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July 29, 20111 response
Nicholas D. Smith
As I understand it, the issue at stake here is that people (and not just women) want to be able to regard their workplace as just that--a workplace. The minute someone in that place begins to give sexual attention to someone else in that workplace, the environment is changed--and changed in a way that makes the workplace no longer an entirely comfortable place to work.
There are obviously degrees of sexual harassment, and I frankly don't think that giving unwanted sexual attention (that is in no way coersive) on a date could count--either ethically or legally--as harassment. But it is different in a workplace. If you find someone's sexual interest or expressions thereof unwanted on a date, you can always refuse to go out on another date with that person. But if you have to deal with this at a workplace, your only option is to try to find another job--which these days can be a major problem, and which a good worked should not have to feel that he or she has to do, to avoid someone acting in a way that is inappropriate for a workplace. So this is not simply a "freedom of speech" issue. It has to do with making the environment of a workplace no longer comfortable for some other worker working in that place. Please respect this!
July 3, 20111 response
It is often not precisely what someone did that is significant in the case of the law, but how it is classified. However many people saw him do it, the issue is often what it is that they saw
Right now I am banging away at the keys of my computer, but I could be blackmailing someone, sending a love letter, slandering a politician, or responding to a question for askphilosophers. A thousand people may be watching, and not just my cat, but in criminal law what the court will want to know is what precisely happened, not just the actions of the individuals concerned. So we should hang on to the "allegedly" term at least if the plea is a not guilty one.
April 20, 20111 response
March 23, 20111 response
I am in full agreement with the precept that an accused person is to be presumed innocent until proven beyond a reasonable doubt to be guilty. But this precept is not violated when your defense attorney declines your case or resigns from it. This is so because the presumption applies to the state and its agents and agencies. The precept does not forbid citizens to form the opinion that some accused person is guilty. Nor does it forbid citizens to act on such opinions. You are perfectly free, for example, to change your mind about buying Joe's used car or to warn your daughter against dating Joe, on the sole ground that you have just learned of a criminal case of fraud against Joe and of the evidence presented against him.
I agree that an accused person is entitled to be represented by a qualified attorney. But again, this right is not violated when one attorney declines or resigns. Compare: your right to get married is not violated when the person you have chosen as your spouse declines -- or even if many potential spouses turn you down. You'll have to keep trying until you find someone willing to get married to you. And, similarly, as a person accused you need to keep trying until you find a lawyer willing to take your case along with the plea you want her to enter on your behalf.
I also agree that jurors must examine the totality of the evidence placed before the Court and may bring a verdict of "guilty" only if they are fully satisfied of the charges beyond a reasonable doubt. Perhaps you can go from there to the proposition that a defense attorney should not be influenced in the way she conducts the defense by her own beliefs about her client's guilt or innocence. But even if this is right, it's irrelevant to my point which was not about how your defense attorney should conduct your defense once she has taken it on, but about whether she should be defending you at all. Do you wish to say that defense attorneys are morally free to turn down only those clients who have been shown beyond reasonable doubt to be guilty? This is surely false. A defense attorney may resign when she becomes convinced that you don't have the money to pay her. So why should it be impermissible for her to resign when she becomes convinced that your "not guilty" plea is false to the facts?
To put this in perspective, let's think about a concrete case with you in the role of top-of-the-line defense attorney. A potential client comes to you and offers you a large fee for defending him against a rape charge. Talking through the details of the case with him, you become convinced that he has committed the crime. He does not deny this, but he wants to plead "not guilty". He believes that, as a star attorney, you can surely create reasonable doubt in the mind of at least one juror. You agree that you can achieve his acquittal by creating some doubt about whether the victim had not signaled consent after all. You could do this by delving into the victim's previous sexual encounters and by getting her confused or angry in a way that undermines her credibility for at least one of the jurors. You conclude that, if you take the case, then he will be acquitted.
Most would say (though you seem to disagree) that you do nothing wrong when you turn down the case. In particular, you do nothing wrong by turning it down for the reason that you do not want to help someone you deem guilty of rape to escape punishment. It might be said against this that, if every attorney turned down this case, then the accused would have no attorney. In response, I don't think this hypothetical is relevant in a context where there are plenty of other attorneys willing to take the case. If the hypothetical were morally relevant, then analogues of it would lead to rather absurd conclusions. For example: is it morally permissible for you to turn down a case because you want to preserve enough leisure time? Presumably not, because if all attorneys were as busy and as protective of their leisure time as you are, then the defendant in question would find no defense attorney. This implication is absurd in a world where in fact plenty of defense attorneys are looking for clients. And just as you may turn down a case because you want to preserve your leisure time, you may also turn it down because you don't want to contribute to what you regard as a miscarriage of justice nor inflict emotional injury and humiliation upon a person you regard as a rape victim.
Once it is accepted that turning down the case is morally permissible, I don't see a good rationale for denying that this is what you ought to do. If you accept the case and mount a successful defense, you will contribute to what, according to your own best judgment, are substantial harms: you will contribute to a miscarriage of justice, you will contribute to enabling and encouraging your client to re-offend, you will contribute to reducing the deterrent effect of criminal statutes (esp. those against rape), and you will also inflict further injury and humiliation upon someone you regard as a rape victim. Turning down the case, on the other hand, comes without significant moral costs. The accused has to look for another attorney, that's all.
A final remark. While, for the reasons given, I don't think much of the line of argument you press, I recognize that it is prominent in legal circles. I would explain this mainly by one factor: money. Defense lawyers want to earn money by achieving acquittals for persons they strongly believe to be guilty and they don't want to be thought unethical for doing this. So they work up a special professional ethic that justifies their conduct and even celebrates it as their moral duty. The mere fact that the members of a profession deem some conduct they engage in to be ethical does not make it so.
March 17, 20111 response
I read your queston as envisaging that the attorneys in question not merely contribute to a miscarriage of justice but do so knowingly -- or at least have strong reason to believe that the outcome they are achieving is the wrong outcome.
I also read you as stipulating that the cases you have in mind happen within a largely just legal system. Within a seriously unjust legal system, an attorney who gets a guilty client (who really did make a joke about the dictator) acquitted has done a morally good deed, and similarly the attorney who gets one of the regime's torturers convicted for a crime he didn't commit.
To be reasonably just, a criminal justice system must not merely punish the kinds of conduct that ought to be punished and permit the kinds of conduct that ought to be permitted. It must also have rules and procedures that are reasonably reliable in ensuring that guilty people get punished and especially that innocent people are acquitted. It is not consistent with such a system that prosecutors pursue and achieve convictions of people whom they know to be innocent. Such behavior either violates the rules of the system (which proscribes such prosecutorial misconduct) or else constitutes participation in an unjust legal system (which permits or encourages prosecutors to go after innocent people).
It could be argued that this sort of reasoning does not apply in the case of defense attorneys: that a criminal justice system can be just even while it encourages defense attorneys to try to get acquittals even for clients they know (or have very strong reason to believe) to be guilty. In view of the enormous damage done by repeat offenders who have been wrongly acquitted earlier, I find this blanket permission hard to accept in the case of serious crimes. Here, I think the analogous argument goes through: a defense attorney who achieves the acquittal of a defendant whom he knows to be guilty of a serious crime is either violating the rules of the system or else participating in a legal system that is unjust insofar as it permits or encourages such conduct. Such a defense attorney should decline the case or resign from it. If such a defense attorney is convinced that her client is a rapist and then continues to defend him vigorously and achieves his acquittal, then she bears some moral responsibility for crimes her client will commit in the future even if she has done nothing illegal or procedurally inappropriate.
March 17, 20111 response
August 19, 20101 response
Suppose the "technicality" is something that the law pretty clearly entails, even though it's doubtful that legislators had the particular worrying circumstances in mind. In that case, the judge is doing something we normally think judges are supposed to do: deciding cases based on the law. It's open to the judge to point out that this is an unfortunate consequence of the law, and may be open to him/her to adjust penalties accordingly, but if the law actually has a certain consequence, then that's the law. If the "technicality" is an unfortunate one, legislators can fix it, or so the argument would go.
Compare: suppose that it's not a matter of a technicality at all, but a matter of a law that the judge thinks is bad. Then it's still the judge's sworn obligation to follow the law.
Is this fair? In various senses of the word, the answer may be no. Should the judge do otherwise? That doesn't follow. It's not clear that the cure for bad laws is to have judges substitute their judgment of what's fair for what's legal.
That said, two comments. First, could there be cases so egregious that it would be just plain wrong of the judge to enforce the law? Perhaps. But that's different from saying that judges should routinely substitute their own sense of fairness for what the law entails. Second, what's been said here doesn't mean that judgments of fairness and the like never have a place in the law. Laws themselves can leave room for that. In some parts of the legal system, especially in some countries, the notion of equity has an important role to play. And when it comes to constitutional matters, legal philosophers like Ronald Dworkin have argued that the Framers were aiming at general principles and didn't intend for courts to be bound by their own conception of what those principles call for in particular cases. Whether that's the best view at the end of the day, it's at least a worthy contender.
June 27, 20101 response
May 26, 20101 response
May 6, 20101 response
Of course, it isn't morally acceptable to disobey a law merely because you disagree with it (you seem to be confusing the concept of a 'law' with the concept of a 'suggestion'). Let's suppose I'm an American driving in Europe and I want to drive on the right side of the street simply because I prefer it and find the government's insistence that I drive on the left side to be unintuitive and intrusive. This would likely result in someone getting hurt... most likely me. Laws like this one are designed to promote public order and protect people.
I think the drinking age is a good example of this pattern (that laws we disagree with are often there to protect us and promote public order). The drinking age was raised to 21 in the USA largely to cut down on drunk driving accidents and injuries. And (statistically speaking) it has worked rather well. I admit that laws like this one do hinder the liberty of more responsible young adults for the sake of the 'greater good,' but it is hard to argue with thousands of lives saved. In fact, I have a good friend who is a trauma surgeon at the local ER... he says that he would likely be out of work if alcohol were outlawed entirely since the most frequent feature in the patients he sees such as those from car accidents, injuries from violence, etc. is the use of alcohol.... (not that either of us would really like it if alcohol were outlawed).
So the most obvious problems with disobeying a just law are the possible harmful consequences to ourselves and others. There are probably other problems... for example if I break a law that is unnecessary (but not necessarily unjust) I may weaken the authority of the lawgiver and encourage others to break more important laws.
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