Miscellaneous Other Systemic Issues
This essay is perhaps particularly meandering. Again, I’ve tried
to put my topics in some kind of order, but please don’t be
surprised if the text moves on rather abruptly.
Tort Reform. Corporations and others have been pushing
for tort reform for some time. A main desire is for a limit on the
amounts that can be awarded for “pain and suffering” or
as “punitive damages.”
An important point to understand about tort liability, however, is
that those for “reform” want it because they want to limit
their liability for the harm they cause. No one is ordered
to pay a multi-million dollar judgment unless it’s been proven
that they caused the harm for which the judgment was sought.
Nonetheless, I believe the law of torts is indeed in need of reform,
though not necessarily in the ways sought by corporations.
First, a brief summary of how the legal system works with respect
to “torts.” A tort is a wrong that does not necessarily
involve the breach of any criminal law or contractual agreement, but
rather a breach of an implied duty, such as a duty not to be negligent
in ways that a reasonable person would foresee would be likely to
Litigation is extremely expensive for both plaintiff and defendant.
As of this writing, the attorneys’ fees and other costs just
to initiate a law suit in Dallas, Texas can be expected to
amount to $5,000 or more. From there, the additional fees and costs
mount quickly; it is not unusual for a plaintiff’s attorneys’
fees to run into tens or even hundreds of thousands of dollars, especially
when the defendant has a lot of money to spend on its own defense.
Moreover, in the U.S., even when a tort plaintiff has proved that
she or he was injured and that the injury was caused by wrongdoing
by the defendant, such a plaintiff is not allowed to recover her or
his litigation expenses.
Perhaps most tort plaintiffs, even those with very good cases, cannot
afford such expenses; so in many, perhaps most tort cases, the plaintiff’s
attorney is paid on a “contingency” basis; that is, although
the plaintiff may be liable for out-of-pocket expenses such as filing
fees required by the court, the attorney will receive no fees for
her or his services except to the extent the plaintiff’s case
is actually won. Such fees are typically calculated as a percentage
of whatever the amount of any actual award turns out to be, often
around 30%. This may seem like a lot, but attorneys don’t win
all their cases, and in some of the cases they do win, the amount
of the judgment may not be very big. Litigation is always a bit of
a gamble--there are always variables you can’t predict, such
as what kind of jury you’ll face, among other things. So in
order for attorneys who litigate torts to stay in business, they need
to make more money on the big wins to make up for the cases in which
they lose or don’t obtain large judgments.
But what about the plaintiff, who has proved that she or he was injured
and that it will cost a certain amount to compensate her or him for
her or his injury, who may really need that money just to pay her
or his medical bills or other expenses--what if she or he has to give
up a third of their recovery to their attorney? For better or worse,
this is why attorneys and many others oppose putting a cap on damages
for pain and suffering or punitive damages--because it is that portion
of a judgment that can be used to pay the attorney without eating
into funds the plaintiff needs just to compensate her or him for the
The other considerations, of course, are that victims perhaps should
receive compensation for their pain and suffering, and that it often
really is desirable to award punitive damages in an amount
large enough so that the corporation is given a meaningful incentive
to change its ways rather than continue to treat others’ injuries
merely as an acceptable cost of doing business.
Clearly, some judgments are ridiculously large. These can usually
be reduced on appeal; but excessive judgments do present the following
problem. If plaintiffs who happen to sue first win extremely large
judgments, plaintiffs who may have been injured just as seriously
but who for one reason or another don’t consider suing until
later may find themselves facing a bankrupt defendant. It seems unfair
that some plaintiffs may receive a relative windfall while others
One alternative, of course, is more government involvement. For example,
our government could be more proactive and protective in regulating
safety with respect to, for example, exposure to tobacco smoke or
asbestos; or government could possibly administer a more even-handed
compensation program. Those pushing for tort reform would doubtless
regard this kind of cure as worse than the disease; but in fact it
is probably only because of the threat of large damage awards that
we get along with less governmental regulation than would otherwise
be necessary. (I believe that many other developed countries don’t
have the contingency fee system and do have more governmental regulation.)
Another idea is to permit punitive damages but, to the extent they
exceed the amounts needed to compensate the plaintiff and her or his
attorneys reasonably (which might not be easy to determine, remembering
that the attorneys need to make up for the cases they took and lost),
put the excess funds in a pool to be used to help pay other plaintiffs
injured by the same defendant.
I’m not keen on any of the prospective solutions, but I think
it’s important to understand why the system is the way it is
and that capping damages awards without making other important changes
in the system would have very serious consequences that most tort
reformers aren’t talking about.
Work Hours and Benefits. A few decades ago, pundits
predicted that our average work week of 40 hours or so would decline
to 35 or 30 because of productivity-enhancing technological advances.
Such advances have certainly taken place, and per capita worker productivity
has greatly increased. The increase in productivity has resulted in
part from such advances; however, it has also resulted in large part
from the fact that our work week has not declined but inexplicably
has gotten a lot longer. This seems especially surprising given that,
because so many more women have joined the work force during the same
period, many more people are now working.
The increase in productivity has led to a higher standard of living
with respect to material goods, at least for many. But our long hours
(not to mention the higher stress) have some adverse effects. Among
others are the reduced quantity and quality of time spent with our
For example, The New York Times has reported a link between
the increased proportion of women working outside the home and the
rise in obesity, as families increasingly turn to fast-food or take-out
because women don’t have time to shop and cook (Daniel Akst,
March 2, 2003). As the Times reported, “[o]besity may
well be the nation's biggest public health problem; a study by the
RAND Corporation last year said it was more serious than smoking or
heavy drinking . . . . Obesity, it would seem, is a problem like air
pollution; both are serious side effects of economic development.”
The article further mentioned that “about half of all health
care is paid for by federal, state and local governments.”
We are admonished to spend time with our families, oversee our children’s
education, exercise at least three times a week, eat right, be informed
consumers, do our own research regarding our medical care, do our
own research regarding our investments, do charitable work, etc.,--when
in more and more households, both spouses work, and when at least
in the U.S., the average work week is near an all-time high and vacation
time near an all-time low.
If people weren’t working so hard, many might take more interest
in and be more active with respect to politics and current events;
but few of us have enough time to keep track of what our school boards
are up to, let alone to figure out more complex national and international
affairs. The demands of the modern workplace leave both men
and women with insufficient time and energy to be the good parents
and citizens they’d like to be. This phenomenon, while profitable
in the short run for some, may not be in our best interests in the
We could at least take some modest steps to begin to address this
problem. For example, there is nothing fair about permitting employers
to maintain unnecessarily large proportions of their workers as part-time
employees so as to avoid having to provide insurance and other benefits,
with the result that many people have to work more than one part-time
job just to make ends meet yet still lack benefits (the costs of which,
like those of obesity, for example, get passed on to the rest of us).
A simple solution would be to enact legislation to require
that all benefits and remuneration to be calculated on a per hour
basis--i.e., an employee who worked 20 hours per week would
be entitled to 20 hours’ worth of benefits, while an employee
who worked 60 hours per week would be entitled to at least 60 hours’
worth of benefits or the financial equivalent thereof. Such legislation
would reduce the existing incentives to employers to over-use part-time
workers instead of creating more full-time jobs, and also reduce existing
incentives to squeeze every possible hour of work out of salaried
employees. (Provision could be made to except people who are genuinely
self-employed.) I also think that hours worked in excess of 40 per
week should earn more per hour than the first 40--for everyone, not
just blue-collar workers.
Some kind of similar re-structuring to provide unemployment benefits
to free-lancers would also be helpful and fair, for similar reasons.
(It’s difficult not to note that corporate interests are, at
least in the short run, well-served by having most of the population
employed, feeling too insecure in their jobs to demand shorter hours
or higher wages, and with insufficient leisure to scrutinize the records
of politicians whose campaigns are financed by corporate interests.)
Children. We say we care about children; we recognize
that they are our future; yet we invest little in them. If
children were the priority they should be, we should calculate what
it costs to actually feed, clothe, shelter, care for and educate a
child to minimum levels of adequacy. We should then
use that number to calculate support payments, whether from government,
parents, or others. E.g., in a divorce case, the first question
should be not what can a parent afford, but what does the child need.
If a child needs its parents to spend at least $6,000 per year in
order to be adequately supported, then each parent should be responsible
for whatever share it takes to reach that number. How to allocate
as between the parents? I’d do it in proportion to ability to
pay; e.g., if the woman makes $50,000 per year and man makes $25,000
per year, the woman would pay $4,000 and the man $2,000. (Note that
in order for these calculations to be made fairly, it is crucial to
include the cost of day care.)
Similarly, we should determine the minimum needs of children
with respect to schooling, day care and health care, and reform our
budget and taxation processes to make certain that the needed
funds are always there (e.g., provide that there
will be NO corporate or upper- or middle-class subsidies, credits,
rebates or benefits until all minimum funding needs for children are
paid). AND we should require that ALL of the foregoing financial minimums
for children be adjusted annually per a realistically-calculated Consumer Price Index (i.e., one that includes food, energy, and housing).
A similar calculation should be made with respect to parents’
time. That is, we should try to determine a minimum time each
parent should spend with her or his children, and implement workplace
and other regulations to promote that minimum. (I’ve
found in my own life that “quality time” can’t fully
make up for inadequate “quantity time.” In any relationship,
sometimes you need to spend a certain quantity of time just hanging
out together, without too many distractions, in order for sensitive
information or issues to surface in conversation.) For example, if
the Bush administration really cared about families, then rather than
abolishing overtime pay, as currently proposed, we should prohibit
employers from requiring overtime.
that one day, men and women will share more equally in child care,
and that men, women, and children will all be better off as a result.
Rights. The U.S. Bill of Rights (which consists of the first
ten amendments to the Constitution) sets out rights many people agree
are fundamental. These include (but are not limited to):
to practice the religion of your choice;
expression and publication;
gather with others peaceably;
petition Congress for redress of grievances;
to keep and bear arms;
not to have the government force you to house soldiers except during
and in a manner regulated by law;
not to be subjected to unreasonable searches and seizures, whether
as to one’s
own person or one’s home or belongings, with
any such searches being made only
if authorized by a warrant supported
by probable cause and that particularly describes
the place to be
searched and persons or things to be seized;
not to be punished for a capital crime except upon indictment by a
not to be tried for the same crime twice;
not to be compelled to testify against oneself;
not to be deprived of life, liberty, or property without due process
not to have one’s property taken by the government without just
to a speedy and public trial by an impartial jury;
to be informed of the nature and cause of the accusations against
to confront the witnesses against one;
to be able to compel witnesses to appear that might be able to help
to have the assistance of counsel for one’s defense; and
not to be subjected to excessive bail amounts, or excessive fines,
or cruel and
And the U.S. Constitution has also been amended to prohibit slavery.
Every one of the rights set out in the Bill of Rights is expressly
protected because, within the living memory or accepted knowledge
of the “Founding Fathers,” one or more governments had
abused its citizens by violating such rights.
Even fundamental rights are not absolute, of course, because they
sometimes come into conflict. As the saying goes, “my right
to swing my arm ends at the other fellow’s nose.” U.S.
courts have developed careful guidelines to help them in balancing
competing rights, including such considerations as when governmental
regulation is reasonably believed necessary in order to protect public
health and safety.
I believe the U.S. Constitution contains a great many of the most
important fundamental rights that should be recognized and assured
to all human beings around the world. I am deeply disappointed at
doctrines developed within U.S. jurisprudence to the extent they limit
application of such rights to U.S. citizens.
The European Union’s Charter recognizes most of the same fundamental
rights plus the following, among others:
to be treated with dignity;
to life (i.e., the death penalty is prohibited);
of physical and mental integrity (i.e., not to have one’s person
or mind subjected
to unwanted intrusions);
of access to one’s files and to protection of one’s personal
to asylum and protection against deportation to places where one would
at risk of death, torture, or degradation;
not to be discriminated against based on race, ethnic or social background,
language, religion, opinion, sex, sexual orientation, disability,
age, or property;
of children to be protected and cared for;
of workers to unionize, strike, and take other collective action;
to safe and fair working conditions;
to maximum limits on working hours and an annual vacation;
to protection from dismissal from work because of pregnancy and to
and parental leave;
of those in need to social security and housing assistance;
to health care;
to environmental protection;
to consumer protection; and
movement and residence.
See http://www.europarl.eu.int/charter/default_en.htm as of January
28, 2004 .
However we choose to define fundamental rights, I think those rights
we do call fundamental are generally ones that tend to enhance the
welfare both of individuals and the state as a whole. I believe that
in consequence of our efforts to better our world, we will continue
to develop our understanding of what can usefully be posited as fundamental
human rights and that such rights will be recognized and adopted by
more and more countries.
One right that interests me is the right of travel and to reside in
the country of your choice. As a general matter, e.g., I believe that
anyone who wants to move to the U.S. and who manages to get here should
have the right to do so. I recognize there are lots of issues about
how we might deal with floods of immigrants and what entitlements
we should afford them, but I see those as matters that would better
be dealt with on their own merits than by simply avoiding them by
forcibly restraining people from moving. I also believe those issues
will become less acute if the gaps between rich and poor countries
narrow, which I believe they will tend to do over time. I also think
that generally, no nation should have the power either to prohibit
its citizens from leaving or to force them to do so.
In this connection, it seems quite possible that ease of travel and
the internet will make it increasingly easy for people to form communities
that may become more important than their nationalities. Why shouldn’t
membership in a cyberspatial network based on purposeful criteria
become more important than the accident of where you were born?
I also believe our rights of privacy and regarding our own personal
information (to the extent such rights are recognized at all in the
U.S.) need to be beefed up.
Trading Freedom for Security. This is a reasonable
trade-off, but only up to a point. As Benjamin Franklin put it in
his Historical Review of Pennsylvania, “[t]hey that
can give up essential liberty to obtain a little temporary safety
deserve neither liberty nor safety.” See http://www.ushistory.org/franklin/quotable/quote04.htm as of January 28, 2004 .
I’m willing to enter into the social contract, to obey laws,
cooperate with authorities, based on my understanding that government
will in turn protect me from invasions and criminals, provide basic
services, and generally deliver enhanced security and stability. The
equation is similar to that between child and parent: I render
you my obedience, giving up some of my personal freedom, and in exchange
I hope you will take care of me. However, outside the parent-child
relationship (in which the parent’s natural love for the child
at least somewhat restrains the parent’s tyrannical impulses),
this kind of trust tends to be misplaced. Without the restraint arising
from a parent’s love for her or his child, if one in power is
unchecked by other restraints, the one in power is almost irresistibly
tempted to take advantage of her or his position, and corruption or
Since 9-11, many people seem willing to sacrifice any number of fundamental
rights and privacies (pursuant to the Patriot Act and otherwise),
notwithstanding that there is virtually no evidence that
the powers thus ceded to the government will result in any significant
reduction in terrorism and that, on the contrary, there is much evidence that such powers will likely be abused (e.g., think of the
dossiers maintained by the U.S. government in the not-so-distant past
against Martin Luther King and John Lennon, and actually used by the
government to pressure Lennon into giving up his anti-war efforts,
among other instances.) As discussed elsewhere, unchecked power is
an invitation to abuse.
The Principle of Self-Defense. U.S. law recognizes
a right of self-defense. This right is carefully circumscribed, however.
Generally, one must believe one is in danger of harm, the
danger must be imminent, and the belief must be reasonable under the
circumstances. Moreover, the degree of force used
in one’s own defense must be proportionate; you are
allowed to use only that degree of force that appears reasonably necessary
under the circumstances.
These limitations developed through hundreds if not thousands of years
of human experience, and I think they’re good ones. It appears
to me that the Bush administration’s decision to invade Iraq
was in disregard of one or more of those limitations and was a mistake,
and that the resultant costs to the U.S. and the world will be high.
First Amendment and Privacy Issues. I wish I had more time to discuss the importance of the First Amendment.
For now, let me just say that the “free market of ideas”
that the amendment partly protects, in which the widest possible array
of ideas and points of view should be freely expressed and heard,
is absolutely critical to our nation’s health and vitality.
Everyone benefits when more voices are heard.
Should Money = Speech? This is in essence what current
U.S. law holds, but there is widespread discomfort with some of the
effects. The problem is that those with more money get heard a lot
more, distorting the free market of ideas. The effects are similar
to those of allowing sellers of products to control all the channels
of distribution or retail shelf space. Perhaps we need anti-monopolistic
regulations regarding access to forums for the expression of ideas.
First Amendment vs. Privacy. The First Amendment was intended to protect expressions in public forums; it was not
intended to permit harassment of individuals in their private lives. For example, allowing abortion protesters to picket the private homes
of individual doctors makes no sense to me; this is not speech intended
to persuade others generally, but harassment intended to intimidate
a particular individual in order to prevent the lawful exercise of
that person’s other rights.
Similarly, to hold as U.S. courts have that telemarketers have a First
Amendment right to call us in our own homes has it backwards. A key
distinction is whether we are in our own private place or have put
ourselves in a public space. When we’re in public, marketers
and others should have a right to talk to us, politicians and businesses
should be able to blare their speeches or ads at us, and so long as
they’re not blowing out our eardrums, we shouldn’t be
able to stop them. But when we’re in our own homes, we should
have the power to limit or exclude them in any way we like, just as
we can refuse to answer the door or turn off the radio or t.v.
Property. One thing many people fail to realize is
that, while the concept of property certainly seems to accord with
the human desire to hang on to what one has created or collected with
one’s own hands, it is in fact an artifice or figment upheld
only through law. Property can and has been defined in various ways
in various times and places. E.g., under U.S. law, as I understand,
the public owns the broadcast airwaves, but the airwaves can be licensed
to private companies; you may or may not own the air rights over your
land, and the air may be subject to laws permitting or restricting
use by aircraft; many coastlines are subject to easements or other
rights in favor of the public, regardless of who owns the coastal
lands; the ownership of oil and other resources beneath your land
are governed by different rules than govern the ownership of your
land; and the government can condemn and take your land at any time
for a variety of reasons, although our Constitution requires that
you be paid just compensation. The concept of property rights is a
creature of the law, malleable and subject to change.
Capital Punishment. If anything can be said to be
“sacred”, it has to include human life. But we needn’t
rely on conclusory characterizations. Each and every human life is
in fact valuable, as a practical matter and in demonstrable ways.
We know that each person is unique, both genetically and in
terms of his accumulated experience, and each represents a huge investment
of biological, social, economic, and other resources. In
the case of a capital offender, we can agree that that investment
has in some important sense proved a failure. As any scientist can
confirm, however, more can often be learned from our failures than
from our successes.
We can safely say that much of the information that was in
a criminal’s head is gone forever once he’s been killed;
and we can never be certain that we wouldn’t have needed any
of it. Timothy McVeigh is an excellent example. Never mind
what helpful info psychologists might have gleaned from studying him
further; what about whatever he knew about “John Doe”?
Those who have reviewed the documents produced at the last minute
by the FBI seem generally to agree that the documents would not have
led to McVeigh’s exoneration. They also seem to agree, however,
that the documents contained substantial evidence that McVeigh acted
in concert with at least one other person. Had McVeigh lived another
50 years, I think the odds were pretty good that sooner or later,
he would have let drop at least some further clue about who that person
was. Similarly, I've read that Nazi prosecutors found themselves unable
to convict at least one suspect because the only witness who could
have given compelling evidence against the suspect had already been
This argument parallels the argument for concern regarding premature
extinctions of species. We almost never know all the valuable services
performed by a given species within our ecosystem, or all the potentially
valuable substances for which it may be the unique source; and once
the species is gone, so are its gifts. Destruction is easy;
creation is hard. Is punishment in and of itself really so precious to us that we're
willing to pay any price for it?
Another urgent consideration is that we have never yet been
managed to devise a system that effectively ensures that only the
guilty are executed. Many innocents have in fact been killed,
and no other punishment is so utterly irreversible: good reasons to
leave such judgments to the omniscient.
Again, if there is one ethical injunction that seems inherently compelling,
it’s “thou shalt not kill.” Most people would probably
agree to an exception when reasonably necessary for self-defense;
but society need not kill for that reason when it can impose life
imprisonment. In our civil legal system, only that degree of force
is considered justified which is reasonably necessary in order to
defend oneself from imminent danger; you’re not allowed to shoot
someone threatening to pelt you with tomatoes, or who’s already
been caught and confined.
And even an agnostic like me believes that killing, however justified,
takes a toll on the psyche and soul of the killer, whether the killer
be an individual or a society. Turnover among executioners is notoriously
high. The fact that most of us are more insulated from the effects
of the killings we condone does not mean there are no indirect effects.
“[W]hatever a man soweth, that shall he also reap.” (The
Bible, King James Version, Galations 6:7.)
What about the other pros and cons? Here’s a tally:
satisfy the victims. I find this reason the most difficult to
refute; who am I to say what should satisfy the victims of heinous
crimes? Certainly, they deserve all our sympathy and more. Nonetheless,
I do not believe killing the criminal is really the best means to
alleviate victims’ suffering in the long run, and even if it
were, I'm not sure anyone's life should be forfeit just to make someone
else feel better.
do justice. Two wrongs don’t make a right; and they certainly
don’t make the world a better place.
make sure the criminal never has the chance to repeat his crime.
Life imprisonment would be just as effective. Shame on us if we can’t
trust ourselves not to let lifers out. If the parole system needs
to be reformed, it’s our responsibility to do it.
Studies show little if any deterrent effect. First, criminals don’t
believe they’re going to get caught, and those with sufficient
foresight to be deterred probably are less likely to be caught.
Second, for those with sufficient foresight to be deterred, life imprisonment
should be as effective.
avoid the great expense of incarcerating the criminal for life.
Capital punishment is even more expensive--even if you base
the cost only on the system as it presently exists, which we know
has in fact resulted in the execution of innocents. If we improved
the system to try to obtain greater assurance that such mistakes were
avoided (as we certainly should, if we’re not going to abolish
capital punishment), implementation of capital punishment would likely
become still more expensive.
As for vengeance,
“Vengeance is mine, I will repay, saith the Lord. Therefore
if thine enemy hunger, feed him; if he shall thirst, give him drink”
(Romans 12:19-20, King James Version.)
Personally, I believe anyone who kills other than in self-defense
is mentally or emotionally ill or defective, and I’d prefer
rehabilitation. To the extent rehabilitation is not feasible, I’d
prefer restraint. (I used to suggest only half-jokingly that the best
way to make sure the punishment fit the crime would be to confine
criminals only with others convicted of the same crime; i.e., pot
heads could be confined with other pot heads and would have to live
in a society in which everyone is mellow but not much gets done; thieves
would suffer theft but little worse, etc.--and as an incidental benefit,
imprisonment would no longer afford training for worse crimes.)
Given all these considerations, I hope and believe that we in the
U.S. will eventually evolve to the point that we join the rest of
the developed world in abolishing capital punishment.
Cloning and Abortion. I believe we have a way to
go in our understanding of ethical issues in these areas.
Literature and history caution that if we attempt to create or design
living beings, or even to exert selectivity regarding which human
beings we’ll keep alive, we usurp divine prerogatives, we’ll
inevitably botch the job, and we’ll pay a monstrous price (e.g.,
Mary Shelley’s Frankenstein and Nazi eugenics programs).
We have feared to broach questions about what makes a life
valuable or worth protecting, for the best of reasons. In the past,
those who were willing to take it upon themselves to make judgments
about who is valuable and who is not have used their judgments to
justify horrific crimes. Nonetheless, I don’t believe we will
succeed in avoiding such questions forever.
Several important issues need to be distinguished:
human life more valuable than other life? For purposes of this essay,
let me use “valuable” as short-hand for “worthy
of protection.” Such value might or might not be economically
calculable for certain purposes; however, I mean to encompass all
possible types of worth, not just economic.
all human life equally valuable?
potential human life as valuable as actual human life?
human life is more valuable than non-human life, why?
is it that makes any life, human or non-human, more or less valuable?
The issue of “value” or “worthy of protection”
should be considered from many points of view; the following come
of the being itself; i.e., right now I’m plenty valuable to
myself, but if I were brain-dead, I presumably wouldn’t know
of the beings most immediately affected by its existence or non-existence;
i.e., I am, I hope, precious beyond all measure to my boyfriend, probably
less so to my cat, etc.
of the larger system or ecology of which it is part; i.e., I contribute
in various ways to the welfare of my clients, my friends, certain
arts organizations and charities, my nation, the world. Of course,
I also suck sustenance from them in turn, although I hope it all works
out in an ecologically sustainable manner, so to speak.
of future generations, to the extent that the being under consideration
may possess unique attributes or information that would be lost not
only to us, here in the present, who might or might not be able to
put it to use, but also to our successors in the future, who might
find uses for it that we can’t imagine; i.e., maybe the unborn
will pillage my journals; or see the discussion above on the death
penalty, re- the failure the prosecution of a Nazi because his fellows
who might have testified against him had all been executed.
The point of view of future generations is, of course, the most difficult
to assess except in hindsight but is extremely important. As you can
see, if you look at the first three criteria, you might expect we’d
usually conclude that the most valuable people were the ones that
are the most conscious and appreciative of themselves, with the biggest,
most loving families, and who are the most successful and helpful
in their work and communities. Now, a person like that might indeed
also be valuable to future generations; but there have also been many
people who were relative or even utter failures by some or all of
the first three criteria but whose beneficial impact on the world--foreseen
by no one during their lives--was enormous after they were dead. Van
Gogh and Edgar Allen Poe leap to mind, and there are many others.
The admonition is that we should be as slow as possible in making
such judgments, for we’re blinkered by our times, among other
Also, I think the Hindus or someone like that are on to something
with the idea that ALL life is valuable and worthy of protection.
And I believe that far too often, we succumb to arguments or, more
often, fears, that the resources available to us are limited and will
force us to make unpleasant choices such as, for example, we cannot
afford to feed every child, so we’ll only feed our own. (In
truth, if we took all the resources we now devote to destroying one
another and devoted them instead to helping one another, it’s
hard to believe we couldn’t lick our problems sooner or later.)
One more note: It is very important that we be able to accept that,
for a number of reasons, we may never be able to answer all of the questions
set out above, at least not for now and perhaps never.
All that being said, however, it is equally important that we allow
ourselves to ask such questions. Asking them is not a useless exercise,
for it is only after giving ourselves permission to ask such questions
that we can best become aware of some of the issues we’ve been
avoiding and assumptions we’ve been making.
With respect to cloning, as a practical matter, it
seems clear that holding ourselves back from exploring new technologies
has usually proved both futile and benighted. We can’t even
stop ourselves from advancing nuclear weapons technology; surely that science is no less “evil” than cloning, which seeks to create life. Remember the discussion of systems and dharma
above: if you create an artificial blockage in the hope of restraining
natural tendencies, you should expect to have to make continual efforts
to shore up the blockage, and even then, the forces restrained will
probably eventually either overflow or otherwise escape the blockage.
We humans have probably tried to restrain ourselves from exploration
since humankind began, and we seem to have failed nearly every time.
The Amish have resisted most technological advances within the last
200 years or more, but in doing so have all but amputated themselves
from the rest of humankind. Very few such prohibitions have stood
up to our lust for knowledge and power over our environment. And more
often than not, humankind has benefitted as a result, although nuclear
war and pollution can certainly be adduced to the contrary. If there
is any way to use and abuse knowledge, someone will probably do it;
nonetheless, overall, I for one believe we are better off as a result
of most of the exploration and invention humans have managed so far.
With respect to abortion, current U.S. law recognizes
a woman’s right to abortion, subject to certain restrictions,
based upon her Constitutional right of privacy. It also seems to me
that forcing a woman to carry an unwanted pregnancy to term amounts
to involuntary servitude, which is prohibited by the Constitution.
As I understand, this argument has rarely been made and has thus far
been rejected by the courts but, in my view, without adequate consideration.
If medicine discovered a way for fathers to carry a fetus to term,
I seriously doubt the courts would decide that they should under any
circumstances be required to do so.
I also think a crucial distinction should be made between actual
human life and potential human life. Embryos of the age that
I gather are likely to be used in cloning research, for example, are
far from having a human brain in any meaningful sense, let alone consciousness.
I do not believe a week-old human fetus with the I.Q. of a carrot
deserves the same protection as an adult, or even the same protection
as a chimpanzee capable of using sign language (not to mention gorillas,
whales, dolphins, porpoises, and other creatures that probably have
more actual consciousness, intelligence, and emotion than many of
the fetuses some people are so anxious to protect.) U.S. courts acknowledge
the need to balance fundamental rights when they conflict, but it
does not seem to me that the “rights” of a fetus that
merely has the potential to become human, but has not yet developed
anything resembling consciousness, should weigh the same as the mother’s.
It’s not that potential human life has no value. To would-be
parents with limited ability to produce an embryo of their own, the
value of such an embryo might be beyond measure. And clearly, as a
human fetus gradually develops from being only a potential human to
being an actual human, the value or regard we accord it should increase.
But among other things, I’d like us to get beyond the human
chauvinism, if not myopia, that seem to prevail.
Let us also take responsibility for the fact that we are now--by default--making
lots and lots of decisions every day that determine which innocents,
developed or undeveloped, human or non-human, get to live or die.
By choosing to spend, or not to spend, our money, time, and energy
helping people who are sick or starving, let alone animals. By choosing
whether or not to start a war.
I’m not anxious for governments to start making a lot
more decisions for us as to which lives deserve protection. Rather,
I’m saying it’s time for us to start thinking about such
decisions and trying to make them in a responsible way, instead of
throwing up our hands in horrified helplessness, as if the refusal
to decide were not a decision in itself.
Responsible action is not going to sound like, “It’s
a matter of God’s will--and we know what He thinks and you don’t.”
It’s going to sound more like, “We’re not sure what
the heck we should do, but we recognize our responsibility, so let’s
start by gathering information and asking questions, including the
ones we’ve been avoiding.”
Discrimination. First of all, many of us are terrible
human chauvinists. To me, it seems obvious that many
animals feel emotions little different from ours, and we know that
some are capable of using language and even tools. I simply do not
see how such creatures can be believed not to deserve respect and
consideration. Cf. the discussion of abortion, above.
I also believe that discrimination based on race, ethnicity, sex,
gender orientation, or age is far from overcome and that it hurts
It’s not that we should never recognize any distinctions relating
to gender, age, etc. Rather, I think we should try to understand as
fully as possible the inherent natures of different kinds of creatures,
so that that understanding can be used for everyone’s benefit.
(See the concepts of dharma and justice in the essay on this website
entitled, Cells and Systems.) However,
we must at all times be keenly alert to the hazards of generalization,
and, absent conclusive proof to the contrary, we should assume that
any negative assessments arise from nurture rather than nature.
I doubt most proponents of affirmative action ever claimed it would be an ideal solution. What it clearly WAS--although
no one seems to want to say so--was the CHEAPEST solution.
There are lots of other possible solutions that might be more fair
and effective, and would probably cost a lot more.
My objection to proposals to abolish affirmative action is
that no one is offering any alternative solution to discrimination,
the consequences of which, as of this writing, still seem to me to
be much more serious both for its victims and for society in general
than do the problems resulting from affirmative action.
Gay Marriage. I’d like someone to acknowledge
in so many words that, if we restrict marriage to “one man,
one woman,” we’re basically saying that THE most important
thing about marriage, to the exclusion of all others, is that there
must be one penis and one vagina.
we've decided that love, commitment, children, sex, etc.—none
of that really matters. Because ALL of those criteria can be lacking,
and we'll still allow you to marry or remain married, so long as you
happen to have the right bits of flesh between your legs; and even
where all other possible criteria are present, if you don’t
have the right bits of flesh, you can’t be married.
We don't even
require sexual relations between the penis and the vagina, since we'll
permit a gay man and a lesbian to marry. BUT THERE MUST BE ONE PENIS,
ONE VAGINA—this we hold so sacred that it merits a constitutional
Right. I can
imagine that in eons past, this definition of marriage might have
been the best we could come up with; but by now, I think we can and
should do better.
Arguments that permitting gay marriage would somehow weaken the institution
of marriage seem unpersuasive. At the minimum, surely it would be
more effective to use direct incentives or educational programs, than
to exclude certain classes of people from eligibility. I suspect that
a "culture" that encourages both partners in a marriage
to work 60 and 70 hours per week does far more to weaken the institution.
Power. High-level radioactive waste from nuclear power plants
must be stored for 100,000 years or more before it can be safely disposed
of as ordinary refuse. (See site maintained by the University of Rochester
History Dept. at http://www.history.rochester.edu/class/EZRA .) To
put this in perspective, the last ice age ended only 8,000 to 10,000
years ago. Although not all radioactive waste from nuclear power plants
is high-level, if nuclear power continues to be used, the amounts
of such wastes that are generated will accumulate.
When I was in grade school (ca. 1965) and first heard of the debate
about nuclear power, we were told that even though no one knew what
to do with the nuclear wastes now, science would soon solve that problem.
As of this writing nearly four decades later, the closest we’ve
come to a solution is to pile all the wastes under Yucca Mountain.
I’m not saying we should never use nuclear power. In deciding
whether and when we should use it, however, we should try to take
all of the true costs and benefits into account, including the expenses
not only of transporting and storing it now, but also for monitoring
and maintaining that storage for up to 100,000 years (not
to mention the costs due to accidents, etc., that should be expected
over such a long period). I’m no economist, but I don’t
see how the benefits could possibly be worth the true total
costs. Even if they were, however, I strongly doubt that any of the
companies who profit from nuclear power production, our government,
or anyone else are in fact saving up to pay for 100,000 years of storage
(or buying sufficient insurance to cover 100,000 years of accidents).
Environmental Insurance. Since the potential costs
of many activities may be uncertain, it may be that they should be
dealt with through insurance. E.g., we need to take into account the
potential costs of failing to limit harmful automobile emissions now:
extreme weather, climate and shoreline shiftings, disasters, diseases,
extinctions, mutations, etc.
We should require the companies that profit from automobile or gasoline
sales or that give rise to nuclear or other wastes to include in the
prices they charge an amount to cover the potential costs. Rather
than having the gasoline companies or government decide what cash
reserves might be needed to cover such costs, however, we could let
the actuarial experts, insurance companies, analyze the risks and
price and sell the necessary insurance coverages. Insurance companies
will then either offer the coverage and perhaps become lobbyists for
action limiting deleterious business activities, or they’ll
decline to offer such coverage, in which event the companies profitting
from such activities should themselves have to fund appropriate reserves.
Such an approach would be subject to miscalculation and risk, but
it would be better than the current situation, in which we, our children,
and future generations are and will be picking up the tab for profits
to company executives and shareholders in the short-term. In this
connection, we’ll need to develop even more sophisticated methods
for assigning standardized measures of uncertainty re- long-term costs
And if the risks of any activity are uninsurable, we should be thinking
very hard about whether we should continue to do it.
Need for a New “Religion.” We can only
be agnostics, or have faith; if we're honest, there are no other possibilities.
Some people think that without belief in God, we’d all become
amoral monsters. I whole-heartedly disagree. Life need not be meaningless
for agnostics or atheists--we CREATE meaning, by choosing worthwhile
goals and acting toward realizing them (see the essay entitled, The
Meaning of Life).
Thus far, many fundamentalist and other traditional religions have
had an aggressive strain similar to the drive that helps biological
species survive among and even obliterate other species competing
for the same resources. That strain in religions consists of doctrine
to the effect that those who do not adhere to the chosen religion
are damned and that it is the duty of the adherents of the chosen
religion to convert all others to it. I’d like to believe the
world is in the process of learning a lesson about the limits of such
doctrines, especially to the extent they’re used to justify
violence. Maybe we’re getting ready for an evolutionary advance,
one that recognizes that competing beliefs should be respected, examined
for their potential value and discussed, rather than exterminated.
I also believe it would be an advance for religion to place more emphasis
on personal responsibility, as opposed to blind adherence to the dictates
of church officials.
reading up on Islam and have been struck that Mohammed, like other
greatly inspired and well-intentioned persons, said many extremely
helpful things, many of which enabled important, even revolutionary
advances for his time. But the moment he died, struggles began among
his followers, purportedly about matters of doctrine but which also
look a lot like power struggles; and this seems to me to have occurred
to some degree in the history of every religion. Sometimes the struggle
is for the survival of the religion against nonbelievers; most of
the time there is also struggle within the religion among factions
within it; in either case, there is more often than not a political
dimension. And it seems to me that in every religion I know of, it
was from and after the death of the founder of the faith and in the
course of an ensuing political struggle that many of the most ridiculous
or cruel bits of doctrine were adopted or at least prioritized.
E.g., in the
actual sayings of Mohammed and other great religious leaders, sayings
about what's important in order to be "good" are usually
predominantly oriented toward: avoid doing harm to others, help the
weak and the poor, concern yourself with amending your own faults
rather than with finding fault in others, don't be overly concerned
with amassing material wealth, etc.
the generations following the original leader's death, the emphasis
seems to come around to, if you don't follow our exact doctrine you're
damned, various strictures relating to sexuality (re- homosexuality,
birth control, masturbation, gender and celibacy of priests, etc.),
or to hair (shave your head, wear side curls, never cut your hair
because it functions as antennae), or to food (never eat meat, never
eat meat with milk, eat a cracker and pretend it's your god but don't
chew it), etc.
It seems obvious
that any god worth a goddamn would take one look at us and say, "Hey,
whatever you think I said about masturbation or hair cuts, let's just
forget that part for now. Please just concentrate on NOT KILLING.
Like, no killing at all, none, ever, at least not of human life. Most
of you actually can probably already handle that; it's mainly just
a matter of figuring out how to fortify yourselves against being talked
into it by psychopathic leaders, or figuring out how to deal with
smaller-scale psychopaths. [I mean, it's pretty obvious by now, most
wars mostly benefit an elite who profit from them, not the average
folks who actually fight them.]
really need another focus point, how about protecting and caring for
every single child on the planet.
really need yet another focus point, how about, saving your planet.
you've got those three things covered, call me back and we'll work
on the next level; but for now, all that other stuff about obedience
to religious officials, masturbation, hair, etc., seems to be more
of a distraction than a help."
if you buy that, when you think about voting to fill a governmental
office, ask first what each candidate has actually done to reduce
killing, ensure the welfare of children, protect the environment.]
I'd also like
to propose a simple guideline for evaluating religious or other strictures:
Do unto yourself as you would do unto others. I.e., I'll have more
confidence in the good intention behind any stricture if those imposing
it subject themselves to it. E.g., you think all women should wear
a burka? More convincing if you impose the same on all men. Genital
mutilation? Ditto. (As Gloria Steinem put it, "If men could get
pregnant, abortion would be a sacrament.")
this all needs work.]
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