Dastur on Death

In How are We to Confront Death, Francoise Dastur gives us a framework for dealing with death. It is tripartite, with a bundle of observations under the headings Overcoming Death, Neutralizing Death and Accepting Death. There are correspondences at the endpoints to Kubler-Ross’ “Five Stages of Grief” (denial, anger, bargaining, depression, and acceptance, aka DABDA). See Bob Fosse’s rendition of this (Hospital Hallucination) in the musical All That Jazz.

Here’s my take on the central message of the work…

There is death, which is inevitable, and a sense of anxiety engendered by the prospect of death, which we can control, to wit

We must instead stop opposing anxiety with vain resistances and let ourselves be borne (pun intended?) by it in order thus to achieve that moment when it changes into joy.

(Dastur, Page 42).

In other words, we should focus on overcoming our anxieties rather than on the limiting factor of death. “Death” enriches our lives by forcing us to reconsider, reconcile, and perhaps reshape our lives (in a hopefully constructive way).

This is a somewhat novel restatement of thanatological precepts offered by other philosophers, including Nietzsche and Schopenhauer. I’ll pass over in silence that both were troubled men.

In consideration of “death and the meaning of life” it’s useful that Dastur switches our focus from death AND meaning as an inflection point to the range between birth and death as a time of transition.

It’s in that time that we can embrace life rather than dote on death. That’s a useful credo.

I have, however, numerous criticisms of the work. Some of her anecdotal observations are stated as facts and she’s a bit overly categorical in their application. Examples include her characterization of death as “an object of horror for everyone” and the oft recited Freud quotes, “…at bottom no one believes in his own death” and “in the unconscious every one of us is convinced of his own immortality.”

In my incidental anecdotal experience, most people are not preoccupied with the prospect of death and if anything, are in denial. Perhaps that could be measured or quantified in the next GSS. See https://gssdataexplorer.norc.org.

My wife reports patients celebrating their stents by paying a visit to McDonald’s upon discharge. Plumbers’ pants are no longer a fashion statement at Walmart, they’re a sartorial commentary on life.

I have witness people grappling with these issues on their death beds, but usually on the brink of a morphine induced fog. I would hardly call that higher order thinking. It’s more akin to a Kumbaya sort of “coming to terms” moment.


Implications of The Doctrine of Double Effect in Captain America: Civil War

The movie Captain America: Civil War contains a battle scene that serves as a case study on the mechanics and implications of the Doctrine of Double Effect (DoDE). The DoDE was developed to determine morally permissible responses in situations that lead to both good and bad consequences. The DoDE entails trade-offs, where the good outcomes favor the actors (those committing the responses), and the bad effects are to the detriment of all others.

The case in point is a battle is between the Avengers and a group of mercenaries in the city of Lagos, Nigeria, that leads to the death of several Wakandan bystanders in a crowded public square.

The operative question is: Was it morally permissible for the superheroes to put civilians at risk?

The Stanford Encyclopedia of Philosophy gives the following framing of the DoDE (attributed to Joseph Mangan).i

A person may licitly perform an action that he foresees will produce a good effect and a bad effect provided that four conditions are verified at one and the same time:

1. Definition

  1. The Moral Principle Condition–that the action in itself from its very object be good or at least indifferent.
  2. The Means-End Condition–that the good effect and not the evil effect be intended.
  3. The Right Intention Condition–that the good effect be not produced by means of the evil effect.
  4. The Proportionality Condition –that there be a proportionately grave reason for permitting the evil effect.”

Application of the DoDE requires a clear determination of (1) the act, (2) the intention of the act and (3) the consequences of the act. While good and bad consequences may arise from its commission, an act is permissible if and only if the bad consequence was unintended, even if it was foreseen.


At first glance, the DoDE seems plausible because it provides an intuitive mechanic for deciding “right” or “wrong” responses to moral dilemmas. For example, consider the case of a pregnant woman who has cancer of the uterus. A hysterectomy will save her life but abort the pregnancy.

Here is a decision table with instantiations of the four DoDE conditionals:

Act = Hysterectomy

Moral PrincipleRemove cancerous uterusGood
Means-EndSurgery not abortionGood
Right IntentionKill cancer (intended) and not child (though foreseen)Good
ProportionalitySaving mother greater or equal to saving childGood

Since all four conditions are met, the act (hysterectomy) is deemed morally permissible under the DoDE. The litmus test is that pro-choice advocates and even pro-life states permit abortions given the above stated circumstances. Pro-lifers would also be encouraged to learn that abortion in and of itself is not condoned according to the DoDE. Abortion is bad because it fails all four conditions. In effect, abortion without just cause equivocates to murder, and by the proportionality criterion advantages neither the mother nor the child.

Other plausible applications of the DoDE include tactical bombing (permissible) versus terror bombing (impermissible), diverting a trolley with a switch (permissible) versus pushing one person in its pathway to save five others (impermissible), and sacrificing one’s life for others (permissible) versus committing suicide (impermissible).ii

DoDE determinations grow in complexity with issues entailing time criticality, increasing numbers of people and property. There are numerous scenes in Captain America: Civil War where conventional military and unconventional actors (be they vigilantes, mercenaries, or superheroes) cause casualties and/or collateral damage to each other and innocents, with little or no apparent regard for an overarching mission objective. 

2. Application to the operative question

We turn now to consideration of the DoDE with respect to the operative question given earlier. The initial objective of the superheroes was to reclaim a biological weapon that threatened all of humanity. Once the weapon was secured, however, a secondary goal of tracking down the perpetrators and their buyer (the presumed ringleader) emerges. 

That secondary goal overarches the pivotal engagement between Captain America, his teammate Wanda Maximoff, and bad guy Brock Rumlov (aka Crossbones). A concise account of the scene is given in the movie’s bonus content:

Crossbones has lured the Avengers into a public battle, under the guise that he is attempting to steal a biological weapon. During the chaos, Crossbones fights against Captain America, but is quickly defeated. In a last-ditch effort, Crossbones detonates his suicide vest, but Wanda Maximoff mistakenly diverts him into a building just as he explodes, killing him as well as several Wakandan relief workers.

It could be argued that the mercenaries were solely culpable for the civilian deaths in earlier scenes. The blame in the subsequent engagements up to the public square incident was shared.

It is in that culminating scene, however, that considerations of fault centers squarely on Captain America, Maximoff and Crossbones. 

It’s a given that Crossbones’ intentions were evil, and that the Avengers were ostensibly the good guys. They fell for his ruse, and thought they had a just cause for action. Crossbones was suicidal and made his intentions clear to Captain America with the words, “When you gotta go, you gotta go. And you’re coming with me.”

Clearly, then, when Maximoff encloses Crossbones in a forcefield and levitates him into the air, her intentions were to protect Captain America, herself, and innocent bystanders.

The look of horror on both Captain America’s and Maximoff’s faces indicate there was no ill intent. He exclaims in the closed captioning, “Oh my . . . [Steve stares up.] Sam . . . We need . . . Fire and Rescue . . . on the south side of the building. We gotta get up there.” That lends to an argument in favor of their absolution.

Per the DoDE protocol, we have identified the act (levitation), the intention (confinement) and the consequences (unintended death of innocents). A translation of the above narrative into a decision table and evaluating the conditions yields the following.

Act = Levitate Crossbones

Moral PrincipleSave livesGood
Means-EndIsolate explosionGood
Right IntentionSelf-defense and minimize civilian casualties Good
ProportionalitySave multiple good actors at expense of a single (suicidal) bad actorGood

We conclude that Maximoff’s actions were permissible by the DoDE, even though they resulted in unintended civilian casualties. In containing and levitating Crossbones, she acted in self-defense and sought to save the lives of others. The immanency and urgency of the threat were sufficient to limit her vision and foresight to the scenario playing out before her (on the ground and not in the air).

3b. Reasonable objections

Though the DoDE analysis of the Captain America/Crossbones encounter has superficial appeal, there are nuances of interpretation regarding the notions of intentions and consequences.

The first objection is that while the DoDE weighs the intended good effects of an action against its foreseen but not intended bad effects, the motivations behind those intentions may be colored by subliminal feelings of anger, revenge, prejudice, or cultural norms. For example, an actor may claim self-defense, but privately seek retribution in killing the attacker. S/he may be unaware of these feelings or hide them from a jury. Killing an attacker intent on self-defense is morally permissible. Motions of rage or revenge color the notion of self-defense as the intent, in turn weakening reliance on a clear-cut determination of intent as a criterion in the DoDE.

The second objection arises from the fact that near-term “good” consequences of an act may be measured solely on the interplay of those involved in an engagement. The long-term “bad” consequences of the act, however, may be far more disproportionate. For example, though “only” eleven innocent Wakandans were killed in the Lagos incident, the often overlooked effects on their families, such as loss of a provider or the long term consequences of children growing up without a parent may far outweigh the good.

These observations point to the arbitrariness of distinctions between intended and unintended (though perhaps foreseen) consequences. Being beyond our purview, the mechanics of weighing intentions to determine the Proportionality Condition may be capricious—thereby undermining the credibility of the calculus. Valuating moral permissiveness based on outcomes alone, rather than intent, is a shortcoming of consequentialism.iii Expressed good intentions may be masking bad intentions, or bad subliminal motivations. This is a conundrum—the moral equivalent of getting away with murder—and engenders feelings of uneasiness.

4. Best Response

Despite its shortcomings, the DoDE is useful in determining first approximations on whether an act is morally permissible. It provides a good starting point for deeper considerations of attitude, intent, near and far consequences.

The nature of the engagement with Crossbones was constrained by the immediacy of the threat, the limited number of primary actors (two members of the Avengers and one villain) and the fact that it centered on subjugation of said villain as the objective. The bioweapon was also known to be secured by this time, eliminating the global threat issue.

It is unfortunate that Captain America and Maximoff cornered Crossbones in a public square, and that his unanticipated self-destruction caused the deaths of innocent bystanders. The script indicates that Crossbones lured them there with the intention of killing them. That puts a measure of the culpability on him. Maximoff did her best to contain the explosion and levitate it to a safe height. That removes a measure of the culpability from her.

It is also likely that an objective audience, beyond the 4th wall of the scene, would be as shocked at the outcome as indicated by the looks on Captain America and Maximoff faces.

Thus, the DoDE provides a moral justification for Maximoff’s actions.

5. Satisfactory?

Were the tactics of the Lagos incident satisfactory? Consider that the litany of disastrous secondary effects of the Avengers’ prior engagements engendered a public and international outcry. These were evidenced by the adverse television coverage, recounting in the Washington, DC meeting with the Secretary of State and the UN’s drafting of the Sokovia Accords (analysis of the latter is given in §7).

Satisfactory? No. Sufficient? Yes, considering the battleground constraints, urgency of response and unpredictability of the outcome. Military engagements must allow for such occurrences.

6. Walzer’s Argument

Michael Walzer has argued that the “supreme emergency” presented by the Nazi conquest of Europe in World War II made it morally permissible for the Allied forces to conduct terror bombings of German cities.iv Britain seemed perilously close to defeat in 1942 and was the only European country that presented an obstacle to Nazi dominion. (The Nazis’ ambitions are also known to have included subjugation of America.)

The intention of the British was to “terrorize German citizens into forcing their leadership into halting the war and surrendering unconditionally.”v The bombing campaign continued with support from the United States Air Force until the prospects of Germany’s defeat was assured. Significant numbers of German civilians were killed or injured as the result. 

Normally, the rules of engagement do not allow targeting of non-combatants. Walzer’s justification for counter terrorism responses using “dirty-hands” tactics, such as civilian bombings, requires that the situation present both a supreme emergency (immanent threat) and a moral disaster. The supreme threat was directed attacks against Britain by the Germans who at the outset had superior military resources. The moral disaster consisted of world-wide subjugation to fascist rule, extermination, and ethnic cleansing. 

7. Avengers analog to Walzer’s argument

Analogs to Walzer’s argument arise in the Avengers’ Lagos incident. The broader goal of the superheroes as given in the movie script was to secure a biological weapon. Though the plot was revealed to contain a ruse by Crossbones to lure and eliminate the Avengers, in their minds it was perceived to be only a potential national or global threat.

An assessment of the moral permissiveness of subduing the mercenaries, Crossbones, and identifying their “buyer” in the public square as given in §2 was determined by the DoDE. The Geneva Convention sets standards for conduct on the battlefield, one of which limits the theater of engagement to areas outside of civilian locales.

Changing the script to having the superheroes harbor a clear and present belief that deployment of the weapon in the city center was imminent—putting millions of people’s lives at risk— elevates the situation to what Walzer calls a “supreme threat” and a “moral disaster.” In essence, the Lagos conflict is broadened from a local engagement to a world-wide conflict.

Thus, by Walzer’s logic, given that Lagos is a sovereign national entity—like Britain in 1942— under supreme threat and subject to a moral disaster, it would be morally permissible for the Avengers to prevent massive deaths, casualties, and collateral damage. 

8. Objections to the argument in §7

Stephen Nathanson offers an objection to Walzer’s argument.vi His concern is that fighting terrorism with terrorist tactics, such as bombing civilian targets, “broadcasts” the message the moral bar can be lowered, thus “increasing the use of such methods.”

Diplomatic solutions are always preferred over military confrontations.  Comprehensive planning should also generate contingency plans. The Avengers could be held at fault for that, considering the civilian casualties and collateral damage in the Lagos incident. Walzer himself once observed that “brutality in war is the product of incompetence, most often incompetence of a junior officer.” A “Plan B” might have led them to maneuver the mercenaries into a neutral battle zone outside the city.

A famous endorsement for advanced planning is the Duke of Wellington’s defeat of Napoleon at Waterloo. Wellington’s advantage was his knowledge of the terrain—having spent part of his youth riding horseback in the region—which he leveraged to his advantage on the battlefield. The British victory led to the decades of peace.

Oversights of this sort are what led to Secretary of State Thaddeus Ross’ “Perspective” speech to the Avengers in the meeting after the conflict at HQ in Washington, DC. After reviewing a litany of disastrous consequences of their interventions, he informs them that the UN has drawn up The Sokovia Accords, approved by 117 countries, that limits the Avengers to operating under the supervision of a United Nations Panel.

It’s possible that such a panel would have advantaged the Avengers, giving them sovereign authority, additional resources, and intelligence prior to and during the engagement.

9. The strength of the objection in §8

Unfortunately, the objections given in §8 would not have altered the events as they unfolded in Lagos. Unanticipated encounters with the ineffable are inevitable in war. Split-second decision making is critical. Captain America and Maximoff were isolated from their team and under resourced.  Crossbones was culpable for both luring the team into the conflict and making the decision to self-destruct in the public square. 

Thus, the DoDE justifies their actions in battle, and is “successful” in accordance with Walzer’s criteria for averting a supreme threat.


i SEP, Doctrine of Double Effect, 1.

ii SEP, Ibid, 2.

iii SEP, Consequentialism, 1.

iv SEP, Terrorism, 2.3.2.

v Ibid, 2.3.2.

vi Ibid, 2.3.3.

The Problem of Evil

In God and the Problem of Evil, B. C. Johnson offers arguments for and against the goodness of God, concluding that considerations of the latter surely cast Him as not all good.

As his opening gambit, he presents a scenario that sets the stage. In this scenario, a baby is “painfully burned to death” in a house fire.

This is enough to call God’s goodness into question but also engenders related concerns.

The question is, if God is all good, all powerful and all knowing, how could He allow this to happen? In the absence of “excuses” for not interceding, the short answer is that God is not good.

Warranting a broader justification, Johnson proceeds to show that in entertaining several possible excuses, the argument against God’s goodness is enhanced.[1]  

The first caveat he presents is that the baby will go to heaven—the ultimate “better place.” That, however, does not excuse the fact that the baby suffered, which seems antithetical to God’s purported goodness. QED—God is not all good.

His second caveat is that God has intentions that are unknown to us. The issue is that mere mortals might take up the cause and burn houses to the ground in support of that higher purpose. That, however, would be as absurd as a lawyer defending a client based on “forthcoming” evidence. In the absence of purported evidence, the malevolent actor, like God, would still appear to be at fault (like the knowing committal of rape and the absence of DNA evidence to prove one’s guilt). Apart from the folly of mortals taking up the mantel of God, the unfulfilled promise merely forestalls the matter of God’s ultimate culpability. In the face of this, the lack of divine revelation of the higher purpose is yet another indictment against assertions of God’s supreme goodness.

The third caveat is the theist’s claim that man has been granted free will. This is purported to absolve God of culpability for all evils, be they of natural causes (such as famine, weather, or disease) or moral causes (such as lying, torture, murder). Johnson, however, turns this claim on its head as a further indictment, for a mortal bystander might not brave a fire to save a baby, but a righteous divine being that could—but doesn’t—calls Its supreme virtue into question. That is the ultimate contradiction. QED—God is not all good.

An Objection

That third caveat—the theist’s free will claim—is revisited in Johnson’s objections to the arguments against God’s supreme goodness. There is a countervailing interpretation presenting a stronger argument, or at least a more favorable defense. In the latter sense, it forestalls the claims against it. Here it is in paraphrase: ‘Man has been given free will so that if he accidentally or purposely causes fires, killing babies, it is his fault alone.’

Free will is the ultimate line in the sand between mortals and Gods. If there is to be any brinksmanship there has to be a brink, and that’s the divide between what God does or doesn’t do on man’s behalf.

The leveraging of the free will argument is that ‘Evil is a necessary by-product of the laws of nature and therefore it is irrational for God to interfere every time a disaster happens.’ Were He to intercede, alterations of the causal order would undermine the predictive and demonstrative power of natural law. Moral determinists would argue that similar mechanics were baked-in at Creation. Consequently, the moral determinations of mere mortals proceed apace, independent of the higher morality of the divine. The problem of evil is thus separate and distinct from any and all considerations of God. QED—we cannot use the problem of evil to disprove the supreme goodness of God.[2]

The ultimate comeback of the theist to any argument is, in Johnson’s words, the “retreat to faith.” We cannot know God, we can only believe. In order to believe, we have to make a leap of faith. In The Grand Scheme of things, over the expanse of time and the scale of the universe, the nature of God is beyond our comprehension.[3]

An interesting argument in the readings references “compatibilistic philosophies” as a reconciliation between God and notions of free will.[4] Among these is the proposition that God, though all-knowing, all powerful and all good, is disengaged, because the real meaning of free will is freedom from coercion.

Thus, God is beyond reproach and upheld as the paradigm of virtue, whereas mere mortals fall short. In that, there is no contradiction in the statement that God is all good and there exists freedom of will in the mortal realm.

An Original Response to the Objection in Defense of the Argument

Johnson offers three contentions: (a) that God is more likely to be all evil than to be all good, (b) God is less likely to be all evil than to be all good, and (c) God is equally likely to be either.[5] He concludes that (a) and (c) are unlikely and (c) cannot be true, based on palpable evidences of excuses that people make in moral dilemmas that reference actual facts rather than suppositions. God’s motives are not ascertainable and that, coupled with the existence of evil, does not exempt him from consideration as being fallible. He concludes that the problem of evil trumps the theist’s doctrine of free will and therefore, the notion that God is all good.

The simpler, ontological argument is that the is no need for a prime mover in creation, let alone one that is omnipotent, for that further begs the question of a first cause. Moral relativism seems to be the more tenable hypothesis if one has a need to impose that assumption, because it separates out concerns over purported divine absolutes, natural law, and admits of cultural variation in the realm of mortals. Frankfurt’s contention that the selections we’re presented, whether natural or synthetic, are subject to choice (Second Ordered Desires) also frees us from the strict determinist camp.

If there is evil in the world, it is a consequence of mortal determination. Were we to admit of a divine being, He is culpable for the conditions that engendered the problem of evil. Call that a consequence of free choice. The prime mover is the ultimate cause, and the buck stops there.


[1] There is a succession of caveats offered by Johnson regarding God’s tolerance for evil (including elimination of “overreliance” on a higher power for outside aid, creating a mortal sense of moral urgency, building virtues such as sympathy and courage, the necessity of evil as a contrast to good so that we may know what good is, etc.), that are beyond the scope of this treatise.

[2] The contingency of the above argument on determinacy will be revisited shortly.

[3] To wit, A child asks God, how much is a million dollars? God answers, “A million dollars to you is like a penny to me.” The child asks God, “How much is a hundred years?” God answers, “A hundred years to you is like a second to me.” The child then asks, “Would you give me a million dollars?” God answers, “In a second.” (Apropos joke.)

[4] Stanford Encyclopedia of Philosophy.

[5] Johnson makes mention that the notion of God’s fallibility is held up in the extreme as contradictory evidence of His non-existence. Short of that claim we assert that God is fallible and thus not all good.

Who is most affected by death?

Regarding the operative question, I’ll discourse on the Platonic dialog Menexenus, followed by the chapter from Tolstoy’s The Death of Ivan Ilyich, then share my conclusions.

In Menexenus, Socrates is advising Menexenus on the composition of a funeral oration. It’s a given, prima facie, that the intended audience is the living. It’s a rhetorical exercise, of sorts, riffing on a funeral oration attributed to Pericles (ghost authored by Aspasia). That threw me for a bit, as it’s been over 50 years since I read the original oration and was unaware of Socrates’ modifications until rereading it the other day.

In brief, Socrates begins by praising the dead based on their nature, nurture, education, and deeds. The war dead serve as role models for their sons. They are paragons of virtue in upholding Athenian freedom and ideals. Finally, there is consolation for the parents of the dead, who are assured that the City-State will take care of them.

In The Death of Ivan Ilyich, we have the quintessential organization man who puts his career aspirations ahead of his family and friends. Callously, on learning of Ivan’s death, his colleagues see one less competitor on the corporate ladder. Even his wife seeks to free hidden assets from his estate. (This is a negative commentary on the societal status quo.)

It is in the flashbacks to Ivan’s life that we witness a revelation. Though he has achieved material success, it has been at the cost of relationships with his family and friends. The inflection point is an accident in which Ivan is gravely injured, feels great pain and spirals to his death. In the decent into decrepitude, he finds opportunities for self-reflection.

He achieves an epiphany—in part as a consequence of a revelatory dream—that material pursuits and pleasures left him empty. The artificiality of his life imprisoned him. He comes to accept death, loses his anxiety, and achieves senses of peace and redemption.

There are lessons for the dying and their survivors in both readings. In keeping with Socratic/Platonic ideals, it is important to leave a legacy that ensures the sustainability of civilization—and aspirationally—improves upon it. From Tolstoy we are reminded that in life one should deprioritize material acquisition and status-seeking. One should also reflect upon one’s life and consider the effects of life choices on those nearest and dearest. To paraphrase a cliché, the examined life is more fulfilling.

In so doing, one can achieve a sense of peace while dying, or at least some solace to the moment of drawing one’s last breath.

In conclusion, I don’t think there is an algorithm to weigh the “impact” of death in quantitative or qualitative terms on the living or the dead. There’s the quandary of a double effect in play, and no Summa Theologica towards its resolution.


Affirmative Action and The Black Panther

The policy I’m going to explore is affirmative action in the context of The Black Panther franchise. I haven’t tracked the through-line of this theme in the comic book series as I am not an avid reader, but I have done a little bit of research.

Ironically, the emergence of the character coincided with the Black Power Movement in the 1960s, originating in the guise of The Black Leopard. Some say this was to avoid negative associations with the Black Panthers—an (at the time) seemingly radicalized civil rights organization. They were demonized in the media as subversive and associated with acts of violence.

The Black Panther, reemerging in Hollywood with the 2018 release of the movie by the same name, was intended to flip the cart at all levels—story line, casting, production crew (including a black director) and intended audience.

To quote Jamil Smith in his Time Magazine cover story, “Black Panther isn’t just a movie. It’s an event, a milestone, a movement about what it means to be black in both America and Africa—and, more broadly, in the world.”

A reactionary quote from Rotten Tomatoes is telling, “Affirmative Action: The Movie,” said one. “No thanks. I have no interest in PC Politics,” according to another.

I think it is positive to be inclusive and perhaps have the storyline written larger, if only to promote acceptance. Depictions of blacks as heroic figures—operating at the very least on the same plane in majority (white) American society is transformative. It is, at some level, the comic book/movie equivalent of Obama’s “audacity of hope” narrative.

There is some irony in the final scene of the movie where T’Challa (The Black Panther’s Clark Kent persona) is met with skepticism when he offers to help leaders of the American military hierarchy from his base of operations in Sub-Saharan Africa. He and his emissaries maintain their guard, short of winking at each other—for the Wakandans are actually a technologically superior civilization that has preserved the peace by maintaining a cloaking field over their city-state. It’s a nod to racial bias.
There is a place for heroic archetypes representing minority populations. Geoffrey Canada might have been for “Waiting for Superman” in his generation. Now he has The Black Panther. I think there is a pattern where a lone superhero representing an oppressed group is introduced, demonstrates his or her chops, and thereby gains an invite to join the Avengers or Justice League.
There was fear that the movie would appeal only to black audiences, like the Madea movies. Instead, it resonated with the mainstream mass market, was a commercial and artistic success and won three Oscars.

Affirmative action is a major step on the road to acceptance. The only veil of ignorance that applies here is colorblindness.


If Determinism Were True…

If determinism were true, in the radical sense that all moral choices are predetermined by hard and fast rules—on the order of the laws of physics—then free will would not exist.

This is assuming the strong implication that the states of mind governing choices were forged in the Big Bang and that we are locked into a Grand closed scheme. Successive states of that system are purported by strict determinists to be iterations on an initial state and immutable.

In that case, Nagel’s “moral circumstance and luck,” though seemingly capricious, would also be determined by “The Grand Equations.”

It could also be argued that Frankfurt’s First and Second Order Desires were completely predetermined—eliminating the wiggle room given for free will afforded by his mechanic of Second Order Desires. As a consequence, choice is but an illusion.

I do not subscribe to the notions or mechanics of moral determinism, after Dennett and Monad, in the sense that evolution has given conscious entities (humans and dolphins among them) a capacity for novel responses to system dynamics.

In effect, any closed system can be changed via interjections of acts by conscious entities—even to the extent that they are non-responsive, capricious, contradictory, or redefining. In that sense, the notion of moral predetermination is untenable. Moreover, Heisenberg taught us that to observe a system is to change it, and Godel taught us that despite the axioms that define a closed system, there exist true statements about the system that are not derivable from those axioms.

Therefore, Uncertainty and Incompleteness prevail through a form of Kobayashi Maru maneuvering. While physical laws are determined, consciousness is unrestrained and—QED—free will reigns.


Moral Circumstance or Luck as Determinants of Blameworthiness in Sentencing

I’ll weigh-in on whether praise or blameworthiness can be affected by moral luck based on my 43 years of experience as director of a not-for-profit serving people who are either reentrants (from prison) or in recovery (from addiction).

See https://ctoxfordhouse.org (Links to an external site.) if curious.

In advocating for these people (be they plaintiffs, defendants or disenfranchised) through (a) social services, (b) civil courts or (c) criminal courts, there seems to be a spectral shift from left to right (a)–>(b)–>(c) in the weight given to the client’s circumstances or luck in life.

This effects the number of entitlements and/or monetary amounts they might receive in the case of (a) social services, to monetary awards they might win in (b) civil cases (most remunerations are denominated in dollar amounts, except for property reassignments, visitations, and/or restraining orders), to the degree of sentencing in the case of (c) criminal cases (denominated in time served).

The shift is not linear in the weighing of moral circumstances or luck. It’s nearly binary. Sentencing guidebooks (referenced this past week by Judge Ketanji Brown in her confirmation hearings) are measured in time.

Only relatively recently has consideration been given to monetary restitution. To wit, a client stole and fenced a Rolex watch. Restitution was the $20,000 assessed value of the watch with no consideration for it being an irretrievable, priceless memento of the victim’s great grandfather. Insurance covered $15,000 of that amount and the client had to pony up the remaining $5,000.

Progress in the allowance of time to be “paid” in community service also offers some hope.

Also indicted in Brown’s testimony are the equivocations of “desert” (the weighing of the penalty to the crime), notions of whether said penalties are effectual as “deterrents,” or whether weighing in favor of the victim over the perpetrator (who might have been the greater victim of circumstance) is the “best bet.” Gauging from the tenor of the questioning, these remain the prime movers in sentencing.

As a consequence of the George Floyd, Breonna Taylor and succession of related incidents, there has been a seismic “leftward” shift in consideration of moral luck in adjudicating awards, be they entitlements or sentences. This is indicated in the greater emphasis on community policing and social services over indictments and convictions.

Judges and juries are considering moral luck to a greater degree in sentencing. I report this on the basis of incidental anecdotal evidence—having served or sat-in as an observer, witness, affiant, etc., for two score and three years.

Despite the tempering of sentences in light or moral circumstances and luck, there is overwhelming evidence in support of critical race theory—contending that racial bias is systemic and baked-in to regulations, laws or jurisprudence. It’s palpable to anyone like me who sits in the courts and testifies on a regular basis.

These are among the barriers to overcome in fair determination of crime and punishment.


Arguments Against Moral Determinism

The premise of determinism is that, just as the physical laws of the universe prescribe all matters of cause and effect (past, present and future), by extension, morality is predetermined. We do not exercise free will, rather, we act according to baked-in moral principles (known or unknown), that mechanistically trigger consequents based on given antecedents.

Robichaud captures this with his observation that ‘I’m not free if I can’t act but a certain way.’

I agree with the tenet of determinism that many of the choices we are presented with are the outcomes of mechanistic principles. Some, however, are the outcomes of cognitive processes. On the table, then, are two sets of choices. I would argue that it’s that later set that is not deterministic and that we cannot—nor need we—assert categorically that all decision making is devoid of free will.

The philosopher Harry Frankfurt complements the above objection…

His opening gambit is that we perceive or surmise a set of choices that are the antecedents to our moral responses.

To paraphrase his language, we have “wants” to act upon these choices. These present what he calls “First Order Desires.” ‘I want to go to the movies’ or ‘I want to eat’ are examples. The human mind has evolved to act upon First Order Desires in the making of “Second Order Desires.” The latter are choices, rankings and/or prioritizations—cognitive acts of will—that constitute our capacity for agency in making decisions.

In separating the set of choices (and for the sake of argument lets contend naively in accordance with the determinist’s camp that the choices were mechanistically determined) from the process of decision making and choosing, we have in effect identified a complementary mechanic that is commensurate with “free will.” Note that the mechanic might entail a coin-toss, adding a random element that is certainly not deterministic and in fact, decidedly capricious.

We have, then, added to the initial set of choices—whose origins might have been mechanistically determined—a set of choices that were intentionally determined. The outcome is a mix of naturally determined and intentionally determined antecedents to further acts of decision making. The mechanics of their origins are, in fact, not necessary attributes to consider in moral decision making. This characteristic vacates the need to naively ascribe determinacy to the antecedent set. The consequents—outcomes of our Second Order decision making—by nature of their being intentional (or even capricious)—further detaches determinacy from the process (other than basal cases, such as instincts to withdraw from immanent threats such as burning or other bodily harms).

To strengthen the argument, I would add that the origins of the choice set may not be given or substantiable a priori. If they are known, and known to have been objectionable, those facts are then a part of the choice set. They are, prima facia, the facts at hand in a naive, bare-bones, declarative sense.

I add to the above argument that many natural processes are exceedingly complex. Though behaving according to “natural laws” they are not characterizable by analytic expressions. They are identifiable by norms. For example, spectral analyses of the light emanating from distant stars allow us to identify the fingerprints of their constituent elements. They are matched in computer analyses in the manner that criminals are pulled out of a line-up. There is no analytic decision function—just matching sets of archetypes and a process of pattern matching.

Moreover, there is a whole science of stochastic analysis used to characterize processes that, even if naturally determined, are too complex to characterize canonically. Even when an analytic function can be described, there are cases where they are non-computable, thus computationally undecidable. The Halting and Tiling problems are the classics among these.

We should also mention the Sartrean catechism, ‘Not to act is to act. Not to make a decision is to make a decision.’ Thus, consequents arise out of inaction—passive aggression—if you will, as if aggression was at the heart of non-deliberative acts. Non-deliberative acts are to determinism as the null set is to all sets. It would, in the very least, be hard to ascribe them to either the determinist or free will camps.

Circumstance and luck also play a part in our praiseworthiness or blameworthiness for our moral responses. This puts pressure on moral determinism, because we might have no control over situational dynamics that cause us to act.

Also in the marketplace of ideas is the Bayesian notion that probabilistic reasoning is not strictly random. In fact, predictive models are refined on the basis of subsequent observations, such as refining one’s aim to hit a bullseye—a little higher or a little lower, accordingly. Implicit in that is an indication of intent.

The notion of Stare Decisis is another manifestation of a sort of Bayesian process at work in litigation and the evolution of law.

The final nail in the coffin is Godel’s Theorem, which proved that there are true statements about sets that are not derivable from the axioms of the set. These are branded “undecidable.” In the moral realm, this implies that there may be praiseworthy responses that are not derivable from moral cannons, in that they too are subject to incompleteness.

There might be some salvation in the argument that there exists some enormously complex mechanic, unbeknown to us, that determines all behaviors, but the Occam’s Razor argument as a last resort renders that highly unlikely.

Thus, arguments for determinism fail broadly on multiple fronts.


Are Possible Worlds Concrete or Abstract?

Concretism, ala David Lewis (et al), is the view that all objects in the physical universe stand in relationship to one another in space-time, from beginning to end. The “actual world” we experience is an “indexical” of all other possible worlds. While other (concrete) worlds are possible, the “me” in this world is different from a counterpart in another world. If two worlds were to “collide”—a plotline in some writings—they would constitute one and the same world. In the spirit of Occam’s Razor, this view does not require some other invention to explain the state of affairs in one world versus another.

Abstractionism, ala Christopher Menzel (et al), is the view that possible worlds are not concretely separate and distinct. For example, there is no counterpart to me wearing one outfit in this world and another me in a different world. There is the one me in this world wearing one outfit xor (exclusive or) the one me in this world choosing a different outfit. There are “states of affairs”—my walking across the street versus staying in place or my choosing one outfit over another. Possible worlds are then “maximal alternative states of affairs.”

In this view—all possible worlds are abstract, and the differentiator in this world—the world we experience—is that it “obtains.” Linguistically, abstract worlds describe sets of relationships among objects of experience.

It is posited by Robichaud that concretism does not require the introduction of abstraction to explain the world of experience or worlds of supposition. Conversely, abstractionism does not require the existence of concrete realities we don’t or can’t experience.

I’m inclined to identify as an abstractionist. While skirting ontological questions about the world we experience, abstraction allows us to describe and examine properties and relations among the “objects” of that experience. Moreover, in a Popperean sense, abstractionism is testable whereas concretism is not. Isn’t that the way modern science works? I can falsify a statement about an abstract property or relation. Objects beyond empirical investigation can only be posited. 

In other words, there may be concrete multiverses, but they have yet to be identified at a macro (non-quantum) level. Abstraction at least allows us to communicate in the world of our experience without probing the metaphysical substrate.


Legal Opining: Why Transparency and Oversight are Important Democratic Norms–for Superheroes and the Rest of Us

Though transparency and oversight are important democratic norms, and a tripartite system of checks and balances was put in place to foster them, there are cases where they have failed. The Edward Snowden and Daniel Ellsberg affairs serve as exemplars.

The arc of the majoritarian approach to regulation and emergency responses also usually works. It can be argued that a 51% majority will err on the side of correctness and that a 79% majority is probably even more correct. A 99% majority would lead us to be circumspect, as it would be indicative of an authoritarian mandate.

There are cases where leaders are given emergency powers—in the case of state disasters and wartime powers in the event of national emergencies. These arise in cases where the process of deliberation would likely lead to untimely, non-optimal consequences.

It is for this reason that roundtables or justice leagues are better for deliberations among superheroes, and perhaps this is their moral equivalent of an emergency response mechanic.

Just as elected officials are representative agents for change, subject to oversight and answering to the public, superheroes should be subject to the same constraints. 

Without revealing their identities, the equivalent of a referendum—that could be called in short order—and the introduction of mechanics for direct democracy—such as electronic voting on mobile devices, would enable rapid and rational responses.