Morality, Justice,
and Judicial Moralism

The worst edict that can possibly be imagined...An edict that permits liberty of conscience, the worst thing in the world.

Pope Clement VIII on the Edict of Nantes, 1598, by which King Henry IV of France declared that French Protestants, the Huguenots, were (mostly) free to practice their religion. Revoked by King Louis XIV in 1685.


We cannot be held responsible beyond our strength and means, since the resulting events are quite outside of our control and, in fact, we have power over nothing except our will; which is the basis upon which all rules concerning man's duty must of necessity be founded.

Michel de Montaigne, Essays, "That our actions should be judged by our intentions," Book One, Chapter 7 [1580, translated by J.M. Cohen, Penguin, 1958, 1993, p.25]


Whenever the offense inspires less horror than the punishment, the rigor of penal law is obliged to give way to the common feelings of mankind.

Edward Gibbon


...and surely it is better for the world that men should be right from wrong motives than that they would do wrong with the best intentions. What concerns society is conduct, not opinion: if only our actions are just and good, it matters not a straw to others whether our opinions are mistaken.

Sir James Frazer, Psyche's Task [1909]


"...and in daily contact with her without feeling a passionate regard for her. Do you blame me, Mr. Holmes?"

"I do not blame you for feeling it. I should blame you if you expressed it, since this young lady was in a sense under your protection."

Sherlock Holmes, "The Problem of Thor Bridge", The Case Book of Sherlock Holmes [Sir Arthur Conan Doyle, 1927]


The crucial role of self-exaltation underlies the way that those with opposing opinions are viewed. It is not sufficient, for example, to depict those who believe in preserving peace through military deterrence as mistaken, factually incorrect, illogical in their analysis, or dangerous in their conclusions. All of those things, even if true, would still leave them on the same moral plane as the anointed visionaries and would leave both subject to the same requirements of evidence and logic, as their arguments are laid before others to decide. What is necessary, from the standpoint of self-exaltation, is to depict proponents of military detererence as not "really" being for peace, as being either bloodthirsty or acting as venal representatives of special interests who desire war for their own ends.

Thomas Sowell, The Quest for Cosmic Justice [The Free Press, 1999, pp. 138-139]


If there were a modern Spanish Inquisition in America today, it wouldn't be Bob Jones rounding up Catholics. It would be liberals rounding up right-wingers and putting them on trial for hate crimes. The liberal Torquemadas would be smug and angry and self-righteous. And when they were done, they would proudly announce they had finally banished intolerance.

Ann Coulter, Slander, Liberal Lies About the American Right [Crown Publishers, 2002, p.196]


It follows that, as a historian has very wittily been called an inverted prophet, the professor of law is the inverted moralist, and therefore even jurisprudence in the proper sense, i.e., the doctrine of the rights that may be asserted, is inverted morality, in the chapter where it teaches the right that are not to be violated. The concept of wrong and of its negation, right, which is originally moral, become juridical by shifting the starting-point from the active to the passive side, and hence by inversion. This, together with Kant's theory of law, which very falsely derives from his categorical imperative the foundation of the State as a moral duty, has even in quite recent times occasionally been the cause of that very strange error, that the State is an institution for promoting morality, that it results from the endreavour to achieve this, and that it is accordingly directed against egoism.

Arthur Schopenhauer, The World as Will and Representation, Volume I [E.F.J. Payne translation, 1958, Dover Publications, 1966, p.345]

Morality can be distinguished from law or from justice according to the way in which the latter is publicly enforced and sanctioned through the power of the state, while the former is regarded as a private matter where wrongs are to the moral discredit of a person but not such as to allow legal recourse for those wronged. Complaints are often made about the absence of such a distinction, that virtue or morality cannot be or ought not be legislated, or about its presence, that the decline of private morality calls for a public and legal remedy. The distinction is real enough, and its presence reveals another boundary between polynomic domains of value.

The difference between morality and justice comes not from the difference between actions and consequences (as between morality and ideal or euergetic ethics) but from the difference between motives and actions. As Kant noted, the worth of moral action is in the intention, not in what is actually done. The imperative of morality is first of all to act with good will. Even the best of good will, however, does not necessarily produce right action -- the saying is that the path to hell is paved with good intentions. And even ill will does not necessarily produce wrong action -- it is really an ad hominem fallacy to evaluate an action on the basis of an agent's motive.

The estimation of justice does not primarily concern intentions but what actually is done. There is no breach of justice unless some wrong of negligence, violence, or fraud has been committed (in law the actus reus). Intention then may become an issue in judging the culpability or severity of the wrong (the mens rea), as between various degrees of murder, where intention, malice, and forethought progressively increase the severity of the crime (to voluntary manslaughter, second degree murder, and first degree murder, respectively). If no wrong is committed, then it is not an issue of justice and motives are irrelevant.

Even undoubted wrongs of action may be "merely" moral if they are not very severe or are intrinsically difficult to prove: willful breach of an informal, oral promise for no good reason will always be a moral wrong, but only if some financial loss (or damage to public standing) or physical (or even severe enough psychological) injury results will it be a breach of an actionable "oral contract" and so a judicial wrong. There are legal rules about the factors (such as the presence of a "consideration") that must be involved if an enforceable contract is judged to exist. Breach of promise will always be morally actionable in the sense of voiced moral reproach or damage to personal relationships.

ETHICS
MORALITYEuergetic Ethics, the good and the bad: non-moral worth in human life, the good of teleological ethics, the worth and meaning of life -- things good-for-us: Hortatives --exhortations
WILLMorality of actions, right and wrong: ethics of justice; evaluation of actions in their own right; causes of judicial penalty and retribution: Imperatives -- commands
Morality of intentions, good and ill will: ethics of intention and virtue; moral evaluation of intentions; "mere" morality: Imperatives -- commands
,
kind
,
right
,
good
veracious, honest, upright righteous, good good, beautiful, pretty
Benevolence Right Good

Graphic Version of Table

The ultimate moral evaluation of an action concerns the intention. Many actions innocent in themselves may be immoral because of the motive. That motive may be difficult for other persons to know. It may even be impossible for others to know: thus the emphasis (as in the example cited by Jesus of adultery committed in the heart -- Matthew 5:27) is that morality is morality even if wrongs are known only to the agent (and to God). The moral sanction of religion, therefore, is a much different matter than the moral sanction of law. The right of privacy (and the right against self-incrimination, where a judicial wrong has been committed and the state must prove culpable motive) protects the individual's self-knowledge of motive from the law and the state. Individuals are properly at legal liberty to pursue actions that are not judicial wrongs for good reasons, bad reasons, or no reasons; and the morality of those actions is a private, personal matter, or a matter of interpersonal judgment on a level of "mere" morality.

The absence of a distinction between morality and justice is a kind of moralism. The principle that all moral wrongs should be legally sanctioned as judicial wrongs, erasing the distinction between morality and justice, may be called judicial moralism. Usually this means generalizing the morality of intention into the morality of action rather than the opposite, which would simply evaluate actions as right or wrong, without qualifying the judgment by any consideration of motive or intention. The fallacy of overgeneralized intention will be examined below.

First, the latter move, the generalization of actions into all of morality, does happen.
MORALITY=ACTIONS
judicial moralism
de-moralized
WILL
Morality, right and wrong:
justice; evaluation of actions;
causes of judicial penalty and
retribution
[intentions and
motives do not
count]
Imperatives -- commands
In tort law it is called "strict liability," and some legal scholars, including Richard Epstein, believe all torts should be interpreted according to strict liability, eliminating the need to prove negligence, which otherwise is necessary to prove a tort (i.e. a civil wrong that is not the result of a breach of contract). This is not right. But what is much worse and more dangerous is that strict liability would also make things much easier for prosecutors in criminal cases; and it is now becoming common for laws to be passed that ignore motives and intentions -- the classical mens rea, the "guilty" or "actionable" mind. Thus, "money laundering" laws, which require reporting to the government the transfers of certain amounts of cash or bearer financial instruments, although supposedly written to catch drug dealers and their agents, are typically enforced against innocent people who are either ignorant of such an obscure law or who do not believe their financial privacy in the course of innocent transactions is any of the government's business. But it doesn't matter how innocent the money or the motives are. This trend in criminal law is, of course, a monstrous and despicable act of tyranny and injustice.

Nevertheless, in 2010 it has become common enough, especially in Federal law, that The Economist has taken note of it:

In many [federal] criminal cases, the common-law requirement that a defendant must have a mens rea (i.e. he must or should know that he is doing wrong) has been weakened or erased. ["Too many laws, too many prisoners," July 24th-30th 2010, p.28]

Even my students often used to know the ancient legal principle, "No crime without criminal intent." The principle in Latin is:  Actus non facit reum, nisi mens sit rea, "The act does not make guilt [reum], unless there is a guilty [rea] mind." But now federal judges seem to be ignorant of this. Since they cannot actually be ignorant of it, they willfully fail to employ the tools the law provides to combat the unjust laws that many of them know are enforced through their own courts. The whole notion of "strict liability crimes" is improper and unjust.

On 27 September 2011 The Wall Street Journal featured a long article on the erosion of the mens rea principle of justice with a front page article, "As Federal Crime List Grows, Threshold of Guilt Declines." The continuation of the column on page 12 was headlined, "Age-Old Legal Principle Declines." The Journal says, "Lawmakers on both sides of the aisle worry about the weakening of mens rea." However, this hasn't prevented Congress from continuing to pass laws that are defective in this respect, or prevented the Courts from upholding them. One Court ruled that "knowing" conduct in a firearms case simply meant the defendant "knew" he had the firearms, not that it was illegal for him to possess them. This is pure sophistry, apparently from judges willing to void traditional principles of justice just so the government can create criminals out of people who have insensibly run afoul of a vast and incomprehensible United States Code (or simply the obscure regulations published in the infinite pages of the Federal Register). The Journal article, however, implied rather than stated that this trend is not simply contrary to an "age-old legal principle," but that it is productive of multiple cases of grotesque injustice. This could well be one of the fruits of the judicial positivism (a form of moral heteronomy) that is taught in the law schools, that (1) there is no law but "positive" (i.e. statutory) law, and (2) "justice" is the practice of the courts, i.e. whatever it is that the courts happen do.

Lest anyone think that this is only a problem in the United States, and that The Economist can look down on these Yankee follies from the superior perspective of British law, the same trend is evident in its own land, the place of the very origin of the Common Law:

In 2009 a former soldier, Paul Clarke, found a bag in his garden containing a shotgun. He brought it to the [British] police station and was immediately handcuffed and charged with possession of the gun. At his trial the judge noted: "In law there is no dispute that Mr. Clarke has no defense to this charge. The intention of anybody possessing a firearm is irrelevant." Mr. Clarke was sentenced to five years in prison. A public outcry eventually won his release. ["Two Cautionary Tales of Gun Control," Joyce Lee Malcolm, The Wall Street Journal, 27 December 2012]

Since "in law" Mr. Clarke did have a defense, namely the absence of mens rea, we must consider what sort of fool or tool is this judge. But we do owe him credit for a clear statement of the fallacy that he promulgates, namely that "the intention of anybody possessing a firearm is irrelevant." This is strict liability with a vengeance, in a case where "possession" has itself been interpreted in a way that defies common sense. Perhaps the police cannot be expected to exercise common sense, but it is certainly the office of a competent judge to supply any deficiency. Instead, this British judge is morally and legally incompetent, in line with something we see more of in law these days, which is the mindless application of senseless rules, by people who often seem to be proud and self-righteous about what they are doing.

Judges cannot plead that their "hands are tied" by the present state of law, for they have multiple levels of recourse, certainly in American law, when dealing with injustices like "strict liability crimes":

  1. Bite the bullet and rule that the law is unconstitutional.
  2. Rule that the law cannot be enforced without taking the mens rea into account.
  3. Hand down a directed verdict of not guilty.
  4. Dismiss the case with prejudice, so that it cannot be refiled.
  5. Instruct the Jury that it has the power to return a verdict of not guilty if they think that the law violates a just requirement of mens rea.
  6. Dismiss the case without prejudice, which means it could be refiled. And,
  7. Recuse himself, so that the case will pass to another judge.

If a judge is fearful for his career, the first two or three, or even four, alternatives may frighten him. A judicial conduct authority may sanction him. In fiction at least, we sometimes see the first alternative, such as when the beloved Ray Walston (19142001), playing Judge Henry Bone on the television series Picket Fences (1992-1996), was willing to rule on the constitutionality of laws that had already been accepted as constitutional by the Courts. The fearful judge (which is what we expect from the judge as bureaucrat), however, can always take the sixth alternative and recuse himself without expalantion. The last I heard, there were at least 50 federal judges refusing to take non-violent drug cases.

Unfortunately, what is more common these days is that judges enter into the spirit of tyranny and politically motivated revenge, regardless of the requirements or sound traditions of justice or even conscience. They are willing to distort law, righteousness, and justice in order to help the prosecution, behind which there is a political antipathy towards actions that are not wrongful, sometimes on the pretext that destroying people's lives may be a "social good."

Judicial Moralism as the generalization of intentions into all of morality, although just as vicious as the "strict liability" generalization of actions over intentions, has historically been much more common. Religions have typically been guilty of such moralism, and have controlled or pressured political authorities to enforce it; but there has been no lack of purely secular ideologies, from the French Revolution to Communism to present Political Correctness, that have tried to enforce their views as a political program apart from any religion.
MORALITY=INTENTIONS
judicial moralism
WILL=MORALITY[actions
de-
moral-
ized]
Morality, good and ill will:
intention and virtue; all moral
evaluation only of intentions
Moralism of
belief:
Certain
things must
be believed
Moralism of
feeling:
Certain
feelings are
forbidden or
required
Imperatives -- commands
Judicial moralism thus tends to be a characteristic of both religious moralism and political moralism. Furthermore, each characteristically becomes a way of morally judging, not just actions and even intentions, but beliefs. That is because good or bad intentions always go with beliefs about what is good or bad. Since judicial moralism collapses intention and act, the actual requirement of justice to act justly is transferred to the mental state. What is the proper moral issue in that state is good or bad will; but for judicial moralism more is required than that, since good will doesn't have anything like the content, structure, or definiteness of a good or bad act. Consequently, judicial moralism focuses on the beliefs that condition the will, something as definite in the mental state as the act was externally. Thus the moral requirement becomes one of correct belief -- the actual meaning of the Greek word orthodoxía -- orthodoxy -- as the sign of good will. Incorrect belief then obviously signifies ill will, and all the commendation and reward or condemnation and punishment that should only focus on good or bad deeds instead becomes focused on these correct or incorrect beliefs. And we all know how heresy is worse than the simple disbelief -- since the former is a kind of fraud, while the latter is only ignorance -- so those who knowingly defy orthodoxy should be punished severely indeed.

In denying judicial moralism we affirm that it cannot be a moral duty to believe any particular propositions. Morality requires us to mean well and to do what is right, but belief in good will and good faith is about truth, which has its own standards of evidence and justification, not about meaning well or doing anything. As Thomas Jefferson said, "The opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds." It cannot be a duty to believe what is true because whatever is believed is already believed to be true, because the evidence, experience, or authority upon which one's beliefs are based are reasonably to be changed, not by some independent act of moral will, but by demonstrably better evidence, experience, or authority, and because it is always a good question just what is true and just what is better evidence, experience, and authority. As Socrates says, "for clearly, if I learn better, I shall cease to do what I am doing unwilling" [Apology, 26a]. The only thing that can be a duty is to try and find out what is true and then to be steadfast in the truth as that is understood; but that very steadfastness may be perceived as wickedness by others who are differently persuaded by their understanding. It was because of judicial moralism that the Catholic Church argued it was a moral duty for Galileo to confess that the earth was at the center of the universe, why Pope Clement VIII abhored both the Edict of Nantes (see above) and the whole idea of "liberty of conscience," and how even today some people argue against the Darwinian theory of evolution simply because they think "survival of the fittest" makes for unacceptable moral consequences in society.

Furthermore, in denying judicial moralism, not only cannot we say that it is a moral duty to believe propositions about possible matters of fact that are open to question and to rational or empirical testing or determination, but we cannot even say it is a moral duty to believe propositions about matters of value or about the nature or content of morality itself. Thus, although the moral consequences of the views of Friedrich Nietzsche are very bad, he does not seem to have been a bad person himself and cannot be morally condemned just for thinking mistaken thoughts. Martin Heidegger, of course, is another matter, since his actions as well as his thoughts are at issue. A person who means well and whose actions are above reproach but who professes moral views that seem to us mistaken is not to be punished but to be persuaded. That is our duty. We may fear that they will end up doing wrong because of their beliefs, but if only beliefs are in question, the only remedy is the truth as we understand it. If we cannot persuade them, we must even be sensible of the possibility that we are wrong rather than they. If our real duty is to find out the truth, then intellectual complacency and self-righteousness are moral wrongs of negligence -- and anyone who thinks that they are less likely suffer from those failings than their ideological opponents is a fool.

If we morally or legally condemn beliefs that are held in good faith and accompany no judicial wrongs, we have created a category of "thought crimes."
MORALITY=INTENTIONS
judicial moralism
WILL=MORALITY[actions
de-
moral-
ized]
Morality, good and ill will:
intention and virtue; all moral
evaluation only of intentions
Moralism of
belief:
Certain
things must
be believed:
thought
crimes
Moralism of
feeling:
Certain
feelings are
forbidden or
required
Imperatives -- commands
That is an inevitable result of judicial moralism; and in its terms, loss of freedom of speech is a small thing in comparison to loss of freedom of thought. It is not surprising that the expression "thought crime" began in the context of severe and totalitarian political moralism, although the idea is as old as the concept of heresy. And we don't need to read much history to find that heretics were always regarded as the most depraved and vicious of people, although historically they often seem less cruel and vicious than their persecutors. Interestingly, Jesus says "You will know them [the false prophets] by their fruits" (Matthew 7:16): not by their words, but by their deeds (as he continues at 7:21). The tendency, indeed, of judicial moralism is not only to moralize and legalize beliefs but to demoralize actions: the deed becomes relatively unimportant besides the willingness to confess, affirm, and witness to orthodoxy, whether religious or political. Someone of "sound views" becomes preferable even to someone who refrains from wrong. As Paul Johnson says of Lenin in Modern Times [HarperPerennial, 1991], "He judged men not by their moral qualities but by their views, or rather the degree to which they accepted his" [p.51]. Thus George Orwell wrote:

Actions are held good or bad, not on their own merits but according to who does them, and there is almost no kind of outrage -- torture, the use of hostages, forced labor, mass deportations, imprisonment without trial, forgery, assassinations, the bombing of civilians -- which does not change its moral color when it is committed by "our" side. [Quoted by Paul Hollander, The Survival of the Adversary Culture, Transaction Publishers, 1991, p. 123]

The principal justification for attacking beliefs instead of actions and for making rules against good faith speech, when laws already exist against violence, vandalism, etc. (judicial wrongs), is that such beliefs cause such actions. We must get at the root of things, after all, the argument might go. But besides the moralism of such an approach, to morally condemn beliefs as such without addressing their claim to truth, this approach is deeply dehumanizing and irresponsible. That people act from certain causes is a judgment made by science but not normally by morality, since morality holds persons responsible for their actions and intentions regardless of the causes, unless they are to be judged actually incompetent. The insane act out of causes that relieve them of moral responsibility. It is then particularly paradoxical to morally condemn someone for having acted on the basis of a cause that nevertheless is to be treated more like a disease or a tumor to be excised, through authoritative therapy (re-education, etc.), than like an adult, competent belief to be answered with rational argument and knowledge. Reducing people to the puppets of causation not only completely erases their moral dignity, autonomy, and rationality but substitutes an authoritarian, totalitarian source of standards that in principle must be accepted without argument or objection.

The category of thought crime has recently been revived in American colleges and universities in the "political correctness" movement, whose major project has been to write and enforce speech codes (which, for public institutions, are then typically thrown out by the courts as unconstitutional). The public justification for such codes has been to fight hate crimes and to punish hate related insults, harassment, assaults, vandalism, etc. The motive for such codes and the practice of their application, however, often seem to amount to simple hostility towards opposing political beliefs. They embody an ideological animus (founded in judicial moralism) that is willing to vilify and stigmatize even reasonably argued political opinions, and people, as racist, sexist, homophobic (expanding limitlessly into a circus of political crimes, "classism," "lookism," "sizeism," "speciesism," "orientalism," etc.). In short, they seem to seek the criminalization of mere beliefs and the people who may express them in good will and good faith. In that project terms like "racism" and "sexism" become no more than chanted slogans used for smearing opponents and for eliminating the need for argument or debate, since of course no one need take the views or persons of racists or sexists, etc. seriously. They deserve, like neo-Nazis and Klansmen, to be driven out of honest venues (like colleges, universities, and the media) and prosecuted for the damage their ideas do. The only escape from such condemnations is to become "re-educated" or "sensitized" and affirm the politically correct line without reservations. The political correctness movement, consequently, represents the continuing political and legal threat of judicial moralism to free thought and free speech. Fortunately, even most politicians (even Democrats -- although this may have changed) recognize the totalitarian origins of this movement, although supposedly educated academics often don't.

Similar to the judicial moralism of commanding or condemning beliefs is a judicial moralism of commanding or condemning feelings. It can be no moral duty to feel a certain way since feelings are not voluntary and cannot be "corrected" through an act of will. Thus, Aristotle said, "Again, we are not angry or afraid from choice, but the virtues are certain modes of choice, or at all events involve choice" [Nicomachean Ethics, Book II, v, 4, Loeb Classical Library, Harvard U. Press, 1926-1982, pp.88-89].
MORALITY=INTENTIONS
judicial moralism
WILL=MORALITY[actions
de-
moral-
ized]
Morality, good and ill will:
intention and virtue; all moral
evaluation only of intentions
Moralism of
belief:
Certain
things must
be believed:
thought
crimes
Moralism of
feeling:
Certain
feelings are
forbidden or
required:
"hate"
crimes
Imperatives -- commands
Nevertheless, in this, traditional morality often misleads us. We find both Leviticus (19:18) and Jesus commanding love of neighbors and enemies (Matthew 5:44), and Jesus forbidding anger (Matthew 5:22). Confucius also simply commands, "Love others" (Analects XII 22:1). Not only is this basically impossible but it leads to a inappropriate guilt, when it cannot be done, that is morally damaging. The genuine moral concern about anger, as in our concern about someone's temper, is if it leads to uncontrolled behavior, i.e. violence and judicial wrongs of action. All sorts of feelings -- anger, liking, dislike, love, sympathy, hatred -- can go with either good intention and right action or bad intention and wrong action. In other words, the imperative of morality is to mean to deal justly and to do so, regardless of one's feelings. This is sometimes confused by the way that "hatred" and "ill will" can be equated with meaning to do harm and so with bad moral intention. However, few would evaluate their hatred or ill will towards Hitler or Stalin as involving an immoral intention (although according to Jesus it actually would). Our assumption is that evil persons merit hatred and ill will and that this is not to morally wrong them or maintain an immoral intention. Our hatred is because they deserve harm as just retribution for their wrongful actions (although this again violates Jesus's injunction not to judge, Matthew 7:1). Intending them harm is therefore simply to desire retributive justice. Since feelings actually are caused, often by certain beliefs, condemnation of feelings also becomes a way of indirectly condemning beliefs. Treating the "causes" of hatred thus can become the authoritarian "re-education" of political thought crimes.

Moralizing feelings may become a problem when we identify certain acts of violence, vandalism, etc. as "hate crimes." "Hate crimes" form a legitimate moral and legal category, but the proper formulation of the matter is obscured by the way in which it is usually presented and discussed. In any crime malice can be an aggravating factor. This is just what distinguishes murder from manslaughter. A "hate crime," however, is one where some specific source of malice is of concern, namely, hatred based on ethnicity, race, religion, national origin, or differences of sex or sexual preference. Malice for those reasons, and not for reasons of hatred of individuals, is now often considered particularly aggravating as much for reasons for social policy as for reasons of moral culpability. The laws are especially intended to discourage ethnic, racial, etc. hatred because this is considered a social problem, and because of the modern confusion that private individuals can violate the "civil rights" of others ("hate crime" laws are often proposed as federal "civil rights" legislation). But if the purpose of such laws is thus some social end, it is questionable whether it is in accord with justice to magnify a punishment for some purpose other than just retribution. It is also questionable whether increased punishments will effectively serve their social purpose any more than draconian punishments ever have. After all, it is actually an argument against the death penalty that even the prospect of death does not really deter murderers [note].

While we may very well see malice motivated by hatreds as a morally and judicially aggravating condition in crimes and use a principle that there are special "hate crimes," if some "hates" are singled out over others for political reasons, this puts us onto ground perilously fraught with the possibility of judicial moralism. The abuse of this principle is easy, especially when the rhetorical sophistry is always handy that criticism of the category of "hate crimes" is the same as condoning the wrongful acts of violence, vandalism, etc. that it concerns. On the other hand, what we are dealing with in hate crimes is really not a matter of "hate" at all. The moral violation of attacking someone because of their ethnic or racial identity is actually not a violation of right based on belief or feeling. Calling such violations "hate crimes" introduces a misdirection into our analysis. For the right perspective, we must consider some circumstances under which the belief and the hatred are justified, as in the feelings that Jews might have for Germans, Armenians for Turks, Irish for British, Chinese for Japanese, Lithuanians for Russians, Sikhs for Moslems and Hindus, etc., all based on real historical crimes that resulted in the deaths of many of the aggrieved groups. Germans really did kill Jews, Turks Armenians, Japanese Chinese, etc. So does that mean that it is morally acceptable, as retribution, that Jews could just start killing Germans, and so forth? Of course not. Members of a group of people, of any kind, are not responsible for crimes committed by some other members of the group. While we may see a group, in a general way, committing crimes, those responsible for the crimes are those who actually perpetrate them, not others who do not perpetrate them, especially when the non-perpetrators may be members of the group in the distant future. The moral principle, then, is that the retributions of justice, whether formal or irregular, can only be visited on actual responsible individual perpetrators. A "hate crime" is consequently not an error of hate or of belief but a moral error of singling out some individual as worthy of attack, not because of some wrong he is known to have done himself, but because of some wrong some other member or members of his group are believed to have done.

If that is so, then it should be clear that the remedy for "hate crimes" cannot always be to try and get people to stop hating each other. No amount of education is going to get Armenians to stop hating the Turks. Indeed, real education is liable to intensify the hatred, once the facts of history are known, since people tend to forget the details of crimes in the past. Thus we should be suspicious when we see that with the magnified punishments for hate crimes (which to an extent may be appropriate for the fundamental nature of the moral error involved) also go programs designed to eliminate ethnic, racial, etc. hatreds through education, sensitivity training, etc. The assumption is that simply knowing enough about other ethnic groups, or life-styles, etc., will remove the conflicts. It may well be that in cases of baseless bigotry knowledge of the simple truth will make a difference, but to generalize this to all cases of hatreds and conflict involves incredibly naive and ahistorical assumptions; and it clearly involves a formulation of the category of hate crimes that heads it in the direction of judicial moralism of belief and of feeling, instead of in the proper direction of respect for innocent individuals. Half the trouble in the world today seems to involve peoples who have lived with each other for centuries and certainly know each other all too well: Catholic and Protestant Irish, Moslem and Hindu Indians, Greek and Turkish Cypriots, Serbs and Croats, Christian and Moslem Bosnians, Armenians and Azeris, Tamils and Sinhalese, Basques and Spanish, Tibetans and Chinese, Eritreans and Ethiopians, etc. Where we find unity among diverse people, it is always because of some overriding loyalty: Malcolm X found blacks and whites at peace together on the pilgrimage to Mecca because of the cultural and religious unity of Islâm. Moslem pilgrims even wear the same clothes.

But today, it is often claimed that harmony results from emphasizing differences and diversity and even denying that there is or ought to be anything that imposes some overall ("hegemonic") unity. This is an ignorant prescription for nothing but increasing conflict and hatred, wherever it is applied. Differences breed aesthetic variety, and aesthetic variety (even apart from histories of crime and conflict) breeds likes and dislikes, even loves and hates. That is the aesthetic truth of human life and is perfectly innocent in itself. Those dislikes, etc. can only be suppressed by the most ferocious anaesthetic or judicial moralism, which will persuade few and have little enough effect in any case. Even without serious issues of conflict, culture and "lifestyle" will always be inevitable hinges of aesthetic preference. The unity, in turn, which is the only hope of peace and justice, is the principle of morality itself, the respect for the autonomy of others regardless of likes and dislikes, loves and hates, cultural or ethnic identity, or personal practices. The project of morality is to clearly distinguish those things, not to judicially moralize the aesthetic dimension of feelings and preferences. To appreciate the beauty of another culture can be a major hortative good, but it cannot be a moral imperative. Confusing justice with aesthetics all too easily has the unintended consequence, not of morally abolishing hatred, but of moralizing hatred into fanatical and violent self-righteousness.

But if Jews or Armenians do not have the right to attack Germans or Turks, what if they do not wish to associate with them? Well, we certainly can't make them. Or can we? What if Jews or Armenians own businesses and don't want to hire or serve Germans or Turks? Right now they could be sued for discriminating according to "national origin." Thus our laws as written actually try to force people to associate with each other even if they don't want to do so and even if their reasons for not wanting to are based on major traumas of history. We might say that they don't have any reason to hate specific individual Germans or Turks any more than they have any right to attack them in retribution for the wrongs of history, but that is precisely to commit the fallacy of judicial moralism of feeling: people are going to feel the way they feel for whatever reason, and ill feelings for a group are inevitably going to tend to be applied to all members of the group. Morality can only forbid the action, not the feeling; and the actions that can be forbidden are only the ones causing harm through violence, coercion, fraud, or negligence, not ones merely of a refusal to deal with or associate with someone. Freedom of association lessens conflicts by allowing people who don't like each other to separate. Forcing people to associate out of the notion that this is going to make them learn to like each other is not only tyrannical but a formula for civil strife. In small, intensely controlled contexts, as in the military, this may work to an extent; but we often see how conflict can still explode even under military discipline -- and it is a very bad sign when political activists take comfort that society could be reformed if subjected to something very much like military discipline.

The passion and violence that accompany religious and political moralism, and especially their dimension as judicial moralism of belief and feeling, are as much with us as ever. The saying is that politics and religion are not things people should discuss in polite company, but that simply is the result of the difficulty we have in separating the evaluation of the truth of beliefs from value judgments about moral or judicial worth. Here we can only labor to avoid judicial moralism and to attempt to review with some dispassion the issues we consider, remembering that beliefs and propositions must be answered with reason and evidence, not with self-righteous moral condemnation.

One category of "hate crimes" that the principle offered does not cover is that involving "sexual preference." Crimes against homosexuals cannot be said to involve an error of thinking that the individuals are not engaged in the practices that the group is thought to be guilty of, since practicing homosexuals indeed engage in homosexual practices. Since the Bible itself mandates the killing of male homosexuals and it is regarded by very many people as a proper source of morality, even of law, one cannot say that all "gay bashing" is done in bad faith or merely out of malice. That the Bible is not a proper source of secular law should now be obvious, but it is not to all persons of good will; and as philosophers cannot agree on what the proper source of secular law and morality is (many asserting that there is no proper source), the case for Biblical morality would tend to be strengthened in the eyes of many.

If crimes against homosexuals do not qualify as "hate crimes," does this mean they are simply to be allowed? Of course not. The idea of "hate crimes" merely addes an aggrevating factor to something that is already a crime. When a young homosexual student, Matthew Shepard, was murdered in Wyoming, in October 1998, there was a great outcry for more "hate crime" legislation -- and political demonstrations which, of course, only influence politicians, not murderers -- but since such a murder in Wyoming was already a capital offense, it is not clear what kind of added punishment a hate crime law would add to the sentences of the perpetrators. Many in favor of vast "hate crime" legislation are themselves opposed to the death penalty, and they certainly would never consider adding, for instance, torture to any other kind of capital or prison sentence.

The distortion this introduces into public discourse is evident in the continuing news coverage given to the Shepard case (plays and movies have even been produced about it), while the September 1999 bondage rape and murder of 13-year-old Jesse Dirkhising by two homosexual men in Arkansas has received virtually no attention in the national media, except for conservative commentators. Just as the Shepard case was promoted as evidence of such pervasive "homophobia" as to require federal legislation, those persuaded of Biblical morality could easily offer the Dirkhising case as evidence of pervasive crime by homosexuals. Neither view, of course, is true or proper. Local murders do not appear in the national media unless the media think that some national issue is involved. The Shepard case receives national attention, but not the Dirkhising case, because the national press accepts the importance and the political agenda of federal "hate crime" legislation, while not acknowledging the importance of conservative objections to homosexual practices. This is a political bias. The conservative agenda, however misguided, is just as newsworthy as the leftist one that promotes the category of "hate crimes" involving homosexuals. Either both or neither should receive attention in honest news coverage. The disturbing truth is that the Dirkhising case largely has received no coverage because of the national media bias that facts that might reflect negatively on homosexuals should be, not just under-reported, but actually suppressed.

The truth is that in much political and academic thinking "hate crimes" are not really moral offenses at all, which is why few advocates are ever troubled by the status of homosexuality in Biblical morality. Instead, the advocates of hate crime legislation almost always see these as political crimes, not moral crimes. Political crimes do not call for just retribution, but for punishments that are seen as instruments of social engineering and political suppression, meaning that any punishment sufficient to the end is justified. This dimension is also evident in feminism, which itself sees crimes against women as political crimes -- since, for establishment feminism, everything is political. Thus, even a Republican Congress passed the bizarre "Violence Against Women Act" on the principle that crimes against women were federal "civil rights" offenses. Similarly, feminism thinks of crimes against women as themselves "hate crimes," meaning that what is called "hate" is not really an emotion or a feeling at all -- not all battering husbands, muggers, or even rapists, necessarily hate women -- but a politically incorrect "consciousness," calling for the full weight of federal civil rights authority -- or for political demonstrations, the kinds of things ignored by rapists but noticed by legislators. "Hate" becomes merely a codeword for those violating a certain political program. Thus, the popular theory of hate crimes is no longer even an example of possible judicialism moralism, but just a case of a larger political moralism; and as such, it is not surprising that crimes against homosexuals are not seen as problematic, but instead as obvious, candidates for the "hate crime" category.

The potential for misuse of the "hate crime" category has become evident in several recent cases. In one of them, an Idaho man, Lonny Rae, was charged with "malicious harassment," a felony, for using the "N" word. This was after an October 2001 football game between local high schools. The fans of the school that lost became angry at the referees, as losing fans often do. Mr. Rae's wife, Kim, was at the game as a freelance reporter and photographer. Because of the possible controversy about the referees, she took pictures of the referees to go with the story. The referees didn't like that and asked her to stop. One of them, who happened to be black, grabbed her camera and tried to yank it away from her. There was a strap from the camera around her neck, so the camera didn't come away, but the strap left some burns and bruises on her neck. When Mr. Rae was informed about this, he went down to where the referees were going into the locker room and began shouting at the black referee in question, liberally using the "N" word. Since arguably an assault had occurred on his wife, his anger is understandable, even if his choice of vocabulary is less so. There was never physical contact between the two men.

Nevertheless, although no charges were filed for assault against the referee, Mr. Rae ended up charged under the Idaho "malicious harassment" hate crime law, which carries a maximum penalty of five years in prison. Since nothing had happened between the two men except Mr. Rae's speech, the only way such an application of this law, which now has nothing to do with aggravating factors in some independently defined unlawful act, could pass muster as not violating the First Amendment is if it fit in under the Supreme Court's "fighting words" exception. With the provocation of the assault on his wife, however, there is a serious mitigating factor about whatever Mr. Rae might have done while angry. The situation was one in which the aggravation had already occurred. It is therefore fortunate that nothing worse than angry words were involved. The niceties of First Amendment jurisprudence, however, do not seem to have been of concern to the prosecutors, the judge, or the jury. The use of the "bad word" was obviously the offense, all by itself, regardless of the circumstances. In February 2002 the jury, in fact, found Mr. Rae innocent of the "malicious harassment" charge. The judge, however, had suggested that a lesser charge of which he might be guilty could be "misdemeanor assault"; and the jury found Mr. Rae guilty of this. The judge sentenced him to seven days in jail, although jail time for a first such offense is rare. The judge evidently regarded the matter as sufficiently serious to warrant it. So now using a "bad" word is equivalent to an assault -- which is no less than what "critical race theory" legal scholars, like Mari J. Matsuda (Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment, 1993), have seriously proposed.

What is serious is the fact of an assault on free speech and the attendant decriminalization of a physical assault. If Mr. Rae is someone who goes around gratuitously shouting the "N" word at black people, then "harassment" is a description that comes to mind. This situation was nothing of the sort, and the actions of the authorities and the court in penalizing the speech and ignoring the prior physical assault betrays a judgment that political crimes are important while mere violent crimes are not. This, indeed, is the tendency of a politicized jurisprudence slipping over into judicial moralism. Mr. Rae's speech betrayed him to be the sort of person who is intrinsically in the wrong, just because of his attitude, regardless of the nature of the events in question. As George Orwell would have said, he is not on "our" side and so is deserving of punishment as a political criminal.

An even worse case is that of Janice Barton of Michigan, who was overheard in August 1998 using the word "spic" in a private comment to her mother, about a group of people speaking Spanish leaving a restaurant near them. In that group was an off-duty deputy sheriff, who heard the comment and wrote down Barton's license plate number. Two weeks later Barton was arrested for "disorderly conduct," later "insulting conduct," and finally a "hate crime." In this case we have a crime consisting of no more than a bad word, and not even one directed at anyone thus characterized. Barton was actually convicted, despite Supreme Court rulings that the only exception to the First Amendment in such a case would be a use of "fighting words" likely to provoke a "breach of the peace." In November 2002 her conviction was reversed by an appeals court, on the principle that this was "conduct she could not reasonably have known was criminal." Usually, courts hold that "ignorance of the law is no excuse"; but in this case ignorance of the law seems to have been the problem with the deputy sheriff, the prosecutors, the judge, the jury, and the appeals court. What it looks like is that the appeals court knew that the conviction was going to be reversed eventually, and so they wanted a pretext to avoid the embarrassment of the Michigan "hate crime" law, if it allowed this conviction, itself being struck down.

In all cases like these, it becomes more apparent that the tendency of "progressive" legislation is a totalitarian hostility to free speech and "politically incorrect" belief, a program that did not die with Communism in 1991 but lives on in the political left of American universities, law schools, and trendy opinion. The consequences of this are already pervasive in distorted civil rights law.

On 27 April 2011, the BBC reports, "Isle of Wight musician's 'racist' arrest over song":

A musician was arrested after a performance of the 1970s song Kung Fu Fighting at an Isle of Wight bar sparked an alleged racism row with a passer-by.

Simon Ledger, 34, of Shanklin, said he was playing the Carl Douglas hit at the Driftwood bar, Sandown, on Sunday when the man of Chinese origin took offence.

Police said the passer-by claimed he was then "subjected to racial abuse".

Mr Ledger was bailed by police and is expected to be questioned later.

Police said the 32-year-old man was walking past the bar at about 1745 BST when the incident took place.

He contacted officers to make a complaint on the same evening.

Keyboardist Mr Ledger said he was later called and was arrested on suspicion of causing harassment, alarm or distress.

I am perfectly willing to consider the performance of a 1970's Disco song a criminal offense. It would certainly produce "alarm and distress" in me. We see, however, how far free speech has been replaced with thought control in Britain. If Mr. Ledger, perhaps, was gratuitously shouting slurs or insults at the passerby, there may be more to this story. But the prima facie impression it leaves is that Kung Fu Fighting now violates the political (and legal) correctness of racial sensitivity.

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Morality, Justice, and Judicial Moralism; Note

Schopenhauer says:

Thus the law and its fulfilment, namely punishment, are directed essentially to the future, not to the past. This distinguishes punishment from revenge, for revenge is motivated simply by what has happened, and hence by the past as such. All retaliation for wrong by inflicting a pain without any object for the future is revenge, and can have no other purpose than consolation for the suffering one has endured by the sight of the sufferng one has caused in another. Such a thing is wickedness and cruelty, and cannot be ethically justified. Wrong inflicted on me by someone does not in any way entitle me to inflict wrong on him. Retaliation of evil for evil without any further purpose cannot be justified, either morally or otherwise, by any ground of reason, and the jus talionis, set up as an independent, ultimate principle of the right to punish, is meaningless. Therefore, Kant's theory of punishment as mere requital for requital's sake is a thoroughly groundless and perverse view. [The World as Will and Representation, Volume I, §62, p.348 [Dover Publications, 1966, E.F.J. Payne translation, boldface added]

Therefore, Schopenhauer believes that deterrence is the only purpose of punishment that is reasonable and proper.

However, there are circumstances where the dynamic of deterrence in comparison to pure retribution reveals the inadequacy of the former. If the purpose of punishment is deterrence, then clearly the punishment must be sufficient to accomplish that deterrence. This is a different consideration from that of justice alone, where the ancient sense is that the punishment should "fit" the crime, or especially be proportional to the crime. Punishment that is disproportionate to the offense is, as Schopenhauer himself puts it, "wickedness and cruelty." The ancient word for such laws is "draconian."

Edward Gibbon says in an epigraph to this page:

Whenever the offense inspires less horror than the punishment, the rigor of penal law is obliged to give way to the common feelings of mankind.

In most cases that would traditionally be of a criminal nature, there is not much of a problem here. Indeed, in the Code of Hammurabi and in the Bible, the principle of "an eye for an eye, and a tooth for a tooth" provides, not only perfect proportionality, but also what most would think of as fully adequate deterrence. Oddly enough, more of a problem emerges in modern law, much of which is novel and regulatory, despite our general sense that modern law has become more humane and enlightened (since we don't have mutilations, flogging, or drawing and quartering -- at least in Western law). Thus, traditional wrongs are mala in se, "evils in themselves," while the modern state prohibits and criminalizes things that had never been wrongs but that are now regarded as socially or politically undesirable. They are mala prohibita, evils are are simply prohibited, by the power of the State.

Now, since mala prohibita are not natural wrongs and may appear to many people as not very serious, the results of political grandstanding, or positive evils in themselves (such as drug laws that deny pain medication to the sick, or arrest them), we see the dynamic whereby the punishment for them, if it is to really deter, must be magnified. It was not long ago that a person arrested for possession of marijuana in Texas might receive life in prison, while murderers might only get a few years. But this is quite proper, on Schopenhauer's reasoning, if the only possible justification of punishment is deterrence. The punishment must be enough to actually deter. Consequently, Thelma and Louise drove around Texas.

The results, however, are obvious and grotesque injustices, if one's principle is the proportionality of punishment. This reveals that proportionality is a pure principle of retribution and justice, unrelated to deterrence. Schopenhauer has overlooked this. He has also overlooked the deterrent power of revenge, which is evident both on the playground, in gang warfare, and in conditions approaching the "state of nature," such as international relations. If you hurt us, and we hurt you back, perhaps with a punitive magnification, you will be reluctant to try and hurt us again.

What we see in the difference between retribution and deterrence is a typological difference discussed elsewhere. To Kant, the proper motive for moral action is not fear of punishment, but consciousness of duty. Retribution balances wrongs with evils, which is why proportionality is required. This addresses moral duty as something unrelated to consequences. Deterrence converts moral considerations into prudential ones. I will avoid doing wrongs, not because they are wrongs, but because I might get caught and punished. This leaves anyone to reason that the problem there is just avoiding capture and punishment, not avoiding wrong.

Schopenhauer, or anyone else, is free to think of punishment as justified only by deterrence; but such reasoning alone can generate errors, and produce injustices, unless we add the feature of retribution, and proportionality, as purely matters of justice. Also, today, we must consider that regulatory or political prohibitions cannot in general involve punishment more serious than for mala in se. Indeed, they should not be criminal matters at all, unless harms are involved that themselves qualify as mala in se. But, as we see elsewhere on this page (in regard to "strict liablity"), modern jurisprudence, with its dominant positivism, increasingly disregards the most essential features of proper justice.

Of course, if the punishments for violations of a malum prohibitum law are not sufficient to deter the widespread disregard of the law, the legislator, judge, or jury should consider whether this exposes the improper or foolish nature of such legislation. The present dynamic is for politicians to think that they should increase the penalties when their fellow citizens ignore the law. When effected, this constitutes, not justice, but a kind of revenge of the state against those who would defy it. A revenge with an ignoble motive that defies proportionality.

Typology of Motives and Virtues

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