political realism in LD

A Twitter follower has asked me to elaborate on one of the V/C pairs I listed for the humanitarian aid resolution. Over at that post, I wrote:

V: Prudence (defined as carefully weighing political options; see Morgenthau)
C: Political realism
The idea here is that nations act in their best interests, independent of overarching moral considerations, charting a careful course in a chaotic, Hobbesian world. Justice isn't a proper description of international relations, so the resolution is a category error, analogous to claiming that numbers are too heavy, or colors are too fearful. (Be aware that some judges hate political realism. I mean really, really hate it.) Realism can also be turned, potentially, in the way the Social Contract argument can be turned, if realism is discussed in terms of its consequentialist impacts, rather than in its inherent approach.

I'll start by explaining what realism isn't, and what it is, and then how to use it in an LD round, not just for this particular topic.

Political Moralism
If you believe that states are inherently moral agents--or that the people who make decisions for states are moral agents, regardless of whether states themselves are moral--you are not a realist. Instead, you're a political moralist. There are several ways states might have moral obligations: there might be some objective moral law that all states ought to follow, or there might be contractual obligations (treaties, alliances, international law, etc.) that have actual normative force.

Regardless of the efficacy or enforceability of these norms, a political moralist believes they are real, and ought to guide and constrain state actions.

Whether these obligations are positive (i.e., states should act in certain ways to achieve specific ends), or negative (i.e., states should refrain from acting in certain ways), is another question.

Political Realism
In contrast, if you believe that states are not inherently moral agents--and that the people who make decisions for states do not need to concern themselves with traditional morality when making political decisions--you are a political realist. States are only interested in preserving their own power in an anarchic system, and must often make difficult decisions that would not survive scrutiny in a traditional system of ethics. As Hans Morgenthau writes,

Realism maintains that universal moral principles cannot be applied to the actions of states in their abstract universal formulation, but that they must be filtered through the concrete circumstances of time and place. The individual may say for himself: "Fiat justitia, pereat mundus (Let justice be done, even if the world perish)," but the state has no right to say so in the name of those who are in its care. Both individual and state must judge political action by universal moral principles, such as that of liberty. Yet while the individual has a moral right to sacrifice himself in defense of such a moral principle, the state has no right to let its moral disapprobation of the infringement of liberty get in the way of successful political action, itself inspired by the moral principle of national survival. There can be no political morality without prudence; that is, without consideration of the political consequences of seemingly moral action. Realism, then, considers prudence--the weighing of the consequences of alternative political actions--to be the supreme virtue in politics. Ethics in the abstract judges action by its conformity with the moral law; political ethics judges action by its political consequences.

Note that Morgenthau doesn't deny the existence of morality overall; rather, he claims that the good--defined as rational aims successfully carried out--is the aim of statecraft, not the right. Prudence, not justice, is the goal; success, not virtue, is the measure of action.

This view traces back to Thucydides, who Morgenthau name drops; Machiavelli, who applied it in his classic text The Prince; and Thomas Hobbes, who developed the idea of a "warre of all against all" in the state of nature. Contrasted with these three, Morgenthau is actually the least controversial and least cynical in its view of human nature.

As I described above, judging state actions in moral terms, in the realist view, is a "category error." Morgenthau again:

This realist defense of the autonomy of the political sphere against its subversion by other modes of thought does not imply disregard for the existence and importance of these other modes of thought. It rather implies that each should be assigned its proper sphere and function. Political realism is based upon a pluralistic conception of human nature. Real man is a composite of "economic man," "political man," "moral man," "religious man," etc... Recognizing that these different facets of human nature exist, political realism also recognizes that in order to understand one of them one has to deal with it on its own terms.

In other words, our decisions in different contexts are made with different considerations--and, in Morgenthau's (controversial) rendition, no single role trumps all others. The political is the political, and nothing more.

Using Political Realism in a Debate Round
As Morgenthau argues, the supreme virtue of political realism is prudence: treading cautiously in a dangerous world. You may set that up as your value, and political realism as your criterion, if you're using this line of argument. However, you might also value truth or reality, and have a criterion of "properly assigning responsibility," if you view the resolution through a truth-testing lens.

For the humanitarian aid resolution, either will work; the point is that states are held to a different standard than individuals.

Even if they aren't, state actions are contextual and situated, which means that realism is a perfect counter to Kantian (or any other) absolutism.


Defeating Political Realism
Realism doesn't necessarily have a good answer for the inherent worth of actions bad states might take. If states should act pragmatically in their own interests, what if such actions are, from a moral standpoint, evil? This question may have a good answer within the realist framework, but it's difficult, and the strong biases of some judges against realism may make it a losing issue. One of my debaters had a judge who described his sentiments thusly: "I'll go barf in a bucket, then vote Neg."

Realism might also be wrong, for several reasons. First, if Morgenthau is wrong about human nature, then the whole philosophy collapses. In other words, it might be that "political man" is no different from "economic man" and "moral man." There's only humanity, which can't be contextualized or situated away.

Second, if the global political system truly isn't anarchic--witness the rise of international law and human rights norms--then there is a global contract that supersedes (or at least equates with) individual contracts between states and their citizens. In Morgenthau's time, such norms and contracts may have seemed as thin as tissue, but in the 21st century, they seem to have strengthened. (If Russia ends up successfully occupying Crimea and destabilizing Ukraine, I take it all back.)


For Further Reading
"Political Realism in International Relations"
"The New New World Order"

Emmanuel Levinas, ethics, and LD

This post is inspired by Max, who wrote an LD case for the March/April humanitarian aid resolution based on the work of Emmanuel Levinas. Thanks for the idea, Max.

I'll quote from two useful sources in my discussion: Adriaan Peperzak's To the Other: An Introduction to the Philosophy of Emmanuel Levinas, which is available in its entirety online, and Benjamin Yost's "Responsibility and Revision: A Levinasian Argument for the Abolition of Capital Punishment." Any misrepresentation of their work--or of Levinas--is entirely my own. (Debaters who lack the hours to peruse Peperzak's exegesis will find use in Bettina Bergo's capably brief summary of Levinas's life and work.)



Why Levinas?
For debaters who are tired of the same old Utilitarianism vs. Deontology arguments, Levinas' approach offers a way out. It is profoundly humanistic, and critical of all-encompassing formulas or categorical imperatives. Although Levinas' prose (translated from French) can be intimidating, his core idea is understandable with a little effort.

The Core Idea: Responsibility
A human's first encounter with another human--the Other--shocks us out of our unreflective egoism, an egoism that other ethicists confuse with selfhood. According to Levinas, it is not until we recognize the existence of the Other--and their infinite claims to our attention, resources, and time--that we develop a sense of responsibility to them, and understand our own nature. As their needs are infinite, our responsibility to them must be infinite; and, as Yost explains,

...responsibility is asymmetric--meaning that the other has no responsibility to me--and radically singular--my responsibilities are mine and cannot be passed of to, or shared by, anyone else.

Or, as Peperzak puts it,

[a just] being does not concentrate on its own happiness or even on the sublime form in which this happiness can present itself within the framework of a belief in human immortality or soul... [since] it has turned from egoistical injustice in order to dedicate itself to the service of the Other.

Levinas' critical project is aimed straight at Kantian and contractualist defininitions of justice as reciprocity between free agents. Yost again:

This is because Levinas puts responsibility where Kant, and the liberal tradition more generally, would put freedom--to be human is to be responsible, and the other’s needs constitute the fundamental value. Being responsible for others is about transcending the drive toward self-preservation and self-enhancement.... As a result, our responsibilities for others cannot be determined by, nor limited by, the responsibilities others bear for us. Duties are not cut from the cloth of reciprocity. This view is in sharp distinction to liberal justice.

Limitations...
Levinas' position, square in the critical camp, makes using his ideas a challenge for LDers, as on the one hand, it places justice and ethics at the first priority, but on the other hand, makes no specific normative claims. As Peperzak explains,

[Levinas'] ethical terminology... does not point the way to a system of commands and prohibitions. It describes the situation of responsibility that precedes every ethics--a relation that "constitutes" me even before I can ask: "How should I conduct myself?" or "What should I do?" As an adequate description of the subject, insofar as it escapes the order of Being, ethical language is pre- or meta-ontological. As characteristic of a situation that precedes freedom, it is also pre- or meta-ethical.

Levinas rankles against the systematizing impulse of most ethical theorizers, framing such an impulse as a sort of abdication of moral responsibility. Back to Yost:

Now, if responsibility is singular and asymmetric, it is non-generalizable, and cannot be used to deduce moral norms that bind anyone other than oneself. Indeed, to convert singular demands into generalized norms will turn out to be, in some sense, a betrayal of responsibility. In doing so, one shirks one’s responsibilities by passing them off to others.... Levinas cannot, therefore,address the basic concern of mainstream normative ethics, which is to establish a catalogue of moral duties. Instead, Levinas encourages vigorous criticism of these catalogues, on the grounds that they justify limits on our responsibilities.

... And How to Overcome Them
That doesn't preclude what Yost calls "Levinasian" arguments in favor of universal human rights (or, in Yost's own view, against specific policies such as the death penalty). Justice itself is a universal principle, as Peperzak explains:

The simultaneity of many others distances me from the infinity of my responsibility. The contradiction caused by an infinite claim that is multiplied can only be overcome by the opening up of a dimension in which all others are served, respected, and treated justly: the dimension of universal justice. The infinite "principle" of transcendence... necessitates its own universalization and therewith a certain limitation. This is the "origin" of justice as the concern for a universally just order. This justice demands comparison (of unique and incomparable others), coexistence (of those whose "truth" can only "appear" in a face-to-face), gathering, equality (of the differents), administration, politics (which necessarily includes totalization), and so on.

Or, as our house's resident ten-year-old Keira summarizes, "There was a dimension where he went into a dimension, and then found the face-to-face of justiceness."

Can we go farther, and link this "justiceness" to the lived reality of political justice? Peperzak says that Levinas says yes.

The infinite obligation now becomes the duty of justice. I must be just in the distribution of my attention and devotion. I must compare and calculate, correct and order, treat others as equals and conduct myself as a judge.... The ethical relation of the One-for-the-Other obligates us to the rational organization of society, in which justice is exercised and violence is suppressed.

Yost adds,

Those who argue that Levinas’ philosophy has political implications include (Burggraeve 2002), (Caygill 2002), (Critchley 1992), (Critchley 2007), (Perpich 2008). Critchley and Perpich defend very general implications. Caygill and Burggraeve derive more concrete ones, especially with respect to the extension and protection of human rights.

The full cites:

Burggraeve 2002. "The Wisdom of Love in the Service of Love : Emmanuel Levinas on Justice, Peace, and Human Rights. "
Caygill 2002. Levinas and the Political.
Critchley 1992. The Ethics of Deconstruction : Derrida and Levinas.
Critchley 2007. Infinitely Demanding: Ethics of Commitment, Politics of Resistance.
Perpich 2008. The Ethics of Emmanuel Levinas.

I haven't read them, but you're welcome and encouraged to.

And, for extra credit, compare and contrast Levinas' idea of responsibility with Sarte's "anguish."

value / criterion pairs for the humanitarian aid resolution

This post consists of value and criterion pairs for the March-April 2014 LD humanitarian aid resolution, which states:

Placing political conditions on humanitarian aid to foreign countries is unjust.

These ideas are intended to kickstart your own thinking. Feel free to adapt them for your own purposes. I can't claim they'll win you any rounds, but if they do, be sure to give me 80% of the credit, more or less.

Also, this is a work in progress, so feel free to suggest additions in the comments.


Trending Affirmative

Value: Justice (defined morally)
Criterion: Preserving human dignity.
Humans are worthy of fundamental respect and have inherent worth. Regardless of role or station, we have a moral obligation to preserve human dignity. Political conditions have the potential to deny aid to those who need it most, use humans as bargaining chips and human suffering as leverage, and, if based on partisan bickering, are a moral obscenity and an affront to human dignity.


V: Justice
C: Protecting Human Rights
If protecting human rights is essential to justice (or morality), and if PPCoHA leads to the loss of human rights (as thousands or even millions suffer and die when aid is denied), then PPCoHA is unjust.


V: Justice
C: International Law / International Human Rights Norms
Since the resolution does not specify a particular society, we can't be 100% certain which rights must be protected. Best, then, to look to the prevailing standards of international law--the rights that people across societies, cultures, and even times have agreed are essential. Is this criterion open to attack? Certainly. But it also presents a clear, highly defensible set of rights.


V: Justice
C: Deontology, especially the 2nd Formulation of Kant's Categorical Imperative
Kant argues that as humans are autonomous moral agents, it is wrong to use them as mere means to an end. Political conditions do this by treating suffering and dying humans as bargaining chips for a nation's purposes.


V: Justice
C: Retribution
In this view, withholding aid for political reasons is a punishment. If this is a correct reading of the situation, it violates a fundamental principle of retributive justice. Innocents should not suffer for the sake of their country's leaders, since they are not due punishment.


V: Justice
C: Rawls's "Law of Peoples"
Rawls's "Law of Peoples" is an attempt to apply his contractual reasoning to international relations. The seventh and eighth rules are most salient: "Peoples are to honor human rights," and "Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime."




Trending Negative

V: Justice
C: Social Contract
The resolution uses the phrase "is unjust," which can (should?) be defined in moral terms. The moral obligations of the State are based on its contractual duties and limits. The contract (in most classic formulations) requires no positive obligations toward the citizens of other countries. (There may be negative duties--to not violate the human rights of foreigners--but humanitarian aid is not a moral obligation for states.

A potential "turn" exists if the social contract is linked to consequentialist reasoning (i.e., the State has to act in a way that benefits its citizens or keeps them secure). If unfettered humanitarian aid improves the donor nation's security, it might have a moral obligation to avoid political conditions.


V: Prudence (defined as carefully weighing political options; see Morgenthau)
C: Political realism
The idea here is that nations act in their best interests, independent of overarching moral considerations, charting a careful course in a chaotic, Hobbesian world. Justice isn't a proper description of international relations, so the resolution is a category error, analogous to claiming that numbers are too heavy, or colors are too fearful. (Be aware that some judges hate political realism. I mean really, really hate it.) Realism can also be turned, potentially, in the way the Social Contract argument can be turned, if realism is discussed in terms of its consequentialist impacts, rather than in its inherent approach.



Could Go Either Way

V: Justice
C: Consequentialism (or Utilitarianism, Act or Rule)
Any case predicated on a body count, a dollar figure, or any other quantifiable metric of success is essentially consequentialist. If justice is defined morally, and the State looks to consequentialism as a way to decide whether its actions are moral, then consequentialism can work as a criterion for justice. However, this seems like a weaker link (as it makes justice into a matter of majority rules). Also, any affirmative would have to beware of potential turns.

the agent of action in the humanitarian aid resolution

The March/April LD humanitarian aid resolution invites a careful parsing.

Resolved: Placing political conditions on humanitarian aid to foreign countries is unjust.

One of the primary questions: who or what is the agent of action in the resolution? In other words, who or what would be described as "unjust" when placing political conditions on humanitarian aid?

The question matters for several reasons, which will be outlined below amid various agent options.

The agent is an indeterminate government or nation-state.
I place this reading first, as I think it's the preferred interpretation, given the general-principle nature of LD, and the fact that states are the entities most likely to impose political conditions on humanitarian aid, whether mediated via sanctions regimes, or through direct aid dispersal. Furthermore, the aid is directed "to foreign countries," which is a clean semantic fit with the idea of state-to-state bargaining.

What defines justice vis a vis the State? For the Affirmative, the answer may lie in Kantian respect for persons, Rawlsian calculations of fairness, consequentialist cost-benefit analyses, or, if the resolution is situated more in the "real world," norms such as the Universal Declaration of Human Rights, or international legal frameworks such as the Geneva Conventions.

The Negative has Rawlsian and consequentialist options as well, but I'd go for a contractual argument, based on the word "foreign." Nations have no obligations to give aid to foreign citizens, in the classic social contract stance. Thus, it may be sad or heartless or mean, but it's not unjust to set political conditions. In fact, given the state's obligation to the welfare of its own citizens, such conditions might be preferable or even required.

Another Negative strategy is to blow up the notion of State obligations, taking a Morgenthau-esque "realist" position. In the anarchic international system, the State has to act to safeguard its own interests. Political conditions aren't "unjust" because justice isn't applicable to the State. Prudence is the only path. (This is a similar "category error" approach taken in Randian kritik-esque arguments about the fallacy of "collective nouns.")


The agent is the government of the United States.
This is a common way LDers attempt to parametricize the resolution: by arguing that since we live in America and take part in the American educational system and can easily place ourselves in an American-oriented policymaking stance. I wouldn't go this route, but your mileage may vary.


The agent is an indeterminate nonprofit / nongovernmental organization (NGO).
NGOs certainly have the ability to impose political conditions on their aid, but in my initial survey of the literature, it seems that they are the least likely to. For good reason: due to their principled neutrality, groups such as Doctors Without Borders oppose any and all political conditions. This reading of the resolution is likely to trend Affirmative.


The agent is an individual actor within a government agency or NGO.
Do obligations to corporate aims trump individual morality, or must individuals act justly regardless of their office, status, or context?


The agent is an individual actor without any particular corporate obligations--a philanthropist.
I see this as the least likely reading of the resolution, as it's the least likely aid scenario.


In sum, I see state-based analysis as the most fruitful for both sides, although I'm willing to be persuaded otherwise if you have better ideas. At any rate, the definition of justice--and the proper application of the term to various agents--seems to be the matter of most concern in this debate. Is justice essentially moral, political, or legal? (Or some combination of the above?) Good luck finding the answer, and good luck in your rounds.

Resolved: Placing political conditions on humanitarian aid to foreign countries is unjust.

The National Speech and Debate Association (formerly the National Forensic League) has released the March-April 2014 Lincoln-Douglas debate topic.

Resolved: Placing political conditions on humanitarian aid to foreign countries is unjust.

There's a lot to consider, from the meaning of "political conditions" (are we talking about free elections, regime change, partisan bickering, or all of the above?) to the standard for justice. The word "foreign" invites analysis of international and domestic legal frameworks for aid, but without a specified agent of action, should we focus on US aid efforts, throw the EU in the mix, consider the UN the focus, or debate abstract principles? Is there a difference in the interests of state actors and private agencies?

Of course, you can expect much of the debate to boil down to frameworks. For instance, my immediate inclination is to take a Kantian stance, arguing that using humanitarian aid as political leverage treats suffering citizens of other countries as mere means to an end. Consequentialism may point us in entirely different directions, though, especially since humanitarian aid has been diverted by bad actors, fueled corruption and state capture, and isn't necessarily effective in the long run.

A few countries and regions that spring to mind include North Korea, the Sahel, the Central African Republic, Syria, Afghanistan, Palestine, Haiti, and Myanmar. Agencies include USAid, ECHO (the world's largest donor, according to their website), UNICEF, Doctors Without Borders, and more. Many more.

These are just a few thoughts at the onset. Watch this space in the coming weeks for links, analysis, and value and criterion pairs, and, as always, feel free to pose ideas and questions in the comments.

Updates
1. I take a closer look at potential agents of action in the resolution, and their strategic implications.

2. How should "political conditions" be defined in the resolution?

3. Does humanitarian aid forestall political solutions?

4. A list of value / criterion pairs to get you started, if that's your thing.

5. Two external links you might find useful: Stanford's article on International Distributive Justice, and IEP's on Global Ethics and on Moral Egalitarianism (potentially useful for the Aff).

6. Levinas seems useful for this resolution. Who is Levinas, you ask?

7. I go into a little more depth about political realism.

thoughts about animal rights

The first post about the animal rights resolution has sparked a lot of great questions. Rather than try to answer them in the comments, I'll tackle them here, all at once, and see what other thoughts I can add.

First, a reader writes,

[If] we were to affirm, would major corporations such as McDonalds and Burger King be in violation of these rights, and if they were, would they be shut down by the government, costing thousands of people their jobs and adding to the country's unemployment rate?

This is one of the most critical points in this resolution: it doesn't define the nature or scope of animal rights. For all we know, animals could only have negative rights of a fairly limited extent, such as the right not to suffer cruel and unusual treatment. (It may seem morally strange to allow a person to kill and eat something, provided it doesn't suffer while alive, but that's just one of the morally strange things about trying to blend carnivorous and animal rights.)

So, unless animal rights include a "right not to be killed," we simply can't answer the question.

Next, reader nesh asks, "Didn't we as humans create this system of justice that the resolution speaks of?"

That's a great question that won't find an easy answer. In this view, rights are socially constructed. They're invented by humans, for humans--but this also makes rights a matter of human whim, changing with times and cultures. This gets tricky quickly, leading to cultural / moral relativism, and slippery grounds for disapproving of moral horrors like murder or rape.

Even if rights are human constructs, does it follow that animals are excluded from rights-talk? Not necessarily. There may be a good reason--a utilitarian or pragmatic reason--to extend rights to animals so that all humans benefit. More on this later.

A less constructivist approach is to argue that rights exist independent of human thought, but are discovered by rational actors, much as mathematical concepts exist on their own plane, waiting to be plucked out by mathematicians. Humans might disagree on the nature of rights, but they can't merely construct them. Animal rights could exist in a like manner, waiting for the first John Locke of the dolphins to squeak out a treatise. Even if such an event never occurs, however, a creature that can articulate animal rights--a human being--already exists, and can potentially assign those rights to animals.

An anonymous reader writes,

I do not like anything on the aff side... people will say that there are animals with "near human intelligence" and like arguments. This is not a good argument on several levels... First, that only occurs in certain cases. Not a true reason to affirm, and secondly if they were so smart they would protect their own rights

Giving animals rights for inherent reasons--they're intelligent, they can suffer, they're cute and fuzzy--is only one approach. Another is utilitarian, as I mentioned above: when we assign rights to animals, we protect their welfare, which not only improves their lives (and the environment), but may make us more moral as human beings. To wit, a person who treats animals with respect is more likely to treat humans with respect. (The opposite may be true as well; stereotypically, it's the psychopathic serial killer who's cruel to animals at a young age.)

Furthermore, an ethicist like Peter Singer will argue that the same reasons we defend the rights of defenseless, pre-rational human babies can be extended to the defense of non-rational animals.

As a different anonymous reader writes later on,

As for the justice approach, you're gonna have to be specific about the definition of justice, or what justice really is and what it applies to. Is justice a human-only concept? If we talk about justice and its benefits, is it utility for humans only? and if it is or isn't, why?

Amen and amen.

I'm running out of time at the moment, so I'll stop there for now. More questions, and concomitant answers, coming soon.

Resolved: Justice requires the recognition of animal rights.

The September / October 2011 Lincoln-Douglas debate topic has been released:

Resolved: Justice requires the recognition of animal rights.

It's a fairly straightforward sentence with a lot of deep philosophical implications, and is a great way to start the season.

To get started, here's a thought-experiment.

An alien spaceship descends on your hometown, bug-eyed spindly-legged creatures emerging from its bowels. "Great," you think. "This is gonna be great." You've always wondered whether there was intelligent life elsewhere in the universe--and here it is, practically knocking down your door.

Actually, it is knocking down your door, and vaporizing your furniture, and corralling you and your family into cages, until you're whisked off to some distant galaxy, ostensibly to serve as entertainment for Emperor Garthron of Planet X.

You try to reason with your captors. Their eyes are blank with apathy, however; they cannot hear, nor can they understand your rudimentary bleating. They ignore your gestures and are unfazed by your scribblings. Your actions are meaningless to them, beyond the detached interest of idle alien curiosity.

How would you convince one of these aliens that their behavior is unjust, and that they've violated your rights?

Or would you even bother to try?

Clearly, your rights exist regardless of your ability to articulate them to an outsider. But what if the situation were reversed, a la District 9? Would intelligent aliens have rights?

Or, more to the point, what if animals find themselves in the same position regarding their human neighbors?

How wide is the circuit of our moral concern? Should it include organisms of different species?

Why do we care about animals?
Suppose you feel anger or sadness about recent reports about whales' susceptibility to industrial toxins. Your sentiments could arise from many sources: appreciation of the whales' beauty and power and intelligence; pity for their helplessness; respect for their unique place in nature, or for divine mandates for environmental stewardship. You could also take a different tack, highlighting their instrumental value--for instance, their essential role in the oceanic ecosystem, or their utility as a food source.

The last makes the problem particularly acute. It's tough to concede rights to something you might grill on the barbecue. Here the culturally arbitrary nature of our attachments becomes evident: some folks dress up their dogs in funny clothes, while other folks eat them. (And if dogs have a right not to suffer, why not whales?)

How do we define "animal?"
Dictionary.com (based on the Random House Unabridged Dictionary) gives us at least three workable definitions.

1.any member of the kingdom Animalia, comprising multicellular organisms that have a well-defined shape and usually limited growth, can move voluntarily, actively acquire food and digest it internally, and have sensory and nervous systems that allow them to respond rapidly to stimuli: some classification schemes also include protozoa and certain other single-celled eukaryotes that have motility and animallike nutritional modes.

This scientific definition would set up an interesting affirmative:

All humans have rights.
All humans are animals.
Therefore, some animals have rights.
Thus, we affirm the resolution.

The second and third definition are much narrower:

2. any such living thing other than a human being.
3. a mammal, as opposed to a fish, bird, etc.

The former sets up a distinction between human rights and animal rights, which is the traditional manner of thinking about such things. The latter is even more restrictive, making it so the affirmative would have to defend rights for whales and grizzlies and gibbons, but not for lobsters, snakes, or chickens. (Serious efforts to grant rights to apes and to cetaceans already exist.)

Which animals would have rights?
The definition chosen points to a potential answer; other arguments might revolve around distinctions based on sentience or intelligence.

Which rights would these animals have?
Hard to say. In Spain, for instance, non-human apes have rights of life and freedom from suffering.

Where do rights come from?
If they come from God, we may have to turn to some kind of scripture to answer the question.
If they're inherent, we have to figure out whether they're inherent in animals.
If they're social constructions, we have to decide whether our society admits nonhumans.
If they're contractual, we have to wonder whether non-signatories are covered by the contract.
If they're legal constructs, we have to determine whether the law assigning rights to animals is wise.
If they're a matter of utility, we need to know whether a life with animal rights increases utility.

Recommended Reading
The SEP's entry on the moral status of animals.
Lawrence Hinman's list of relevant links and resources.

As always, your ideas and questions are critical. Fire away in the comments.

Note: this is a slightly modified repost of the topic preview from last year, since, following custom, the Sept/Oct topic is the least popular top choice from the 2010-2011 list.

the fast and the furious

Johnette Howard of ESPN has written a fascinating summary of the triumph and travails of Oscar Pistorius, the path-blazing runner who might get a shot at the Olympics, as well as the controversy created by his technologically facilitated racing. Even the scientists disagree as to whether Pistorius' prosthetics give him an unfair advantage. Quite the paradox.

Resolved: The United States has a moral obligation to promote just governance in developing nations

With North Africa and the Middle East exploding in conflict, now's a perfect time for the NCFL's LD resolution for the May championship.

Resolved: The United States has a moral obligation to promote just governance in developing nations.

At a reader's prompting, here are some initial thoughts.

First, generally, why might just governance in developing nations be important? Lots of potential reasons, each of which would require some research for warranting:

* It's just / the right thing to do, which is reason enough
* Improves lives / protects rights of citizens of those developing nations
* Reduces conflict / promotes international stability
* Economic security for nations and their trading partners
* Just governance probably better protects the environment
* Reduces the growing pains of globalization

Still, we're not yet to the level of a moral obligation; not all good things are obligatory. We have some hurdles to clear:

1. The Affirmative has to warrant the notion that nations have moral obligations.
Such obligations could arise from several places: the social contract, universal moral schemes (utilitarianism, Kantianism), or legal frameworks (the Constitution, treaties, the Universal Declaration of Human Rights, international law). They may be corporate (the U.S. as a government has the obligation) or aggregate (the U.S.'s government agents as a collection of independent moral actors have the obligation).

The choice of moral framework will be critical to establishing the level of the obligation as well. Even from a purely pragmatic or instrumental perspective--that the U.S.'s only moral obligation is to its own needs--if, empirically, promoting just governance is critical to the U.S.'s own security, then we vote Aff.

2. "Just governance" has to be clearly, compellingly defined
Here's where a broader contractarian perspective offers a coherent framework without demanding particulars (What kind of governmental structures? What sort of democratic institutions, if any? What kinds of civil rights?). Delving into specifics potentially makes the Aff an uphill battle. However, it's not impossible to narrow the focus to something like international legal norms, which offer a widely agreed-upon set of "best practices" for just governance.

3. What does it mean to "promote" just governance? Does mere cheerleading suffice?
On the Neg, I'd use a "fork" strategy:
a. If the obligation is mere cheerleading, it's not morally significant, and therefore no obligation.
b. If the obligation requires economic or military action, it's too costly, and therefore no obligation.
c. If the obligation is something else--diplomatic efforts? winning a war of ideas?--it's ineffectual and pointless and wasteful, and therefore no obligation.

4. Is it ever to the U.S.'s advantage to allow--or even promote--unjust governance in developing nations?
It sounds like a question a terrible person would ask, but then, political philosophers are terrible people. We can't presume that just governance provides automatic benefits for surrounding or affiliated nations, never mind the citizens of the developing nation, unless we construe "just" so broadly as to include beneficial outcomes by definition.

In fact, for the U.S. to maintain economic and military hegemony, perhaps it's best to let developing nations remain mired in dictatorships or muddle their own way through. As the Egyptian non-intervention and the Libyan intervention shows, getting involved isn't automatically the best option. More cynically, if developing nations gain power through just governance, they may threaten the long-term interests of the United States.

At any rate, there are no easy, knock-down arguments for either side, although it seems that the Negative, by sheer number of hurdles, has the advantage in this debate.

If you have any questions or would like any further analysis, let me know in the comments. I don't usually cover the NCFL, so I won't blog extensively on this resolution without your prompting.

Resolved:The United States is justified in using private military firms abroad to pursue its military objectives.

The NFL LD topic for March / April 2011 has been released:

Resolved:The United States is justified in using private military firms abroad to pursue its military objectives.

The United States increasingly depends on private military firms to support its fighting forces around the world. However, that supporting role has become more of a solo act, as firms like Xe (formerly Blackwater) have moved beyond security details or logistics, into combat operations in everything but name--and with problematic results.

This raises several questions. Are private military firms effective, or even necessary? Are they legitimate--whether under U.S.law or under international law? Will their reach and influence continue to expand in a perpetual War on Terror, and, if so, what will be the costs? To whom are private military firms accountable? To whom are they loyal--especially when many of their employees or shareholders aren't U.S. citizens? Is this the "military industrial complex" Eisenhower warned about? Are we seeing the rise of shadowy corporate governance? Is "private security contractor" a mere euphemism for "mercenary?"

Expect security, justice, peace, international law, the social contract, Just War Theory, and corporatism to crop up in discussions. Also, expect huge criterial clash: the word "justified" isn't synonymous with "just."

Analysis and links, as always, are forthcoming--and, as always, your comments and questions are critical.

Added 2/2: A look at some definitions.

Added 2/3: Some initial Aff arguments mostly based on effectiveness considerations.

Added 2/13: More arguments and analysis for the Affirmative, based on military necessity.

Added 2/24: A formative list of value and criterion pairs.

Added 3/7: How postmodern developments change the nature of war.

Resolved: In the United States, juveniles charged with violent felonies ought to be treated as adults in the criminal justice system.

The NFL Lincoln Douglas debate resolution for January / February 2011 has been released:

Resolved: In the United States, juveniles charged with violent felonies ought to be treated as adults in the criminal justice system.

Definitions will be critical. In the United States, what currently defines juveniles and adults in the criminal justice system? How are they treated differently? (One massive point of controversy concerns the temporary nature of juvenile charges--they are essentially erased when the juvenile reaches the age of majority.) More important, why is the distinction drawn? What notions of proportionality and moral responsibility are involved? Furthermore, what constitutes a "violent felony?" What might make a violent crime a special case, worthy of adult-like treatment? And what does it mean to be "treated as an adult?" For instance, would that require juvenile violent felons to be housed in the same prison facilities as adults, or would it merely mean that the juveniles are charged and tried under the same criteria as adults, with a permanent criminal record (and public access to their criminal history; right now, juvenile criminals are not identified to the public).

Thinking about it further, there is a case to be made that the "treatment" does not extend past the arrest and trial phase--after all, they are juveniles that have been charged, not convicted. Hmm. Although the counterargument is probably that whatever distinguishes pre- and post-sentencing treatment for juveniles and adults is morally relevant to distinguish them in the first place.

This was my fourth-favorite resolution for this year, and although it tracks a little closely to the previous resolution, since it's focused on criminal justice, the topic is different enough to not feel stale. Plus, it'll be easy to research and fun to debate.

More links, analysis, and observations to come. As always, share your questions and ideas in the comments--they're what make this site so useful for so many!


P.S. Don't worry: the Nov./Dec. 2010 illegal drugs resolution post is still active, at least until January.


Added 12/2 / Clarified 12/31: The Federal Bureau of prisons defines "juvenile delinquent," which means a person who was charged as a juvenile (under 18); the upper age range for a juvenile delinquent is 21. Title 18 of US Code defines "juvenile." Could be a useful definition, especially to counter the "different states have different definitions" argument. The Supreme Court's ruling (and dissents) in Roper v. Simmons are also worth checking out.

Added 12/3: The Office of Juvenile Justice is a treasure trove of useful statistics.

Added 12/5: What are some of the risks of punishing juveniles like we punish adults? Also, how should we define "violent felonies?"

Added 12/9: Some scattered thoughts on the resolution.

Added 12/10: I cooked up a few resolutional analyses and observations for this resolution.

Added 12/15: What are some key features of the way juveniles are / may be treated in the criminal justice system? Also, here's a list of Value/Criterion pairs.

Added 12/20: The Stanford Encyclopedia of Philosophy has a useful intermediate-level introduction to moral justifications of punishment. (See also its article on legal punishment.)

Added 12/27: I answer a question about juvenile recidivism statistics.

Added 1/3: Guest-blogger Bri Castellini discusses the psychological implications of the Neg.

Added 1/9: Bri Castellini promotes Objectivism as a criterion, and generic case ideas for this resolution. I discuss matters of age and arbitrariness.

Added 1/19: I answer reader questions about punishing juveniles as adults.

Added 1/20: A quick thought about emotions and the law.

Added 1/24: Deconstructing the argument from brain-based differences.

Added 1/30: Due process rights for juveniles are considered.

civil commitment and the illegal drugs resolution

Is it possible for a public health approach to the abuse of illegal drugs to be coercive? In a previous post, citing quarantine as an analogue, I argued that it is. Thanks to a conversation with Mr. Cushman, an attorney friend, I'll explore a second potential analogue for a non-criminal yet coercive public health approach: civil commitment.

Civil commitment is

... process in which a judge decides whether a person who is alleged to be mentally ill should be required to go to a psychiatric hospital or accept other mental health treatment.... A civil commitment is not a criminal conviction and will not go on a criminal record.

On what grounds can someone be civilly committed?

A person can be committed if after hearing from witnesses a judge finds by clear and convincing evidence that the person has a mental disorder and, because of that mental disorder, is:

• Dangerous to self or others, or
• Unable to provide for basic personal needs like health and safety.

Why shouldn't similar criteria justify civil commitment for drug abusers, under the supervision of medical personnel?

And, on the other side, what's the difference between this and a criminal penalty, other than the lack of a criminal record? Is it a distinction without a difference? (And does that point flow Negative?)

It's important to point out that civil commitment is a procedure that exists in free societies, although not without controversy, especially since it clearly violates Mill's harm principle.

value and criterion pairs for the illegal drugs resolution

The NFL LD resolution for November / December 2010 offers many options for frameworks.

Resolved: The abuse of illegal drugs ought to be treated as a matter of public health, not of criminal justice.

The following list--a work in progress--should be taken as a set of suggestions. You might have better ideas, and you know what you know, and what you'll need to research. If you have any brilliant ideas or questions, feel free to share in the comments.

I've separated the pairs into three groups.


Trending Affirmative

V: Justice (defined as "to each their due," or a similar concept)
C: Retribution
Some varieties of retributivism match well with the Affirmative argument that drug abuse itself is not a crime, and hence punishing it is as such is immoral. For the dissenting view--that drug abuse could represent a violation of "equal liberty for all," and its punishment justified on retributivist grounds--see here.


V: Liberty or Autonomy
C: Mill's Harm Principle
Liberty is the basis of human rights and flourishing. Its close cousin, autonomy, precedes any sort of societal or law-and-order consideration, because it is the foundation of human rights and societal order. If the Aff can show that drug abuse is a separate moral matter from drug manufacture or trafficking, then people have a right to hurt themselves through drug abuse. (If they hurt others, we already have justification enough for punishment.)


Trending Negative

V: Health or Societal Welfare
C: Paternalism (via Utilitarianism)
One Aff strategy will be to declare that drug abuse is a "victimless crime." To a paternalist, this is irrelevant; the state has a responsibility to keep folks from harming themselves. (A utilitarian justification exists: one's suffering, or even lack of productivity, inevitably affects society.) The danger, of course, is a slippery slope to tyranny. A paternal state is seldom satisfied with the limits of its power.


V: Societal Welfare
C: Upholding Moral Standards
Morality is good because it holds society together. (There may be social contract implications lurking beneath the surface of this structure.) If the core value of a society, then we are justified in punishing those who commit offenses against morality.
Strategy for Success: This criterion respects differences across societies, since the resolution doesn't specify any particular society. However, it also leaves one open to the attack that morality is difficult to define and agree upon, even within a society.


Could Go Either Way

V: Societal Welfare
C: Utilitarianism
The utilitarian theory of criminal justice is based on the beneficial outcomes of punishment: preventing future crimes through deterrence, incapacitation, and rehabilitation. However, in the wider context of utilitarianism, punishment is counterproductive if its costs outweigh the benefits. Any statistical argument about treatment outcomes or deterrence is most likely utilitarian in nature.

Strategy for Success: Be sure to show how Util leads to SW. Watch out for the "50.01% can kill 49.99%" response, an oversimplification of Utilitarianism. Learn about the nuances and varieties of the moral philosophy. They're worth exploring.


V: Human Rights / Justice
C: International Law / International Human Rights Norms
Since the resolution does not specify a particular society, we can't be 100% certain which rights must be protected. Best, then, to look to the prevailing standards of international law--the rights that people across societies, cultures, and even times have agreed are essential. Is this criterion open to attack? Certainly. But it also presents a clear, highly defensible set of rights (and jurisprudence as evidence). It's worth looking into the international perspective on drug offenses, and whether it supports a public health or a mixed approach.


V: Justice
C: Rawls' first principle of justice (or, more generally, the Rawlsian social contract)


V: Justice
C: Equal protection of the laws


V: Human Rights
C: Locke's Social Contract


V: The General Will
C: Rousseau's Social Contract


V: Justice (defined in terms of morality)
C: The Categorical Imperative
According to Kant, moral actions are good in and of themselves. Furthermore, Kantian theory applies to all rational agents--criminals and law enforcers alike. Those who punish criminals are bound by moral obligation to punish them to the fullest.
Strategy for Success: Many people misunderstand Kant and the Categorical Imperative, so make sure you do the research first.


V: Justice / Societal Welfare
C: The Rule of Law
The Aff could argue that criminalizing drug abuse leads to a War on Drugs, that dehumanizes drug abusers, empowers criminals, sets children against parents and parents against children. This diminishes respect for the law, which is the closest approximation to real justice in a given society. Further, diminishing the rule of law has wider social consequences. (Or, on the Negative, would decriminalizing drugs via a public health approach do the same? Do we risk a slippery slope to drug-fueled, soporific anarchy?)

from the retribution vault

The November/December resolution for 2010 invites us to contrast a public health approach to a criminal justice approach to illegal drug abuse. One of the most fruitful ways to address the conflict is through the lens of retributive justice.

I haven't sketched out an entire position for each side--I'm too busy helping my debate team figure out their cases--but I do have time to post some links to previous writing on the subject. Enjoy.

1. Gerard Bradley's take on punishment as a way of maintaining "equal legal liberty for all."

2. Sharon Dolovich's Rawlsian perspective arrives at a similar destination by a different route.

3. There's more than one kind of retributivism, mind you.

4. A while back I wrote a case about plea bargaining that employed several good retributive arguments.

5. On the other hand, how about a virtue ethics approach?

could public health officials quarantine drug abusers?

1. Let's say that a ranking public health official decides that abuse of illegal drugs is a literal epidemic.

2. How do you contain an epidemic? By quarantine, of course.

3. So the official decides to have drug abusers quarantined in rehab until clean, and, more important, no longer able to spread the mental and emotional virus of addiction.

4. Would that pass muster in a free society? If not, why not?

5. Would it fulfill the affirmative burden of the November-December 2010 LD resolution?

Added: Lest you think it's too far afield, consider the fact that anti-drug vaccines are within the realm of the plausible. So why not take it a step further?

Resolved: The abuse of illegal drugs ought to be treated as a matter of public health, not of criminal justice.

The NFL Lincoln Douglas debate resolution for November / December has been released:

Resolved: The abuse of illegal drugs ought to be treated as a matter of public health, not of criminal justice.

It raises all kinds of interesting questions.

Why do we criminalize certain bad behaviors, but not others? When it comes to illegal drugs, who chooses what's legal--alcohol, tobacco, caffeine--and what's illegal? What can we safely assume about the criminal justice system (or the society) in question? What would a public health response look like? Does prohibition lead inexorably to a War on Drugs? What exactly constitutes "abuse of illegal drugs?" Would drugging someone else be a public health matter if the resolution were affirmed? And who makes the decision to decriminalize drugs--do we use democratic methods? Listen to the experts? What if no consensus can be found? Who has an interest in preserving the status quo? In what ways might prohibition increase the problems of drug abuse? And, from a critical perspective, what about a libertarian stance that says neither option presented by the resolution is valid--that drugs should be a matter of individual choice, and not the State's concern?

John Stuart Mill's "harm principle" offers a good access point for someone unsure of where to begin. You can also bet that utilitarianism will be a popular position, especially for Affirmatives trying to link any kind of prohibition to the War on Drugs.

This should be interesting. As a person who, over time, has come to believe that the American drug war is a tragedy, my inclination is to see the resolution as tough for the Negative to win. I guess we'll see. Regardless, it's a fantastic resolution from an educational perspective--there's a lot of hype, misinformation, and propaganda to sift through, on all sides.

More links, analysis, and observations to come. As always, share your questions and ideas in the comments--they're what make this site so useful for so many!

Added 10/7: Some thoughts about both sides of the resolution.

Added 10/13: One of my PuFo debaters got me thinking: could a public health official quarantine drug abusers?

Added 10/19: Another attempt to cut to the core of the resolution in an LD mailbag.

Added 10/22: Some links to older material on retributive justice.

Added 10/25: Value and criterion pairs.

Added 10/31: What's the most destructive drug?

Added 11/2: A couple links from the IDPC. The first: examining countries that use the death penalty for drug offenses. The second: a policy paper encouraging a treatment-based approach.

Added 11/7: I discuss some cross-examination strategies for this resolution.

Added 11/9: I write about definitions and uniqueness in an LD mailbag.

Added 11/10: A public health effort to warn students away from drugs by having them feel the damaged organs of deceased drug addicts. "This is your brain on drugs" taken to a whole new palpable level.

Added 11/11: Slate magazine's piece about Vancouver BC's "harm reduction" efforts is well worth reading. It's perhaps the continent's most coordinated--and controversial--public health approach.

Added 11/16: I discuss alternative approaches to legalization on the Affirmative. The upshot: you may be able to argue for full legalization and still be resolutional.

Added 11/21: Taking a break from resolution-specific blogging, I offer general advice about countering The Spread.

Added 11/22: Considering civil commitment as an Aff justification.

animal rights for people, too

NOTE: This topic was chosen for Sept. / Oct. 2011. Current comments and thoughts are posted here.


First in a series of previews of potential 2010-2011 LD topics.

An alien spaceship descends on your hometown, bug-eyed spindly-legged creatures emerging from its bowels. "Great," you think. "This is gonna be great." You've always wondered whether there was intelligent life elsewhere in the universe--and here it is, practically knocking down your door.

Actually, it is knocking down your door, and vaporizing your furniture, and corralling you and your family into cages, until you're whisked off to some distant galaxy, ostensibly to serve as entertainment for Emperor Garthron of Planet X.

You try to reason with your captors. Their eyes are blank with apathy, however; they cannot hear, nor can they understand your rudimentary bleating. They ignore your gestures and are unfazed by your scribblings. Your actions are meaningless to them, beyond the detached interest of idle alien curiosity.

How would you convince one of these aliens that their behavior is unjust, and that they've violated your rights?

Or would you even bother to try?

Clearly, your rights exist regardless of your ability to articulate them to an outsider. But what if the situation were reversed, a la District 9? Would intelligent aliens have rights?

Or, more to the point, what if animals find themselves in the same position regarding their human neighbors?

These, and other challenging moral questions, are raised by one of the potential LD topics for the 2010-11 season.

Resolved: Justice requires the recognition of animal rights.

How wide is the circuit of our moral concern? Should it include organisms of different species?

Why do we care about animals?
Suppose you feel anger or sadness about recent reports about whales' susceptibility to industrial toxins. Your sentiments could arise from many sources: appreciation of the whales' beauty and power and intelligence; pity for their helplessness; respect for their unique place in nature, or for divine mandates for environmental stewardship. You could also take a different tack, highlighting their instrumental value--for instance, their essential role in the oceanic ecosystem, or their utility as a food source.

The last makes the problem particularly acute. It's tough to concede rights to something you might grill on the barbecue. Here the culturally arbitrary nature of our attachments becomes evident: some folks dress up their dogs in funny clothes, while other folks eat them. (And if dogs have a right not to suffer, why not whales?)

How do we define "animal?"
Dictionary.com (based on the Random House Unabridged Dictionary) gives us at least three workable definitions.

1.any member of the kingdom Animalia, comprising multicellular organisms that have a well-defined shape and usually limited growth, can move voluntarily, actively acquire food and digest it internally, and have sensory and nervous systems that allow them to respond rapidly to stimuli: some classification schemes also include protozoa and certain other single-celled eukaryotes that have motility and animallike nutritional modes.

This scientific definition would set up an interesting affirmative:

All humans have rights.
All humans are animals.
Therefore, some animals have rights.
Thus, we affirm the resolution.

The second and third definition are much narrower:

2. any such living thing other than a human being.
3. a mammal, as opposed to a fish, bird, etc.

The former sets up a distinction between human rights and animal rights, which is the traditional manner of thinking about such things. The latter is even more restrictive, making it so the affirmative would have to defend rights for whales and grizzlies and gibbons, but not for lobsters, snakes, or chickens. (Serious efforts to grant rights to apes and to cetaceans already exist.)

Which animals would have rights?
The definition chosen points to a potential answer; other arguments might revolve around distinctions based on sentience or intelligence.

Which rights would these animals have?
Hard to say. In Spain, for instance, non-human apes have rights of life and freedom from suffering.

Where do rights come from?
If they come from God, we may have to turn to some kind of scripture to answer the question.
If they're inherent, we have to figure out whether they're inherent in animals.
If they're social constructions, we have to decide whether our society admits nonhumans.
If they're contractual, we have to wonder whether non-signatories are covered by the contract.
If they're legal constructs, we have to determine whether the law assigning rights to animals is wise.
If they're a matter of utility, we need to know whether a life with animal rights increases utility.

Recommended Reading
The SEP's entry on the moral status of animals.
Lawrence Hinman's list of relevant links and resources.

jury nullification and "parameters of acceptable deviance"

Regarding the jury nullification resolution, the affirmative has to show why the practice is not only a check on government power, but a just check. The intersection of morality and legality becomes quite important for both sides.

In "Law and the Parameters of Acceptable Deviance," found in the Fall 2006 edition of the Journal of Criminal Law and Criminology, Mark Edwards argues that jury nullification shows society's "parameters of acceptable deviance," or PADs. The traditional conception of nullification:

Juries confronted with a defendant charged with conduct that is formally illegal but within PADs may nullify the legally appropriate verdict in favor of the normatively appropriate one. Nullification inspired by acceptable deviance results, in criminal trials, in acquittal despite the jurors' belief beyond a reasonable doubt that the defendant is guilty of the crime. In the civil context, it results in a finding of no liability even though the jurors believe that a preponderance of the evidence demonstrates that the defendant is liable in tort.

(It should be noted that in civil trials, nullifying juries can have their verdicts overturned; in criminal trials, however, an acquittal is final, thanks to laws preventing "double jeopardy.")

Edwards, like most other scholars of nullification, recaps the practice's historically high regard.

[J]ury nullification is commonly credited with sparing some violators of the Fugitive Slave Act, Prohibition, and draft laws during the Vietnam War. In other words, in some times and places, aiding escaped slaves, manufacturing alcohol, and resisting the draft were within PADs though formally illegal. In each case, prosecutors and courts could not or would not accommodate PADs. Negotiation-through-practice had failed to produce a parameter of deviance acceptable to both regulators and the regulated.

Essentially, jurors who nullify value their community's moral standards above its legal standards--even when facing personal risk for doing so.

The strength of their fidelity to normatively acceptable standards is revealed by their willingness to enforce them despite personal risk. Although at common law jurors have been immune from prosecution for voting their consciences, they have sometimes been prosecuted after nullification for violating their jurors' oaths by refusing to adhere to the law.

What kind of laws provoke nullifying acquittals?

Today, nullification resulting in acquittal is thought to occur most commonly in "three-strikes" cases and drug cases. Hannaford-Agor and Hans make a distinction between jurors' concerns about the fairness of the law itself, on the one hand, and the fairness of the outcome of a guilty verdict for the defendant, on the other. This distinction seems particularly important in "three-strikes" cases, which can impose enormous penalties for relatively minor offenses, and in those drug cases where small amounts of drugs can result in long sentences. In such cases, the jury may find the defendant's conduct outside of PADs, but may also find the punishment that will be imposed normatively unacceptable. If the legal penalty is less acceptable than the illegal conduct, juries may vote to acquit despite believing the defendant guilty.

"Mandatory minimums," "zero tolerance" policies, "three-strikes" schemes, and the like all take the context out of account, turning justice into a matter of mere calculation. As moral norms are intuitive, sometimes difficult to warrant or rationalize, no wonder juries might find the law too constricting.

Now we come to the core argument. Proponents of nullification either minimize or exclude examples of nullifications-gone-wrong.

Some scholars argue that unjust acquittals should not be considered acts of nullification. But nullification, on its own terms, is neither just nor unjust. Whether the result is just or unjust, nullification is the product of the same phenomena: juries preferring PADs over law. So, normatively acceptable deviance may include unlawful acts that are also unjust. For example, in some times and places, juries might acquit white supremacist defendants who, beyond a reasonable doubt, had killed or assaulted African-American civil rights workers. Historically, juries may also have nullified the law by acquitting murderous cuckolded husbands, rapists "enticed" by their victims, violent nationalists, and others whose conduct was formally illegal but, by the normative sensibilities of their time and place, within PADs.

Edwards goes a step further than most, however. Rather than focusing solely on nullification-as-acquittal, he looks at the opposite side of the coin.

In addition to just and unjust acquittals, jury nullification may-and perhaps most commonly does-take the form of unjust convictions. In other words, juries may convict a defendant even if they are not convinced of guilt beyond a reasonable doubt, if some other characteristic of the defendant or his conduct is considered unacceptably deviant. Juries may be likely to convict a defendant that they find unacceptably deviant, as opposed to a defendant with whom the jury shares common normative sensibilities, even if the evidence of the particular crime with which the defendant is charged is the same. For example, jurors may be inclined to convict a defendant covered in gang-insignia tattoos, even if the evidence that he committed the crime with which he was charged is not strong. Similarly, juries may be inclined to sanction members of formally legal but normatively unacceptably deviant-religions, or professions, or political organizations. The normatively unacceptable behavior is not illegal, which makes formal enforcement against it impossible. But because the behavior is normatively unacceptable, the community may welcome the opportunity to impose sanctions that formal institutions of enforcement cannot.

Few scholars have considered unjust convictions instances of jury nullification, but they are logically identical to jury nullifications resulting in acquittal: they are the product of jurors preferencing PADs over law. Just or unjust, conviction or acquittal, the phenomenon is the same. Moreover, by excluding cases that result in convictions, scholars ignore the phenomenon of unacceptable compliance and miss what is, quite possibly, the majority of jury nullifications.

Here's where I think Edwards' argument is weakest: even if "unacceptable compliance" and "acceptable deviance" are logically equivalent, our justice system, as mentioned above, has an asymmetry between conviction and acquittal. Convictions can be appealed and overturned, so excessively-punitive juries are less of a theoretical risk to justice.

Overall, Edwards' article is worth reading not only for the sake of his claims--especially as they apply to the Negative side of the resolution--but for its extensive footnotes.

value and criterion pairs for the jury nullification resolution

The following is a list of possible value / criterion pairs for the jury nullification resolution.

A couple questions to kickstart your thinking: Why would we have checks on government? Why do we have jury trials, anyway? Why not just have judges decide innocence or guilt?

A work in progress. Suggest your own pairs in the comments!


Trending Affirmative

V: Justice
C: Governmental Legitimacy / the Social Contract
If nullification is a "just check" on government power, it's because of the nature of government's relation to its citizens. A government that oversteps its bounds with unjust laws--even those that are initiated through democratic processes--has violated the social contract. Nullification, then, is a peaceful form of revolution. (You might compare these V/C pairs to those I wrote up for the vigilantism resolution a year ago.)

V: Democracy
C: Popular Sovereignty
At its core, the U.S. strives to be democratic. Popular sovereignty--the idea that the people rule--is the foundation of democracy. Jury nullification places power in the hands of the people, the power to declare that the law is unjust, and that the government has overreached. Combine with arguments that institutions have been corrupted or have stagnated (undue corporate influence, special interest groups, etc.) and you can be the Noam Chomsky of jury nullification.

V: Individual Rights
C: Reducing state power
Similar to the argument above: we live in an age of ever-expanding state power. The justice system in the United States is a well-oiled machine, grinding individuals to powder. Nullification jams the gears, protecting individual rights--especially of those who are unable to afford the best attorneys. (The War on Drugs makes this problem acute; see Paul Butler's Let's Get Free. for a former prosecutor's take on the practice.)



Trending Negative

V: Justice / Democracy
C: The Rule of Law / Due Process of Law
It takes only one nullifier to hang a jury trial. This has the potential to jam the gears of justice, which is one of the primary reasons juries are never instructed about the power of nullification. Furthermore, it's patently unfair and undemocratic for one person to thwart societal standards.

V: Justice
C: Deontology
Because of a little process called "voir dire," a potential nullifier is likely to have to lie--after all, no prosecutor is going to let a person who reviles the drug war stay on a jury in a drug case. But deontological ethics--especially Kant's--forbid lying, even for the sake of the good. (Here it helps to define "justice" as "moral rightness.")

V: The Rule of Law
C: Respecting legal expertise
Ordinary citizens, God bless 'em, don't understand the complexities of the law, questions of constitutionality, and the like. Although the United States has democratic aspects, it is ultimately a constitutional republic, which resists the fickle fervor of the masses. Leave legislation and judicial review to those who are not only appointed, but qualified to do them.


Going Either Way

V: Justice
C: Constitutionalism
In the United States, the Constitution, as the supreme law of the land, is the ultimate standard of justice. Is jury nullification constitutional? There's no right to it--the practice comes from common law--but it's not clearly unconstitutional, either. Essentially, the Supreme Court's few rulings on the subject say that it's a power juries have, but that jurors have no right to be told about it.

V: Societal Welfare
C: Consequentialism / Utilitarianism
If we should evaluate governmental actions--and checks on government power--in the light of their societal consequences, is jury nullification justified?

Resolved: In the United States, the principle of jury nullification is a just check on government.

The March / April Lincoln Douglas debate topic has been released:

Resolved: In the United States, the principle of jury nullification is a just check on government.

I have high hopes for this topic. Jury nullification is a subject that most people know very little about. There's robust debate among legal experts and constitutional scholars as to its justification, and, consequently, a large and interesting literature on the matter.

Jury nullification, in brief, is when a jury acquits a defendant because, in the jury's view, she has been arrested, charged, and tried for breaking an unjust law--regardless of the evidence against her. It raises all sorts of interesting questions.

What democratic or social contractarian principles support or discourage nullification? What is the purpose of a jury--and why do we have jury trials? Do juries understand the law well enough to judge its validity? Is nullification an actual right of juries? If more juries nullified, what would the effect be? Should judges notify juries of their right to nullify?

And, more specific to the resolution: What particularly American needs, issues, and principles, Constitutional or otherwise, support or discourage nullification? Where does it sit in the larger framework of "checks and balances?" Historically, how has nullification worked out?

As you're researching, you'll see that jury nullification in the present-day United States often arises in the context of the War on Drugs. (See here, with additional commentary here, for example.)

Watch this space for further articles and analysis. As always, it's your questions and comments that make this space a truly valuable resource for LD debaters everywhere.

Also, if you're new to LD, I have some articles just for beginners. Click the link and start scrolling.


Added 2/1: The Second Circuit Court of Appeals makes the case against jury nullification. The skinny: it's a power, but not a right, and it ain't right.

Added 2/2: Radley Balko argues that, from time to time, it might be your moral obligation to nullify.

Added 2/11: An initial list of value and criterion pairs.

Added 2/15: An article that takes a "process view" of the jury's responsibility, with implications for the Affirmative.

Added 2/18: A look at the historical role of juries, slanted toward the Negative.

Added 2/21: When juries nullify, they show fidelity to "parameters of acceptable deviance."

Added 2/22: Why juries are an essential component in a democratic society. A brief look at the work of William L. Dwyer.

Added 2/28: A robust theory of public engagement seems like it could provide a solid framework for the Aff. The broader civic importance of juries cannot be understated.

Also, I take another look at William L. Dwyer's work, especially his humanistic view of justice.

Added 3/5: More reasons nullification is unjust.

Added 3/18: A reader sends ideas for resources, plus some thoughts on the Neg.