The Mechanical and Symbolic Aspects of Law

The laws of any political community seem to have two aspects. One aspect is mechanical while the other is symbolic. However too often when we think about law we either focus on the mechanical aspect of law at the expense of the symbolic or vice versa. Below I will describe how any adequate understanding of law requires a synthesis of both the mechanical and symbolic aspects of law.

On one hand law is mechanical in that part of the purpose of the existence of a law is to prevent certain kinds of acts from occurring and to create certain outcomes when a transgression of a law has occurred. The law against theft is thus both a technical means to retroactively punish people who have committed theft, and also a technical means by which the presence of theft can be prevented within the community. In this aspect law is just an instrument that is used to prevent certain kinds of acts from occurring, and ensuring that all instances of an act are punished.

But if we think of law only in its mechanical aspect we are left with a great deal of confusion. For example, the argument that the prohibition of drugs by law is a bad idea because people will still find a way to use, purchase and sell drugs and many people are not punished for use or trafficking of narcotics is based on seeing law only in its mechanical aspect. If the purpose of law is to prevent certain acts from occurring and ensuring punishment is doled out, but a law has been historically shown to be unable to perform these functions, than from a mechanical perspective the law seems ludicrous. But while many people may find this argument about the prohibition of drugs convincing it cannot stand on its own because this argument would equally apply to acts such as assault, murder and theft. The fact that we have laws prohibiting assault, murder and theft does not prevent these acts from occurring, as people who want to commit these acts strongly enough and think they can get away with it will still commit these acts. Furthermore, many people who commit these acts are able to get away with it and so law is not able to dole out punishments for all of the instances of the crime that are committed. So one could analogously say that laws against murder, theft, and assault should be repealed because the laws in this case do not effectively proactively prevent the occurrence of the crime or ensure that every instance of the crime is punished. However, such an argument would seem to be absurd as it leads to the conclusion that unless a law is completely, or near completely, efficacious in preventing certain acts from occurring and doling out punishments it should be repealed. And for the foreseeable future at least law in general does not seem to even have the potential to have this level of efficacy.

The preceding thus shows how the mechanical account of law is insufficient, as the mechanical account cannot explain why laws should be retained if they are not efficacious in preventing criminal acts from occurring. So, therefore law must be more than an instrument to proactively prevent people from performing certain acts and to dole out punishments to all who have committed certain acts.

The symbolic aspect of law however complements law’s mechanical aspect as law is not just a means to prevent people from committing acts but a way of a community setting down what it disapproves of, and what people may be legitimately punished for doing. If we take this symbolic aspect of law into account we can distinguish between the case of murder and prohibition of drugs because while both sets of laws may not be efficacious in preventing transgressions of the law from occurring and punishing instances of the crime, the case of laws against murder and drugs differ in their symbolic aspect as the ground for disapproval of murder and the grounds for disapproval of drug use differ significantly. The disapproval of murder typically stems from some notion that one citizen of a community does not have the right to take the life of another, because that other citizen merits respect and must be allowed to live their life. This is thus a case in which we have an interaction between citizens in which one citizen is quite clearly harmed by having their existence negated. Whereas in the case of drug use and drug trafficking it is hard to see how the decision to use drugs is any different from other choices that individuals make about their private lives. People may disapprove of drug use just as they disapprove of other’s religious or cultural practises, but it is hard to see how drug use damages any vital interests of an individual other than the drug user. Similarly, purchasing and selling of drugs seems to be hardly distinct from the purchasing and selling of other unhealthy food items, or legal drugs such as alcohol. So what is doing the work in the argument that prohibition of certain drugs is unwise is not just that the laws are not efficacious, but that also these laws police behaviour that is analogous to behaviour that in other contexts we see no reason to punish through the law. Consequently these laws are arbitrary and unjustifiable, as it seems inconsistent and hypocritical to allow individual to make the choice to consume unhealthy food, while also prohibiting the ingestion of unhealthy narcotics. Therefore, the symbolic aspect of law helps us to better understand law as a whole, and we cannot understand law merely in its mechanical aspect, as the symbolic helps us understand what grounds our disapproval of an act, and whether this is in line with our fundamental values.

Of course there would be those who would argue that the sale and purchase of drugs and their use should be outlawed because they damage the environment in which we raise citizens, as making something legal tends to mandate social approval of what has been made legal. This is a legitimate position for those who think that drug use represents a unique evil that merits state mandated punishment as it threatens to corrupt the youth and lead them down an unproductive path. But this kind of approach raises the further question of what kind of evils that merit punishment does it make sense to regulate through law?

Most people would say that when one person in a committed relationship cheats on another they have committed an evil that merits punishment as they have violated the trust of their partner, and they have revealed that they are not worthy of trust or respect. Yet, very few people would call for a law against adultery because law does not seem like the kind of thing that should regulate these types of acts. The coercive force of law is clumsy and is not the most effective way of helping people to overcome their tendency to commit infidelity. Thus, even though adultery is arguably a social evil, it is not the kind of social evil that it makes sense to regulate through the coercive apparatus of state law. And to bring this issue back to the original subject of drugs, perhaps drug use is analogous to adultery, in that while drug use may be worthy of disapproval and punishment it is not something that should be dealt with through coercive law as coercive law does not help people to deal with the challenge of drug addiction, but just punishes them unthinkingly for engaging in drug use. In this case we see that talking only about the symbolic aspect of law, whether we disapprove of it, and think it should be worthy of punishment, is not enough to determine what law is and ought to be, but instead we need to complement the symbolic aspect of law with the mechanical. If we take account of both the mechanical and symbolic we see that part of assessing the validity of a law involves assessing whether the outcomes that law creates are an effective way of dealing with the problem with the illegal act. It makes sense to address murder through the retroactive application of law as the murderer is a threat to others in the community and thus putting them in prison is a good way of ensuring security. On the other hand the user of illegal drugs is more of a threat to himself than of the community so it is hard to see how fining him or putting him in prison helps the problem that drug use poses as the drug addict poses more of a threat to themselves, than to others.

Thinking this way involves both the symbolic and mechanical as we are both examining what merits disapproval and what kind of society we ought to have, and the mechanical way that different social institutions operate. Unless we can synthesize these somewhat opposed aspects of law our understanding of it will be impoverished.

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On Critical Thinking and Instrumental Thought

Critical thinking is often praised as a valuable asset in modern liberal democratic societies. While this may be true the admiration that follows critical thinking raises the question of what actually constitutes critical thinking proper. It seems to me that when people refer to thinking they mean either one of two things, but neither of these understandings of critical thought captures the meaning of critical thought if we take the idea to its logical limit. In fact, when critical thinking is taken to its logical limit it can be plausibly construed as calling into question the notion that thought is valuable merely because of its ability to produce benefits in the world. Consequently, critical thinking involves more than questioning means or particular goals, but rather questioning the whole notion of thought as a tool to produce positive results in the world.

Often, when people talk about critical thinking, they refer to the process of being able to come with a creative solution to achieve a predefined end goal. For example, on this understanding of critical thought, the politician who is able to discover the set of policies that produces the greatest amount of economic growth for a nation is a critical thinker and consequently displays critical thinking abilities as he is able to reflectively examine the policy alternatives available and figure out which one will best achieve the end of maximizing economic growth. I call this meaning of critical thinking, “instrumental critical thinking.”

On the other hand others understand critical thinking as the process of not only reflectively evaluating means to a given end, but reflectively evaluating which particular ends or values ought to be pursued. Consequently, the activist who questions the politician’s pursuit of the maximization of economic growth because of its deleterious effects on equality and ecological preservation exhibits this understanding of critical thought, as he is not only reflecting on means, but what ends ought to be pursued. I refer to this understanding of critical thinking as “evaluative critical thinking.”

While the two conceptions of critical thinking elucidated above are opposed in that one focuses on means, while the other focuses on means and ends, they are alike in that in both cases what is taken for granted is that the point of critical thinking is to produce some kind of benefit in the world. In the case of instrumental critical thinking, critical thought helps us to efficiently pursue the ends that we already accept. Similarly, evaluative critical thinking helps us to produce value in the world by ensuring that we are pursuing the proper goals or values. In both cases thought is a means to some further end beyond itself.

It seems that the essence of critical thinking is questioning as both understandings of critical thought explained above put forth a form of thought that questions something that is given, whether it is a given set of means or a given set of ends. Consequently, if we take this questioning, which forms the core of critical thought, to its furthest limit we are driven to not only question means and ends, but, also to question the notion that the point of thought is to produce some tangible benefit in the world, whether this benefit is more efficiently growing our economy, recognizing the values that we ought to pursue, or providing us with a better understanding of the world.

But some might say how could thought not simply be a tool to some end? We think so that we can solve problems don’t we? If thought is not meant to be a tool to produce benefits then what would be the point of it? We do think to solve practical problems and create benefits in the world and there is nothing wrong with this form of thinking, but this is not the only form of thought, and more importantly, form of critical thought that is possible. Sometimes we begin to reflect on a topic like justice and while initially we are trying to solve the problem of what the meaning of justice is, as we think, the wave of thought carries us and we spontaneously jump from one stream of thought to another without any sense of direction towards a particular end. While initially we set before ourselves a task in the process of thinking we lose our sense of this task and our driven as if possessed by a demon of thought from one stream of thought to the next. But in this moment we do not merely lose a sense of our task instead we lose a sense of ourselves as subjects trying to know a particular object, at that moment I am not a subject thinking about the object, instead I am thinking constituting itself. This appearance of thinking in this world is not a means to an end, but thought as something making itself present through its constitution in us, where the “I” and “we” disappear into thinking itself. This suggests that thought cannot simply be understood as a means to producing some benefit in the world. Thought makes its appearance as a tool to be used by humans, but thought also makes it appearance in a way in which it is not subordinate to human will.

Consequently, given that there seems to be a form thought does not aim at producing benefits in the world it seems that critical thinking would not lead us to merely question means or ends, but rather to question the entire enterprise of thinking of thought as merely a tool to be used by humans for their benefit. This form of critical thought that questions thought understood as a tool, may not prove to be particularly immediately beneficial for societies, or the individuals who are constituted by it, but it does represent the result of taking critical thought to its furthest limit. So those of us who are committed to the practise of critical thought must necessarily question the vision of thought as a tool to produce further ends.

This entry is indebted to David Loy’s great book Nonduality – A study in Comparative Philosophy as my description of this kind of thought is deeply influenced by his thoughts on nondual thinking and I am also indebted to bloggingisaresponsibility for writing about David Loy’s book as this introduced me to it.

The deGrasse Tyson Philosophy vs. Science Debate: The Authority of Science, Instrumentalism and Technology

Recently, Neil deGrasse Tyson made some comments questioning the value of philosophy. Massimo Pigliucci who writes on the blog Scientia Salon has addressed his comments directly in a recent article, but the whole debate on the value of philosophy as opposed to the value of science raises some interesting questions and concerns that I would like to consider.

Often, critics of philosophy, condemn philosophy as a useless practise because it does not seem to lead to any tangible benefit for society. This was not deGrasse Tyson’s exact criticism, but this critique is so prevalent within society that it has become a banal commonplace that philosophy is a useless endeavour that does not benefit mankind in any way. Interestingly, this is the same critique that Francis Bacon made of the Scholastics within the New Organon, and the critique that Marx makes of previous philosophers within the Theses on Feuerbach; apparently the philosophers will never learn to just get in line already and devote themselves to improving the world. However the fact that this critique of philosophy is prevalent reveals that the popular conception of value within postindustrial societies is one that is fundamentally instrumental. Or to put this more clearly, it is a conception of value that sees something valuable if it can help us efficiently pursue desirable ends. This instrumental conception of value is theoretically problematic, as it cannot explain some of the most basic experience of value that appear within everyday life. Furthermore, the prevalence of this conception of value is problematic as it reinforces the idea that science’s authority derives from its ability to contribute to the development of technology. Consequently, this conception of value distorts our understanding of authority of science itself.

Our everyday experience of value attests to the fact that activities can be valuable for instrumental reasons, but it also attests to the fact that activities can be intrinsic valuable (be valuable on their own account). For example, even though it is true that we might say that a dishwasher is only valuable because it allows us spending less time washing dishes, and consequently only valuable for instrumental reasons, it does not make sense to say that friendship is valuable only for instrumental reasons. Friendships might be valuable because they open doors for people, but the main value of friendships seems to be an intrinsic one as opposed to an instrumental one, as what we value about friendship is not some end-state that friendship produces, but rather the fact that we are in a position of sharing our lives with another being who we respect or admire. The value of such a state cannot be made sense of from an instrumental perspective, so from a purely theoretical angle it seems that a purely instrumental conception of value is fairly implausible, as it is not able to adequately explain the everyday experience we have of value.

The prevalence of a purely instrumental conception of value which not only condemns philosophy, but also the arts, is not only problematic because it does not stand up to criticism at a theoretical level, rather it has a pernicious influence on the way that people understand the authority of science. People tend to see science as an authority within postindustrial societies and associate science with the development of technology. As a result of this people tend to think that what gives science its claim to authority is that science has lead to the development of extensive technology and technological systems. This is quite clearly not a logical deduction, but if you ask non-scientists why we should listen to science they will ordinarily point to its ability to produce various forms of technology and technological solutions. The awe that surrounds science has less to do with the fact that people find that science explains the world, and more to do with the fact that people think that science has led to the great technological progress that society has experienced. Furthermore, a purely instrumental conception of value reinforces the idea that science’s claim to authority derives from its ability to facilitate technological progress, as a purely instrumental conception of value can only see value in the ability of science to contribute to the production of particular ends like technology, not in the ability of science to develop theories that adequately explain the world. Consequently, the prevalence of a purely instrumental conception of value reinforces the idea that science gets its authority because of its ability to facilitate technological progress.

The notion that science gets its authority from the production of technological progress is deeply troubling because this neglects the fact that science ought to have authority in society, over mere conjecture, not simply because it makes our lives more convenient, but because science give us reasonably reliable way to understand the physical world. Science is not only a machine from which great technological gifts are bestowed upon the faithful, rather it represents the human attempt to understand. Consequently, while a purely instrumental conception of value seems to justify the value of science while rejecting the value of philosophy and the arts, in so doing it encourages the vulgarization of the value of science within the public, as science begins to be seen as an assembly-line for society rather than as a spirited attempt to understand the world. Interestingly enough then a conception of value that can recognize the intrinsic value of truth is better placed to provide the public with a proper appreciation of the authority of science than a purely instrumental conception of value, as the former conception of value can recognize that science has its authority because it provides s with a reasonably reliable way to understand the physical world. In this way it seems that in order to truly appreciate the value of science we must move past thinking of value in purely instrumental terms.

Instrumentalism and the Love of Learning

Within industrialized countries usually when a child, or someone else for that matter, asks why it is important for them to do well in school, they are told that they should do well in school because this will help them get into a good university and get a good job so that they can support themselves in the future. This instance reflects a problematic attitude in industrialized societies that schooling is primarily the means by which citizens acquire the skills necessary to pursue a career. This attitude is troubling because it tends to stamp out an intrinsic love for learning, by encouraging people to think of any form of learning as merely a means to an end, rather than something that could have value on its own account.

We can see how deeply this attitude manifest itself within industrialized societies, because from a young age we are constantly told that the reason why we need to do well in school and learn things is so that we can get a good job. We are never told that the most admirable kind of human being, might be one who not only has a breadth of knowledge, but also someone who loves learning and is constantly drawn to develop a firmer grasp of the world and their place in it. This shows that members of industrialized societies are encouraged and habituated to think of learning as a tool external to themselves that will help them get the job that they desire, rather than an element of the best kind of life for a human being.

If we become habituated in thinking of learning as simply a means to career improvement our love of learning may be stamped out, as we will begin to only see learning as a means to an end. This is problematic as one thing that gives man his value is that he longs to understand the world and his place in it, not just so he can attain comfort through a career, but because understanding the world and his place in it is an intrinsically worthwhile activity. Therefore, if learning merely becomes a means to career improvement we will be clever beings with a variety of technical skills, but we will lack a fundamental element of what gives us our dignity                                                    

Furthermore, there is great freedom in the attempt to learn for its own sake, rather than to learn to attain some further end.  In such a case one is not doing something that is commanded by necessity. Consequently, learning to pursue a career is a less free activity, than learning because of the intrinsic value of such education. Thus, if we merely pursue learning as something that can help us get a good job, in a certain sense we will be less free than if we pursued learning as an intrinsically worthwhile activity.

Currently, the way that the value of education is framed tends to encourage people to merely think of learning as a means to a career, but at this point it does not seem that this framing has fully stamped out the understanding of the importance of pursuing learning for its own sake. A testament to this is that there are still many people who pursue degrees in the humanities and the social sciences, which have fairly minimal job prospects, because they see the activity of trying to understand what it means to be human as intrinsically valuable.  However, if industrialized societies continue down the path of framing education as merely a means to a good career, over time we may begin to fail to see the intrinsic value of learning, and this would be problematic for all of the reasons I have noted above.