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Posts Tagged ‘legislation’

  1. note on Justice

    December 4, 2015 by xudifsd

    Although I love programming and make it as my profession, I still found studying philosophy of right interesting.

    While idling at home, I watched <Justice> for the 3rd times, so this post is served as my notes on it.

    classification of principle of justice

    There are two kind of principle to reason what is right thing to do:

    • consequential
    • categorical

    consequential way of justice judges an action based on the result produced by it, whereas categorical way of justice judges an action not by result but by categories the action belongs to, so from this point of view, murder is murder, no matter whether it is for saving other lives or for money.

    Utilitarian is considered as consequential, because its underlying principle is “to maximize the utility of the whole society“, this principle is focusing on the result produced by an action, and say nothing about the categories that action belongs to. This principle, however, failed to respect individual rights. So libertarian do not like utilitarian for its dehumanization.

    Libertarian

    For libertarians, which I think I’m one of them, individual rights should not be violated either by other individuals or by government.

    John Lock is considered as a libertarian, but he is a little bit different from libertarian in a sense that he think “right of life, liberty and property are unalienable“, and since it’s unalienable, we can not freely trade them.

    There’s a tricky part of the Lock’s theory: since right of life, liberty and property are unalienable, how does government can tax people? Well, Lock says it is possible for the majority of people to agree on a general procedure not an arbitrary procedure to decide how to tax.

    Kant (freedom as autonomous)

    Kant reject utilitarian, he think that the individual person, all human beings have a certain dignity that commands our respect. The reason the individual is sacred or the bearer of rights doesn’t stem from the idea that we own ourselves but instead from the idea that we are all rational beings and autonomous beings. And he deny that pain and pleasure are our sovereign masters, he thinks that it’s our rational capacity that makes us distinctive, it makes us something more than just physical creatures with appetites.

    And Kant have a special and interesting idea about freedom:

    When we, like animals, seek after pleasure or the satisfaction of our desires or the avoidance of pain, when we do that, we aren’t really acting freely, because if we do so, we were acting as the slaves of those appetites and impulses, when I act to satisfy it, I’m just acting according to natural necessity. So for Kant, freedom is the opposite of necessity.

    So, to act freely is to act autonomously, and to act autonomously is to act according to a law I give myself, not according to the physical laws of nature or the laws of cause and effect. To act freely is not to choose the best means to a given end, it’s to choose the end itself for its own sake. Insofar as we act on inclination or pursue pleasure, we act as means to the realization of ends given outside us, we are instruments rather than authors of the purposes we pursue. Respecting human dignity means regarding persons not just as means but also as ends in themselves. And this is why it’s wrong to use people for the sake of other peoples’ well-being or happiness.

    I’m in love with above idea, actually I think I agreed with him many years ago even before I know Kant. Have you noticed that I used “Rational life” as my tagline of this blog? I used that subconsciously when I was building this blog site and never changed it. So there would be no double that I love Kant’s idea.

    What gives an action its moral worth? Consists not in the consequences or in the results that flow from it but in the motive, in the quality of the will.

    A good will isn’t good because of what it effects or accomplishes, it’s good in itself. Even if by utmost effort the good will accomplishes nothing it would still shine like jewel for its own sake as something which has its full value in itself. We should “act in such a way that you always treat humanity , whether in your own person or in the person of any other, never simply as a means, but always as the same time, as an end.

    Although Kant’s idea appeals me, I found it lacks something to make that idea a great guidance for making law, it didn’t provide a practical approach to do that.

    Rawls

    Rawls agree with Kant, and works “never happened contract” out with the device of what he calls the “veil of ignorance“. This, I think, provides the missing practical approach to serve as guidance to make law.

    A subproblem needs to be solved first is: what makes contract restrictive? The sign of the contract is not a sufficient condition of the agreement being fair. And an actual agreement is not a sufficient condition of there being an obligation.

    Actual contracts have their moral force in virtue of two distinguishable ideals: autonomy and reciprocity. But in real life every actual contract may fall short.

    One student says that we would choose a system based on merit behind the veil of ignorance, but professor rejected that idea, because the effort itself is also largely shaped by family and education environment. And here comes my favorite part of the lecture: professor did a very interesting poll on how many students in Harvard University are first in birth order, it turns out that the majority of people are first.

    The application of theory

    Theories of distributive justice:

    • Libertarian – free market system (against a background of formal equality) but this will in favor of those who happen to be born to affluent families.
    • Meritocratic – fair equality of opportunity (to bring everyone to the same start point of line)
    • Egalitarian – Rawls’ difference principle (people may gain from the lucky they have, but only on terms that work to the advantage of the least well off)

    Teleological reasoning

    If you look at a range of thinkers this lecture has been considering, there does seem to be a reason they want to detach justice from desert that goes well beyond any concern for equality. They all agree that justice is not a matter of rewarding or honoring virtue or moral desert.

    Somehow they think tying justice to moral merit or virtue is going to lead away from freedom, from respect for persons as free beings. But Aristotle is different.

    Aristotle think that justice means giving each person his or her due.

    For Kant and for Rawls, the point of politics is not to shape the moral character of citizens. It’s not to make us good. It’s to respect our freedom to choose our goods, our values, our ends consistent with a similar liberty for others. But Aristotle disagree: “Any polis which is truly so called, and is not merely one in name, must devote itself to the end of encouraging goodness. Otherwise, political association sinks into a mere alliance.

    Because in pluralist societies people would disagree about the nature of the good life, we shouldn’t try to base justice on any particular answer to that question. So Kant and Rawls reject teleology, they reject the idea of tying justice to some conception of the good. What’s at stake in the debate about teleology:

    If you tie justice to a particular conception of the good, if you see justice as a matter of fit between a person and his or her roles, you don’t leave room for freedom, and to be free is to be independent of any particular roles or traditions or conventions that may be handed down by my parents or my society.

    Well, I think this is why I do not like some parts of Chinese culture, it seems they are actually promoting some goods or ends and forcing us to do something towards those them, failed to provide freedom to chose. So I do agree that the best law is not the one that promotes certain goods, but provides a fair framework for people to achieve their own ends while respecting individual rights.

    Conclusion

    Kant and Rawls failed to provide ideas about obligations of membership, loyalty, and how to interact with other people. Kant is focusing on individual, and provides a set of way to live a rational life and respect people at the same time. And since I love his idea so much, his book <Groundwork of the Metaphysic of Morals> should be appended to the list of books I must read.

    And in a sense that lacking respect for freedom to choose, the idea that law should promote certain goodness should be rejected. The only functionality of the law is to provide a framework for people lived in to achieve their own ends.

    In later part of the lecture, the professor talked about how to respect fellow citizen which I found intriguing:

    For libertarians, how to respect our fellow citizens’ moral and religious is just to ignore them. But that isn’t the only way even the most plausible way to do so. There is a different conception of respect according to which we respect our fellow citizens’ moral and religious convictions, not by ignoring, but by engaging them. By attending to them, sometimes by challenging and contesting them, sometimes by listening and learning from them. There’s no guarantee that this will lead to agreement, there’s no guarantee it will lead to appreciation for the moral and religious convictions of others. But compare to ignoring others, the respect of deliberation and engagement is more adequate, more suitable ideal for pluralist society. This kind of moral engagement will better enable us to appreciate the distinctive goods our different lives expressed.


  2. 从美国宪法第一修正案到言论自由

    September 13, 2011 by xudifsd

    我们总是说美国人民非常自由,其中我觉得最为重要的自由就是言论自由了。这样的自由甚至被写入宪法修正案,也就是美国宪法非常著名的第一修正案

    条文的内容如下:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    虽然说懂得这些,但是还是无法深入理解言论自由。最近在看林达写的《历史深处的忧虑》,这本书非常好,里面以信件的形式描述了美国人民的政治生活以及美国政治产生的原因,读完这本书觉得受益匪浅,书中很大的一部分都提到了言论自由,但是由于书中的内容有些分散,所以我就在这把书中的观点集中一下。

    书中说道:

    在美国,“言论自由”和“追求真理”之间的界限,是划得非常清楚的。在这里,这是两件完全不相关的事情,言论自由只有一个目的,保证每个人能够说出他自己的声音,保证这个世界永远有不同的声音。而绝不是希望到了某一天,人们只有一种声音,哪怕公认为这是“真理”的声音。

    美国人民在考虑言论自由时和我们最大的一个不同就是他们认为言论自由和真理的探讨是无关的,也就是说言论自由并不是为了保证真理的产生而存在的。而我们在讨论时总是想要通过这样的自由来获得真理。其实将言论自由和真理绑定在一起是非常危险的,因为真理有一个非常可怕的属性——排他性,如果人们明确认为或者在潜意识中觉得言论自由是通往真理的唯一途径,那么在这种概念下,一旦自己觉得已经寻求到真理时,那么将言论自由抛弃也就成为顺利成章的事了。所以在很多国家,言论自由变成了非常可怕的东西,一旦人民开始利用这种自由往往意味着政权的垮台,而一旦新政权开始执政,又开始借助真理的排他性来限制言论自由。

    书中还举了一个滥用言论自由的例子——三k党制作了一部“种族与情理”的电视片,要在公共电视台播放。到底要不要将言论自由给公认的恶人,按照中国人的观点是“既然公认的恶人,那么剥夺他的权利也无可厚非”,但是我记得西方有个哲学家说的一句话可以解释为什么美国人将恶人平等对待——“我不同意你的观点,但是我誓死保护你说出你观点的权利。”

    书中的解释就更有意思了:

    在本世纪,美国的荷尔姆斯法官曾经就类似观点提出过很形象化的比喻,他把它称为言论的“战场化”和“市场化”。他认为,与其让不同的观点象在战场上一样殊死决斗,一方一定要扼杀另一方,那还不如把这些言论抛入“市场”,让他们去竞争,看看到底哪一种观点能被大家所接受。同意这一理论的人相信,宪法第一修正案的力量所在,正是让大家分享言论自由的理想和它的原则。根据这一理论,如果三K党播放他们的节目, 克莱弗牧师们所应该做的事情,不是去阻止他们的节目,而是应该也播出自己的观点。在这种“市场竞争”中能最终站得住脚的理论,才是更可靠和更持久的。但是,克莱弗牧师显然并不同意这样的观点。

    接受了三K党法律委托的斯蒂芬·潘弗所说的一段话, 颇能代表今天一般美国人的看法:“自由言论就是自由言论,对于流行观点和非流行观点都是一样的。我们不可能一边宣称这是一个自由的国家,一边又把言论划为可接受的和不可接受的两部分。 如果有一种检查制度可以把三K党从电视里剔出去,那么,同样的制度也许早就把马丁·路德·金的讲话从阿拉巴马州剔出去了。”必须听那些听不下去的话,“这正是我们必须为自由支付的代价”。

    在明白这些之前最让我吃惊的一件事就是08年美国大选时一名白人在网上公开宣布要刺杀奥巴马,而且最终法院的判决结果竟然是“这样的帖子不构成真正的威胁,因此该言论受到宪法第一修正案的保护”。现在我算是明白了“美国人把政府当成假想敌,任何公民只要不犯罪,真的几乎是想干什么就干什么了”,我想这样的社会也只有美国这样历史包袱少的国家能够承受的。