Objectivist vs relativist arguments for judicial diversity

Now that President Obama has actually nominated Sonia Sotomayor to the Supreme Court, I'm reminded that I meant to comment on this David Schraub post riffing on Sotomayor's thoughts on the influence of experience on judging, and the importance of a diverse judiciary:

Courts are constantly forced to ask questions about the nature of justice and fairness, to make evaluative decisions, in short, to judge. The entirely body of common law is essentially one long game of "what makes sense?" Constitutional law is no different: What is "cruel" punishment? What process is "due"? What is the technical definition of "equal protection"?

These are not questions that come with objective answers; indeed, I would question quite strongly whether they are even candidates for objective truth. To be sure, we often claim they are -- we take the position held by who currently hold the crown gavel and proclaim it to be Divine Revelation Black Letter Law. But this claim to impartiality is a chimera -- it doesn't correspond to anything real. A rule that works from the perspective of one position in the social order or one bundle of value commitments may seem bizarre or oppressive to another person differently situated or with a different set of commitments. We aren't equipped with the tools to resolve these disputes by brute intellectual force: our choices are between simply entrenching the dominant view and calling it True, or honestly engaging with and grappling with alternatives, with an eye towards mutual agreement and a commitment to mutual respect. From within this paradigm, it is beyond obvious that a multiplicity of perspectives is of benefit to the judicial branch. This has been recognized by theorists left (Jack Balkin, Cass Sunstein) and right (Richard Posner).

I think Schraub/Sotomayor get the right conclusion, that the judiciary should have members from a great diversity of backgrounds. And I think they start from the right premise -- that people with different experience will see things differently, e.g. what kind of conduct is "reasonable" in a given context. But I would get from the former to the latter by a route that is in some ways the opposite to the route Schraub takes.

Schraub takes a relativist approach. Different people see things differently, and no perspective is necessarily more correct than any other. Therefore, all we can do is avoid privileging any one perspective by putting them all in the mix.

I would take an objectivist approach. The different perspectives aren't simply equally valid alternate takes. They reveal important information about situations. A Latina judge doesn't just say "X doesn't seem reasonable to me in situation Y" whereas a white male judge says the opposite. The Latina judge says "I can see that X isn't reasonable in situation Y because I can appreciate the importance of factor Z," whereas the white male judge overlooks or under-weights the importance of Z, because Z has never been a problem in his life. And in theory the reverse may happen, with the Latina judge not appreciating certain aspects of a situation that the white male overlooks (though the cultural dominance and normalization of white maleness in our society makes the latter situation rarer than the former). If the court can't appreciate how awful it is for a girl to have to take off her bra in front of school officials, its decision isn't just privileging the male perspective, it's failing to fully consider all the factors at work and thus getting the decision wrong. A diverse judiciary thus gets not just decisions that are fairer between different outlooks, but better decisions. The process is still highly fallible, but that doesn't mean there's no right answer to legal questions.

It's not totally clear to me from the linked excerpts how closely Sotomayor would endorse the middle part of Schraub's argument. She refers to wrestling with the dangers of "relative morality," and that "there can never be a universal definition of wise," which sound Schraubian. But she also says that "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life," which strikes me as a statement of some form of standpoint epistemology. Standpoint epistemology is an objectivist position, holding that people from certain social positions (specifically the oppressed) understand things better and therefore get the right answers when members of the dominant group accept convenient falsehoods -- more consistent with my perspective. (I don't have space here to explicate the various versions of standpoint epistemology or my particular take on it.)

Picking a Textbook

As I mentioned a few posts down, I'm picking a textbook for the World Regional Geography course I'm teaching this fall. Since I've been thinking about this stuff, I thought I'd record for posterity what kind of factors I took into account.

I'd like to be able to say I put a big emphasis on logistical matters like price and consistency with older editions. Unfortunately, textbook publishers don't seem to differentiate themselves much on this count.

Turning to content factors, one thing I'd like to see is some anti-essentialism about the regions the world gets divided up into. Unlike, say, the periodic table or evolutionary clades, geographical regions aren't "real" or eternal. They're pragmatic devices for understanding -- and therefore the borders of the regions depend on what your goal in dividing things up is. I would like a textbook that addresses both the natural and social processes that create differences among areas, as well as the processes by which we come to see certain areas as composing a "region." Relatedly, it would be nice to get away from the assumption that regional and sub-regional boundaries must always follow the borders of countries.

I want a textbook that avoids lists of facts. I understand the desire not to stereotype entire continents. But if students are presented with a list of unconnected items of information -- the ethnic groups on this island are the X and the Y, the northern part of this country is more economically developed than the south -- they're not going to remember it. I certainly don't want to teach a class that mostly involves memorization.

But at least "the ethnic groups on this island are the X and the Y" is an actual piece of information. Too often textbooks fill their pages with meaningless generalities like "this region has a great diversity of environments" or "this country has a rich cultural heritage." That kind of vapid statement may get you points with someone looking to check off that you have a "multicultural" perspective, but it doesn't actually teach students anything. Give me something of substance -- an explanation of the qanat system in central Asia, or an overview of the Aboriginal Australian Dreaming -- that shows the rich cultural heritage of a place.

All the textbooks I saw tried to present personal stories and vignettes from people living in the various regions. Unfortunately, they struggled with actually presenting the voices of actual people, opting instead for unattributed statements or third-person narration sourced from Western news stories. In the age of the Internet, it shouldn't be that hard to find someone in any part of the world who can write you a 400-word box in their own words on what it's like for them living in that place.

Finally, I looked for what for lack of a better term I'll call a political economy perspective. It's too easy for students to see various parts of the world as isolated and each going their own way (at least until McDonald's opened in their capital city). So a good textbook has to avoid pulling any punches in setting out just how each region was, and still is, shaped by wider forces and other regions -- for example, the impacts of the slave trade and colonialism on Africa.

I ended up picking the textbook by Lydia and Alex Pulsipher (the second author was my housemate for a while in grad school, but I picked the book based on the considerations above), but that book is not innocent of the concerns above, nor were the other books I considered irredeemably flawed.

Propaganda backfire

I got a flier in the mail today from Food City warning me not to listen to the United Food and Commercial Workers Union's criticisms of Food City. The first backfire is that I was not aware the UFCW was criticizing Food City.

The second backfire comes from the obvious hypocrisy of the few actual arguments in between the vacuous corporate "values" boilerplate. The flier says UFCW has two goals: to get more union dues, and to destroy Food City. It's not clear how a union would collect any dues from workers at a company that has been destroyed. And for a for-profit corporation to make dire warnings about how other organizations are motivated by the desire to make money was ridiculous enough -- then I noticed that the flier contains a $5 coupon!

Inside, the flier tells us that UFCW paid $200,000 to a consulting firm to help spread its message. So I can only presume that this glossy flier was hand-made by Food City executives, rather than farmed out to *gasp* a consulting company that does PR campaigns.

I have yet to investigate the particulars of this dispute, but I think I can say I'm much more sympathetic to UFCW than I was before I checked my mail.

They All Look The Same

I've been assigned to teach World Regional Geography next year, so I'm looking through textbooks to decide what to assign. The first book I opened up was Michael Bradshaw et al's Contemporary World Regional Geography. Among the many sidebars and pullout boxes in the "Africa South of the Sahara" chapter is one giving a "personal view" about Yaa Boadi, a woman in Ghana who overcame poverty to become a world-class engineer. The box's text -- an excerpt of a Financial Times article that includes not a single quote from the woman whose "personal view" this supposedly is -- is questionable enough. But what boggles my mind is the picture, a mug shot captioned "A Ghanaian woman similar to Yaa Boadi."

"Similar to?"

UPDATE: An interesting twist emerged when I realized I was looking at the previous edition of the book (I had the publisher send me the previous edition, because I wanted to factor into my decision whether students would be able to get by using an older edition, since that would be cheaper for them to buy). The newer edition had the same "personal view" box, with the same photo -- but this time the photo was captioned "Yaa Boadi." The photo credit also changed -- the newer edition credited to Todd Shapera, who wrote the article, but the older edition credits it to Reuters/Corbis.

The Chalice Projection

For my UU readers, I suggest projection #3 on this page for anytime the UUA decides they need to incorporate a map into their graphics to show their global consciousness or whatever -- how many other religions have their own projection?

(After I wrote that I went searching around and realized Christianity and Judaism (scroll down to Maurer's S233) do, and presumably it wouldn't be too hard to do a nine-point version of one of the ones on the Judaism page for the Baha'is. It might be a little harder to do a map projection that looks like, say, an Om and have it still be recognizable as a map.)

Objective Accountability or Subjective Expression

I recently read J. Claude Evans' With Respect for Nature, which is provocative in the sense of being brimming with arguments crying out to be deconstructed. I'll hopefully come back to post on his core project of defending non-subsistence hunting and fishing, but for now I wanted to pick out a key philosophical move that he makes. Evans is attracted to many elements of Albert Schweitzer's ethical system (though disagreeing with his anti-hunting conclusion), among which is his aversion to objective moral rules. Evans writes (p. 152):

Once one has accepted the basic moral principle, the task of moral deliberation truly begins as one is confronted with the task of living one's own individual life, of taking personal responsibility for one's decisions and practices. This is the task of living constantly mindful of one's basic orientation toward life expressed in basic principles or attitudes, without a set of rules that make one's decisions for one. This means that your decision, for example, to hunt, as long as it is consistent with or a personal expression of the basic attitude, can be correct for you without necessarily being the correct decision for me, even if we both adopt the same basic attitude. The moral life is a way, not the simple application of a set of moral rules. Many paths can diverge from one another within the common pursuit of this way.

The contrast here is between objective moral rules -- those that are binding on all people and to which one person can hold another accountable -- versus subjective moral rules -- those chosen by the actor as their personal expression of how they value their moral commitments. The distinction is not unique to Evans and Schweitzer, nor is the judgment that objective rules are slavish while subjective ones allow for deep expression of oneself.

Evans' aversion to objective rules seems to me to be based on caricaturing the objective-rules position. He attributes two characteristics to it -- that it's externally imposed, and fully worked-out. That enables him to portray objective-rules-followers as slaves, forced to follow whatever the moral code demands, without thinking about their own relationship to it. This portrayal of objective rules is perhaps a lingering legacy of traditional Christianity, in which the rules flowed from God to obedient humans (with a paradigmatic positive expression in Divine Command Theory and a paradigmatic negative one in the New Testament's portrayal of the Pharisees and Mosaic law).

But this external command view of objective rules is far from the only way they can be conceived. Objective though they might be, the rules of morality are always a work in progress. They always require further thought, debate over the nature and relative strength of values, etc. to be applied to particular situations and new circumstances. There is rarely "simple application" here, but there is a requirement to be "constantly mindful."

What of the subjective-rules approach? In its extreme existentialist form (and Evans seems to have some sympathies for existentialism), it threatens to slide into relativism. Anything is permissible, even obligatory, as long as you're willing to take responsibility for it. But at this point the moral content of the whole enterprise seems to dissolve -- how can we differentiate this approach from plain enlightened egoism? And what does "taking responsibility" consist in, beyond a personal attitude in one's own head toward one's actions (since others' attempts to hold one accountable would either be impermissible because they involve imposing one person's ethical rules on another, or morally neutral because the actor has accepted the risk of the holding-accountable as a foreseeable consequence).

The ultimate problem with the subjective-rules approach, I think, is that it's asocial. You are the only possible arbiter of your own actions, because only you can know how deeply and seriously you're thinking about their grounding. Other people are at most suggestive models -- they can't directly hold you responsible for making the wrong choice because what choice is right for them has no necessary bearing on what choice is right for you, even in identical circumstances. For someone who builds his environmental ethic on the importance of participation in the natural community, Evans (and Schweitzer) seems awfully reluctant to substantially engage in the human community. Indeed, it seems to me that decision-making, and taking responsibility for one's decisions, only make sense when the rules one is seeking to be guided by are objective and hence available for others' scrutiny and judgment.

(This is not to say that there is no room in life for a subjective-rules approach -- subjective rules have free rein anywhere in life that objective ethical rules do not prescribe a certain course of action, or where the objective importance of the ability to shape one's own lifestyle is the dominates other considerations (one of the great attractions of the liberal tradition of political philosophy is the emphasis it puts on the importance of carving out a substantial sphere of life for subjective expression). But subjective rules fill in where objective ones leave off and are always vulnerable to being trumped by them, rather than being an alternative to them.)

While this problem with subjective rules is common in many moral arguments, it also goes to the heart of the problems I have with Evans' theory. He claims to base it in objective facts -- the biological interdependence of all life (here treading closer than he wants to admit to the naturalistic fallacy) and the act of participation in that interdependence. But when everything is worked out, he ends up resting the justification for hunting and fishing on subjective attitudes of the hunter or fisher. Hunting or fishing becomes about what the quarry means to me -- not what the quarry means to itself.