probability of serious injury is greater in my examples than in the crowded theater. A panicked stampede is dangerous, but if we’re talking about movie theaters rather than stadiums, I don’t think it’s very likely to be fatal (though I’m guessing here; I don’t really know). By contrast, the traffic accidents I have in mind in (1) and (2) would very likely have been seriously injurious to someone, and could very easily have been fatal. In both the theater and traffic cases, we might perhaps want to put a bit more of a burden on the would-be victims than I so far have, demanding that they display a little more grace under pressure, e.g., checking to see whether there really is a fire in the theater case, or resisting the honker regardless of the pressure induced by the honking in the traffic cases. I’m willing to entertain the possibility that the victims’ panic in both cases is mildly culpable—a failure of independence under pressure. But I don’t think a finding of culpability would change the fact that what we have here are bona fide rights violations.

So I’d conclude that the theater and traffic cases are sufficiently similar to justify describing them as the same kind of act, giving them the same normative status, and (to some extent) treating them the same way. In part 2 of this post, I want to discuss some of the philosophical ramifications of this claim. One set has to do with the relation between egoism and asshole behavior. Another set has to do with rights-violations and law enforcement. A third set has to do with traffic as a source of moral knowledge.

Postscript, February 14, 2015: This article offers useful substantiation of the attitude I describe in the text, though in a slightly different context–dangerous railroad crossings in the New York-New Jersey metro area. This brief passage tells the whole tale:

The less expensive safety measures — automatic gates, lights, bells and signs — are largely in place in the New York region. A challenge is creating crossings that can overcome the lesser impulses of human nature in a part of the country where many people do not see patience as a virtue.

In Brentwood, N.Y., on Monday, a couple on foot watched as the safety gate at the Washington Avenue crossing, one of the most dangerous in the region, lowered in front of them, its bells sounding and lights flashing. After one Long Island Rail Road train passed through, heading east, the man and woman ducked underneath the crossing gate. The man glanced toward the train receding in the distance and suddenly jumped back.

“There’s another train coming!” he yelled.

The woman did not break stride as a westbound train barreled through, missing her by a few feet. “I’ve lived here long enough to know when not to do it,” said the woman, who declined to give her name. ….

“I sit there in awe, I hold my breath watching them. I think, ‘Oh my God, these people are risking too much,’ ” said Cecilia Vaughn, 48, a medical assistant who works near the Washington Avenue crossing.

It’s bad enough when they risk too much with their own lives. But the truth is that they have no compunction risking too much with the lives of others. I sometimes wonder whether the very dangerousness of our roads facilitates risk-impulsiveness: like the soldier who hasn’t yet been shot on the battlefield, the driver or pedestrian who hasn’t yet been killed on the road regards herself as invincible exception to the laws of physics–until the laws of physics demonstrate otherwise.

Postscript 2, February 20, 2015: In case you thought I was exaggerating about New Jersey’s roads and traffic, here’s more substantiation of my claims, from an aptly-titled series of articles from the January 2015 issue of New Jersey Monthly: “Why New Jersey’s Roads Suck.” Unfortunately it’s behind a paywall, but a very informative read if you’re willing to plunk the $5 to read it. I highly advise reading it, if you’re from the NY-NJ Metro area: very gratifying to have one’s beliefs validated!