Resolved: When forced to choose, a just government ought to prioritize universal human rights over its national interest.

The NFL has released the topic for the 2011 national tournament:

Resolved: When forced to choose, a just government ought to prioritize universal human rights over its national interest.

It's classic LD, a clash between cosmopolitanism and sovereignty, and among competing visions of the social contract. It's timeless--and, thanks to recent American involvement in Libyan strife, perfectly timely.

I wrote about this resolution in my summer preview of my favorite topics; it was number three on my list. It reminds me of the UN vs. sovereignty resolution from a few years ago, and will include some of the same basic arguments.

I've reposted some of my initial thoughts, have added more, and will continue to add more material as demand arises.

First, some key questions:

What is a "just government?" What is the nature of its social contract? And which contractarian gets it right? If the world is a Hobbsean "war of all against all," the argument is quite different than if the ideal of justice is Rawlsian egalitarianism.

I'd imagine that many Affs would have a value of justice aligned with a criterion of "protecting rights." But the Neg has to ask in Cross-Ex, immediately: where do rights come from? What defines or limits them? If "universal human rights" includes, for instance, trade or labor rights, must nations abandon protectionist trade schemes, or, conversely, stop trading with nations that allow sweatshops--even if it means a loss of economic security?

Why have nations at all? Why not have a universal government? Wouldn't that be the best way to protect universal human rights? Would affirming the resolution lead to a super-state?

Who or what defines "national interest?" Who is the "agent of action" in the resolution? The people? Government agents? Can we make any assumptions about the nature of the government in the debate?

What situations might lead to an forced choice between universal human rights and a nation's interest? (Some might include, but are not limited to, war, torturing terror suspects, immigration / refugee crises, trade agreements, dealing with dictatorships / oppressive societies.)

If a nation's citizens know that its government is going to prioritize universal human rights, will they remain loyal in a time of crisis? What are the upsides of nationalism?

What obligations follow from prioritizing universal human rights?

Do universal human rights exist? Can the Aff, for the sake of clarity, presume that they do--otherwise there's no forced choice?

Links, Analysis, etc.
1. Which human rights? A post from the vault noting the fractious origins of the United Nations' approach to human rights law.
2. Speaking of, The Universal Declaration of Human Rights
3. The SEP's article on human rights is, as typical, excellent.
4. How should we define "national interest?"

patriotism is so passé

Update: The NFL chose this for the national tournament topic. (Follow the link for the most recent discussion.)

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

Resolved: when forced to choose, a just government ought to prioritize universal human rights over its national interest.

Another of the potential topics for the 2010-11 NFL LD season cuts right to the heart of the social contract, and, in a way, is reminiscent of the UN vs. sovereignty resolution from a few years ago.

Some key questions:

What is a "just government?" What is the nature of its social contract? And which contractarian gets it right? If the world is a Hobbsean "war of all against all," the argument is quite different than if the ideal of justice is Rawlsian egalitarianism.

I'd imagine that many Affs would have a value of justice aligned with a criterion of "protecting rights." But the Neg has to ask in Cross-Ex, immediately: where do rights come from? What defines or limits them? If "universal human rights" includes, for instance, trade or labor rights, must nations abandon protectionist trade schemes, or, conversely, stop trading with nations that allow sweatshops--even if it means a loss of economic security?

Why have nations at all? Why not have a universal government? Wouldn't that be the best way to protect universal human rights? Would affirming the resolution lead to a super-state?

Who or what defines "national interest?" Who is the "agent of action" in the resolution? The people? The government? Can we make any assumptions about the nature of the government in the debate?

What situations might lead to a conflict between universal human rights and a nation's interest? (Some might include, but are not limited to, war, torturing terror suspects, immigration / refugee crises, trade agreements, dealing with dictatorships / oppressive societies.)

If a nation's citizens know that its government is going to prioritize universal human rights, will they remain loyal in a time of crisis? What are the upsides of nationalism?

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?

guest blogger offers Neg arguments for vigilantism resolution

Guest-blogger and frequent commentator comakid has graciously offered to share some favorite Neg arguments on the vigilantism resolution. I edited lightly, mostly for spelling.

It's rather hard to write this, because I didn't really have a "set," pre-written case; on the neg, I found it more useful to go through my opponent's arguments one-by-one. I (and my judges, apparently) liked the extreme amount of clash.

On the other hand, I did have my favorite arguments, so I'll post the ones that make it nigh impossible for the affirmative to win.

My bias is a Policy background; I debate based on what outcome will be best. That means I tend to go for reductio ad absurdum and other stuff. Also, empirical examples make or break the round; reality always overrides theory.

Here we go:

I negate the resolution, Resolved: Vigilantism is justified when the government has failed to enforce the law.

Observations:

Value: Peace defined as AVOIDING A STATE OF NATURE or TOTAL GOVERNMENTAL COLLAPSE
Should be easy to defend. Yes, that IS a Hobbesian state of nature I'm referring to.

Value Criterion: Obviously, Governmental Legitimacy. I usually referenced the need for a federal monopoly of violence (thanks Jim!).

Here are my favorite contentions/ideas that I used during the round; they're solid.

Zero: Effort
Vigilantism is a short-term solution; my opponent can agree that a long-term application of vigilantism in any situation wouldn't solve crime, as violence perpetuates violence. Also, such a system would depend on vigilantism ALWAYS being morally correct and perfect, and at that point, there's no need for law or government anyway, since individuals would be... Christ-like, apparently. Ignoring that line of argumentation, the only real solution would be to put effort into rebuilding a NEW government or REFORMING the old one. Otherwise, you undermine the government's ability to rule, and we fall into a Hobbesian state of nature.

One: Naturalistic Fallacy
The resolution states that the government only needs to fail to enforce the law to justify vigilantism. But, is vigilantism justified when the law isn't good? My opponent has assumed that all laws are good and righteous, when I can easily point out such things as Jim Crow laws. Does my opponent REALLY want to stoop to that level? If he does, then:
A) He agrees the government doesn't have to support Jim Crow laws.
Oh, then all laws aren't justified then. And, therefore, vigilantism isn't justified (sometimes) when the government fails to enforce the law. That's conditional affirmation. He loses.
B) She says that a vigilante wouldn't support such laws.
My opponent fails to take groups like the KKK into consideration.
C) She finally admits that such laws would have to be enforced, for whatever reason.
My opponent has no moral standing. She's freely advocating, at this point, a government that freely abuses and dehumanizes certain members of society. And, at that point, there's no point in the law for those members of society; (and, by now, your opponent has probably turned her whole case around. You can say why vicious racism is wrong, right?)
D) He says Jim Crow laws don't count; I need a broader view.
How about China's One-Child policy? Should vigilantes enforce THAT law if the government fails to do so? It gets worse and worse from here on out.

Two: Social Contract Theory (don't bring up the word: "Hobbes")
A government's job is to represent the people's best interests; the reason we concede power to it is because it NEEDS that power to protect our interests. Therefore, we also put power into the GOVERNMENT to decide when and where to enforce the law. It is not the right of the people to choose when and where to support the government's decision; otherwise, my opponent is directly choosing a state of nature, with no government. I already said why that's bad; that's why peace is my value.

Three: Overkill (My fav.)
Killing shoplifters.

What? Not enough?

Okay. Obviously, the resolution has stated that the "jury" part of due process has failed to work. I'm fine with that; it's the single advantage (for all intents and purposes) that the affirmative has. The other part of due process is the punishment. The resolution only says that vigilantism is justified; we have no clue what such a person could do. Let's say the government decides that a shoplifter (a single mother in poverty) doesn't have to pay a fine or spend jail time. At that point, the government has failed to enforce the law. Let's say Joe Brown, our vigilante, comes up and brutally murders the girl to "enforce" the law.

Even better, one opponent said that vigilantes could simply "imprison" bad people. That brings vivid images of poor shoplifters in basements, chained to a wall for months, maybe years, all across the nation... yuck. Clearly, there's no philosophical basis for this argument, but I (and my judges) liked it.

guest blogger on Locke and vigilantism

As a dissenting view to my recent post on Locke versus the vigilante, I offer the thoughts of Sharry Grewal, this year's Ohio State OHSSL champion. The words are hers, slightly edited by me.

First, actually read the Second Treatise by Locke. If you do, you will find valuable info for the Aff.

In my first contention, I argued that when the government fails to enforce its laws, that state is considered dissolved and society is in the state of nature. I had a quote from Locke supporting this. The quote ended with "and the people are at liberty to provide for themselves."

In my second contention, I argued that the right to punish criminals is a natural right. I had a quote from Locke that said that in the state of nature, vigilantism was needed to enforce natural law, and was a right of all men. I then argued that any right that someone had in the state of nature was a natural right. It is important to note that the right to enforce natural law and punish criminals is the only one that individuals give up when the state is formed. However, when the state dissolves, as in C1, individuals can reclaim this right.

In my third contention, I argued that vigilantism provided the necessary enforcement of natural law to protect the community. I had excellent anthropological evidence of this (from a cross-cultural study) from Dr. Ray Abrahams. Three overarching patterns that Abrahams found: 1. Vigilantism is a frontier phenomenon; occurs in areas where a weak state has a large power vacuum. 2. Vigilantes tend to protect, rather than violate property rights. 3. Vigilantes tend to reduce chaos.

On to the Negative. I took the standard, yet persuasive procedural justice angle here, as well as a disproportionate punishments angle. I proved that disproportionate punishments were inherent to vigilantism because 1. vigilantes had a mob mentality and 2. they let their emotions, rather than a desire for justice take over.

In rebuttals for the negative, I established that vigilantism wasn't needed in the state of nature, because in the state of nature, cooperation would occur. This was established through a Robert Axelrod card. I then gave an excellent statistic to prove this. Out of 196 countries, only 15 are currently at war. I also gave examples of this on the national level. 1. When Fransisco Franco lost authority in 1936, groups of workers in cities. 2. Since 1991, the private sector of Somalia has very little crime rate because its citizens have cooperated. I then claimed advantages of this by saying that cooperation would bring about the re-establishment of the state. I proved that the Aff destroyed this cooperation by locking society into an endless cycle of violence, and consequently, into a state of fear. Whenever an Aff claimed that I wasn't allowing criminals to be punished, I responded that individuals who refused to cooperate will be ostracized (this included criminals and non criminals, so it wasn't vigilantism). Example: economic sanctions on the international arena. I then pointed out that very little crime would occur as a result of the fact that individuals feared reciprocity (if I don't cooperate with you now, you won't cooperate with me in the future) and had a sense of duty to the community. I always was able to extend the international anarchic arena statistic to prove that very little crime/conflict would occur.

Thought-provoking all around. Thanks for sharing, Ms. Grewal.

LD mailbag: the vigilante and the social contract

A reader writes,

I was hoping to run an Aff with Justice as the Value and Locke's Social Contract as the Criterion.

Upon researching a bit more, however, it does become clear that Locke would have been against vigilantes. Is there a way to modify Locke or simply use a generic 'social contract' criterion on the Aff side without getting rocked?

As I (and others) have mentioned elsewhere, classical approaches to the social contract are difficult for the affirmative. Locke disapproves. Hobbes wouldn't countenance it. Rousseau is anyone's guess.

Does that mean the Affirmative has no place to go?

Not quite.

Often in LD debate, competitors name-drop any of the Big Three without fully understanding the nuances in their positions. While this might make them seem well-researched, it can backfire, as a better-informed opponent can point out weaknesses in that philosopher's theory of the contract--or a judge, familiar with the philosopher, will set teeth on edge when hearing his work mangled.

This doesn't have to happen. Why use any of these particular theories when a more generic perspective will suffice? And why rely on crusty dead guys for your contractual logic? This is the beauty of LD: you are allowed to state your own premises and draw your own conclusions. A good argument is a good argument no matter who says it, and anyone who says otherwise is walking head-on into a trap called ad hominem.

For inspiration on the general theory underlying Social Contract thought, a good place to head is the Stanford Encyclopedia of Philosophy, which distinguishes two major strains: contractarianism and contractualism.

Contractarianism, which stems from the Hobbesian line of social contract thought, holds that persons are primarily self-interested, and that a rational assessment of the best strategy for attaining the maximization of their self-interest will lead them to act morally (where the moral norms are determined by the maximization of joint interest) and to consent to governmental authority. Contractarianism argues that we each are motivated to accept morality, as Jan Narveson puts it, "first because we are vulnerable to the depredations of others, and second because we can all benefit from cooperation with others" (1988, 148). Contractualism, which stems from the Kantian line of social contract thought, holds that rationality requires that we respect persons, which in turn requires that moral principles be such that they can be justified to each person. Thus, individuals are not taken to be motivated by self-interest but rather by a commitment to publicly justify the standards of morality to which each will be held. Where Gauthier, Narveson, or economist James Buchanan are the paradigm Hobbesian contractarians, Rawls or Thomas Scanlon would be the paradigm Kantian contractualists.

Once you've chosen your foundation, you'll have to set about showing why the Social Contract produces a legitimate government (or achieves justice or social stability or welfare or whatever your value is), why the government's failure to enforce the law is interpreted as a breakdown in the Contract, and why the vigilante is therefore justified in taking the law into her own hands. It will probably take you a couple pages to hash everything out--and when you're done, you'll have a completed Affirmative case.

A few things to watch out for: a savvy Neg may argue that the law is not The Contract--which is technically true. You might want to pre-empt this by arguing that it doesn't matter; failure to enforce the law perpetuates social disorder, and is a widespread failure of the government to uphold its end of the bargain. Vigilantism, then, is justified for either of two reasons: for the same reason revolution is justified, or for propping up the State.

Also, a great way to get the Negative to agree to the Contract as a valid criterion for justice (if that's your value--which might be a good idea) is to ask a great CX question: What gives the State the right to punish criminals? Chances are their answer will dovetail nicely with your contractarian / contractualist view. If not, you can hammer 'em in your 1AR for failing to warrant the State's legitimacy versus that of the vigilante.

Last, a deontoloigcally-minded Affirmative might be on more solid ground, simply because the bar for justification is set a little lower. We don't have to argue that vigilantism is smart or best for society, only that it's justified. To the deontologist, that means, quite simply, that it's morally right. End of story.

vigilantism in various ethical perspectives

Joe Nusz of The Debate Files has written a few articles on the vigilantism resolution, analyzing it from a couple different ethical perspectives. (Each of his links below points to a longer piece in PDF form.)

To Nusz's take on the Big Three Social Contract positions (Hobbes, Locke, Rousseau), I would add that Hobbes' position, though strongest for the Negative, also puts the Neg in the bind of defending a form of sovereignty that contemporary folk find unappealing. Thus, Locke is probably the best option for the Neg, since his theory of the contract is less autocratic, yet his condemnation of vigilantism is unequivocal.

Nusz also introduces the philosophy of Bernard Williams (for advanced debaters, I'd say), and discusses good ol' Immanuel Kant. Whether you're looking for a new direction or a classic approach, there's something there for you.

a libertarian view of vigilantism

Examining the vigilantism resolution, blog-neighbor Jason Kuznicki has weighed in on the vigilantism resolution, offering a libertarian perspective--and a corrective to what he sees as a flawed understanding of the libertarian view. In a sample passage, Kuznicki considers whether the affirmative should look to the inverse of the resolution for inspiration.

It may therefore be worthwhile to turn matters around, and to ask whether we could defend the proposition “Vigilantism is never justified when the government has failed to enforce the law.”

Accepting this proposition would require a sort of legal quietism; we might be forbidden from ever enforcing laws ourselves, even in cases of revolution, civil disorder, or state collapse. Indeed, we might even be forbidden from forming a new government, at least as long as representatives or partisans of the old government were still committed to it. The right of revolution, particularly of revolution in the peaceful or conservative traditions, would be read out as well. This concedes an awful lot.

For the alternative--and for some interesting questions for the Negative to consider--read the whole thing.

vigilantism as "establishment violence"

Vigilante Politics by H. Jon Rosenbaum and Peter C. Sederberg, is the first chapter in , a landmark 1976 study of the nature, causes, and consequences of vigilantism. It is a valuable resource for LDers considering the March/April resolution.

The first chapter, "Vigilantism: An Analysis of Establishment Violence," is by the editors, and lays out the grounds for the analysis of vigilantism, or, in their terms, "establishment violence." Here are some of the high points.

Unlike revolutionary violence or criminal deviance, vigilantism is fundamentally about preserving the status quo.

The potential for establishment violence is directly related to the degree to which those who have a vested interest in the status quo feel that the formal institutions of boundary maintenance are ineffective in protecting their interests. Essentially, it is a conservative phenomenon.

What does this mean for evaluating vigilantism? Two things.

Ultimately, therefore, an evaluation of vigilantism must be grounded in judgments as to the value of the social order being conserved."

This is an interesting approach for the Negative to take: an argument that vigilantism is worthless in the absence of a legitimate government. If the affirmative merely presumes that the law is just and good and that government is legitimate, we are not yet at the point where we can affirm.

If the affirmative doesn't bite, though, and has set up a social contract framework that withstands this line of attack, the negative can go for an empirical or risk-based approach.

Secondarily, however, one might ask if vigilantism is an efficacious strategy for stabilizing a sociopolitical order and, if so, under what conditions.

Regarding the second point, there are two critical features of vigilantism: it is "negative," in the sense that its goal is to suppress threats to the status quo, and it is ad hoc, arising in response to need on a case-by-case basis.

The authors note, "In general, vigilantism may be initially eufunctional for the stabilization process; but it tends to be dysfunctional over the long run." Why? "[I]t cannot replace formal political institutions and, indeed, it is probably antithetical to their growth."

The costs, long-term, outweigh the benefits.

The potential costs of crime-control vigilantism are obvious: establishment violence can rapidly become worse than the crime itself. Punishments tend to be disproportionate; the innocent have little protection; and quasi-criminal elements are attracted to the movement as a semilegitimate avenue for the expression of their antisocial tendencies. In addition, when law enforcement officials participate in the acts of violence, whatever moral validity the formal system of laws retained may be undermined.

Last, a point that squares with the way the resolution is written:

As an analytical concept, [establishment violence] assumes that there is a recognized sociopolitical order with formalized rules and methods of maintaining its boundaries over time. According to this model one cannot speak of vigilantism where there is no recognized 'establishment,' where conditions of internal war exist, or where there are no rules governing the application of coercion.

This may be important in cases where the affirmative is trying to justify vigilantism in times of anarchy--that the phrase "has failed to enforce the law" represents a massive failure rather than local or situational failure.

Added: I forgot to mention that, quite importantly, the authors distinguish three types of vigilantism: crime-control, social-group-control, and regime-control. Groups such as the KKK would fit into the second category, and, as such, are arguably nonresolutional, although the negative might try to lump them in as a potential risk of legitimizing vigilantism in a society.

The entire article is worth reading, if you can find a copy. If you have any questions or thoughts, share them in the comments.

value and criterion pairs for the vigilantism resolution

Regarding the March / April resolution. A work in progress.

Suggest your own in the comments!

For the Aff

V: Justice
C: Preserving autonomy
Preserving individual autonomy--including the ability to exercise discretion in going after villains--is a necessary route to justice when the government has failed to enforce the law. Autonomy precedes any sort of societal or law-and-order consideration, because it is the foundation of human rights and societal order.

V: Justice
C: Social Contract
The Social Contract is a rough approach to balancing rights claims as a precursor to the formation of a State. Any State that, through some loss of sovereignty, can or will no longer enforce the law, has violated the Contract, and is no longer legitimate. Thus, not only do individuals reserve the right to seek justice outside the State, but the State also cannot bring any claim against those who protect themselves or their community by doing so. In this way, vigilantism and civil disobedience are two sides of a coin.

V: Justice
C: Popular Sovereignty
Vigilantism, as the resolution would have it, is justified when the government has failed--arguably to a significant degree, since we're debating the "general principle," as the rules of LD state--via notions of justice, which is achieved by recognizing that ultimate sovereignty lies in the people, not the State or the law.

V: Justice
C: Utilitarianism
A utilitarian view of justice is founded on two principles of effectiveness: deterrence and incapacitation. Both fail when criminals neither fear the law nor face its consequences. Thus, utilitarianism justifies vigilantism when the government has failed to enforce the law.

V: Justice
C: The Categorical Imperative
Punishing the guilty is a categorical imperative. A Kantian would argue that if one of the last two people on earth, surviving the apocalypse in a concrete bunker, knew beyond a doubt that his fellow survivor was an escaped murderer, he would have duty to execute the evildoer. This justice-over-all approach warrants vigilantism in the face of failed government enforcement.

For the Neg

V: Justice
C: The Rule of Law
Affirming the resolution threatens the rule of law, since it prescribes no real minimum for the government's failure to enforce its statutes. Allowing vigilantism to flourish devalues the very institution of the law, which is the closest approximation to real justice within a given society.

V: Societal Welfare
C: The Rule of Law
If vigilantism is justified, similarly to the argument above, the rule of law is at risk, and society is a few steps removed from anarchy. The proper response to an ineffective or apathetic government is to reform its institutions, not to tear apart the social fabric.

V: Justice or Dignity
C: Protecting Rights
Vigilantism offers no protections of due process rights, no checks on cruel or unusual punishment, no accountability to any exterior force. Suspects--or even known criminals--are still humans, deserving of fair trials and humane treatment.

Resolved: Vigilantism is justified when the government has failed to enforce the law.

The NFL has released the March/April topic for 2009:

Resolved: Vigilantism is justified when the government has failed to enforce the law.

Lots to chew on here, and plenty of analysis to come in the days and weeks ahead. Some initial questions to get you thinking:

What exactly is "vigilantism?" Can we set aside its negative connotations? What is the scope / degree of failure that the resolution requires? What is the timeframe? What makes individuals just in determining who is guilty and deserves punishment? Is law automatically just?

You can expect a lot of justice / social contract reasoning.

Sharing your questions and ideas makes this site even more useful. Speak up in the comments!

(Oh, and it's been a decidedly legal year in LD, eh?)

Update: Right now, I'm trying to arrange a carnival of posts on this topic. If you'd like to contribute, email me (the address is on my profile) with the subject line "a very bloggy vigilantism carnival." Feel free to pass this link on to bloggers who might be interested, too!

Definitions
1. Your standard dictionary sources offer a couple distinct interpretations of "vigilantism," either of which has advantages or disadvantages. One has to do with an ad hoc taking of the law into one's own hands, whether individually or as a group. The other concerns one classic, corporate mode of vigilantism--the "vigilance committee," which is neither a disorganized mob nor an individual acting alone. This is a critical definition choice which greatly alters the ground of the debate. Choose wisely.
2. The law. Note the article. It's important. Define it as a phrase.
3. How Black's Law Dictionary (8th ed.) defines "vigilantism" and "enforcement."

Analysis
1. Some initial thoughts on vigilantism.
2. Value and criterion pairs. A work in progress.
3. When vigilantism gets ridiculous.
4. The symbiotic relationship between vigilantism and legitimate enforcement.
5. Blog-neighbor Mark Olson gives a historical perspective, and links the resolution both to Hobbes and to Jouvenel.
6. From Tanzania, an example of how vigilantism can spur governmental reform.
7. Some analysis of vigilantism from a landmark study.
8. Blog-neighbor Peter Wall dives into the "uncharted waters" of vigilantism (Part I).
9. Some analysis of political theory regarding vigilantism. Much of use for the Neg.
10. Peter Wall, in Part II, discusses the problem of vigilantes' legal (in)expertise. Do they know the law well enough to step into the government's shoes?
11. One place to go for Negative arguments: religious traditions concerning nonviolence. A Christian perspective is examined.
12. Modern examples of vigilantism.
13. Peter Wall dives into evolutionary theory in Part III. A fresh and interesting perspective.
14. Jason Kuznicki offers a libertarian viewpoint.
15. Links to some analysis of different ethical perspectives on the resolution.
16. More on the social contract and vigilantism. What happens when Locke isn't good enough?
17. Guest-bloggers on a dissenting view of Locke and powerful Neg arguments.

For Beginners
If you're starting out in LD, check out these resources: how to construct cases, use a criterion, major philosophers to know, etc.

some strategic considerations for the ICC resolution

Here are some things I've been mentally batting around over the last couple weeks: some strategic moves for the Affirmative and Negative concerning the Jan / Feb international criminal court resolution.

Take 'em with a hefty dose of salt, and suggest your own in the comments.

If I were writing an Aff case, my first choice would have to be whether to go with the real ICC, or something like it. I've presented reasons for the former; however, the latter avoids some of the potential problems with the real ICC, described immediately below.

Thus, it's probably wise to have two Neg cases: one versus the "real ICC" aff, and one against the hypothetical. The real ICC can be attacked in many ways: loopholes, Security Council chicanery, lack of enforcement, lack of jury trials, etc. A hypothetical ICC presents even larger problems: a slippery slope to global tyranny, slippery conceptions of "crimes against humanity," uncertainty about jurisdiction or enforcement.

It's also extremely important to clearly define "crimes against humanity." If you haven't already done so, read this article. (Wikipedia, believe it or not, also has a decent summary.) I don't think the Neg should waste any time trying to minimize the badness of most crimes against humanity; as I mention above, it's more about their potential for prosecutorial abuse, either through slippery definitions or politically-motivated charges.

Many, if not most, Aff arguments I've seen involve the importance of protecting all human rights. It's a moral issue; after all, the resolution says "ought."
If I were running the Neg, I'd immediately place two burdens on the Affirmative:

1. To prove that nations have moral obligations. If they can't do this, we can't affirm, since "ought" is moral.
2. To prove that the U.S. has obligations beyond the immediate good of its own citizens.

In other words, why does any one nation have a duty to humanity as a whole? Don't let Affirmatives merely assert that since something is really, really bad, the US has an obligation to fight against it, etc. They have to warrant this.

A Negative styled after hardline Political Realism would be a perfect way to take Burden #1 above. A Negative based on sovereignty (framed by the Lockean social contract) would be perfect to go with #2.

Another thing no Neg should let the Aff presume is the efficacy of the ICC, real or hypothetical. Aff's running the "real ICC," and Negs facing it, should consider Jack Goldsmith's "The Self-Defeating International Criminal Court," found in the Winter 2003 edition of the University of Chicago Law Review. Not only is the ICC ineffective, Goldsmith argues, but it threatens the effectiveness of current rights protection. A sampling:

The most salient class of human rights violators during the past century has been oppressive leaders who abuse their own people within national borders. Under the traveling dictator exception, the ICC does not touch this class of offenders, even if they travel abroad. Unless oppressive regimes ratify the ICC (something few are expected to do), the ICC simply fails to address the most serious human rights abuses.

The only way to overcome the exception is through Security Council action, which means that "such a referral remains subject to the permanent member politics that so worried ICC supporters." Furthermore, the ICC lacks the resources to extricate a tyrant.

the most important philosophers for Lincoln-Douglas debate

When it comes to Lincoln-Douglas debate, everyone knows you should know a little philosophy--okay, more than a little, a lot--but time is precious. How should you focus your energy and effort?

I've arranged groups of philosophers by their potential usefulness to you. The "basic study" group, for example, is composed of the philosophers you are most likely to hear cited in a round. (I almost wrote "encounter," but realized that the more literal-minded members of my audience might have found such language confusing instead of humorous.)

Warning: the following list is based on practicality, not any Platonic standard of LD-oughtness. Also, the list is provisional--a work in progress. I've almost certainly missed somebody important. Suggest names in the comments, and I'll add them.

Last, if you don't know it already, the Stanford Encyclopedia of Philosophy is a great place to meet--encounter--read about many of these philosophers. Check it out.

The Basics

Plato on justice, rights, and the ideal State (hint: not a democracy)
Aristotle on justice, rights, and democracy
Hobbes on the Social Contract, especially regarding sovereignty, punishment, and the State of Nature
Locke on the Social Contract (but understand his foundations in empirical knowledge and natural theology, which grounds rights)
Rousseau on the Social Contract
Kant on rights, duties, and his formulation of morality encompassing both, The Categorical Imperative
Mill on democracy, utility, free speech, and the Harm Principle
Marx on justice, equality, societal values, revolution, and more
Rawls on a new, pluralist approach to the Social Contract and "justice as fairness," including the Original Position / Veil of Ignorance, the First and Second principle of Justice, democracy, neo-Kantianism
Maslow on value, especially his Hierarchy of Needs

Advanced Study

de Beauvoir on ethics and gender
Berlin on ethics (especially pluralism) and politics
Dewey on moral and political pragmatism and democracy
Hayek on freedom
Hegel on Hegel
Hume on the Social Contract
Arendt on democracy and totalitarianism
Dworkin on morality and law
Dahl on democracy
Schumpeter on democracy
Kierkegaard on reason
Aquinas on Natural Law and Just War Theory
Popper on anti-Platonism
Sartre on freedom and ethics
Habermas on democracy and deliberation
Nozick (especially against Rawls) on rights, freedom, and the Social Contract
Foucault on rights and justice (especially concerning criminality and punishment)
Beccaria on criminal justice and punishment
Bentham on Utilitarianism
Rand on Objectivism, especially as it concerns morality and freedom
Added: Josh's List

Kritik Central

Adorno on critiquing the West
Baudrillard on... good luck.
Derrida on deconstruction
Gadamer on hermeneutics
Levinas on ethics and the Other
Nietzsche on anything
Rorty on pragmatism and democracy


[154th in a series]

LD mailbag: the unavoidable social contract

Another day, another batch of LD emails regarding the felon voting resolution. Let's wade right in.

I stumbled across your page as I was searching for information for the November/December LD resolution. I'm a novice (so I haven't competed in LD before) and I wanted to use the social contract in my Neg. Here's what I have so far:

“Good and evil; reward and punishment, are the only motives to a rational creature: these are the spur and reins whereby all mankind are set on work, and guided."

What John Locke meant by this statement is that for a society to be functional, good and evil in addition to reward and punishment must coexist within it. In a democratic society, all of the preceding conditions can impact the right of voting.

The value being held in this debate is societal welfare. Most people would contest that societal welfare is the well being of a society in matters of health, safety, order, and economics. So how does a democratic society achieve societal welfare? Abraham Lincoln once said “democracy is the government of the people, by the people, for the people”. Therefore, in a democracy, societal welfare is the responsibility of the people. To maintain societal welfare, we must adhere to the social contract, the value criterion of this debate.

The Locke quote is interesting, since it provides a glimpse into Locke's moral thinking regarding education in virtue. As John Marshall notes in John Locke: Resistance, Religion, and Responsibility, children's fundamental appetite for pleasure could only be moderated by persistent and consistent education. "This task was enormously difficult, but it was possible since the mind at birth was a tabula rasa and since [children] were extremely concerned... with how others viewed them." It might be argued that this extends to individuals' roles vis a vis the State; those who impetuously or impertinently disobey the law show a lack of virtue, thus grounding their disqualification from the franchise in accordance with Lockean contractarianism.

Of course, how upholding the social contract gets us to societal welfare requires some warranting, but it can be done.

I had been looking for the fundamental principle underlying a Lockean approach to disenfranchisement. This angle--that the felon's lack of virtue disqualifies her from voting--would sit well with the argument that felons have, in essence, declared war on the Contract, which is the Lockean argument I've seen argued most frequently in the literature.

Okay, on to another case by a completely different author.

Hi, I'm completely new to Lincoln-Douglas Debate, and was hoping you could review the basic thoughts behind my cases.

Pro:

V: Justice
C: Utilitarian Punishment

1. Purpose of Legal System is Utilitarian
2. Punishments sanctioned by the U.S. Legal Code are justified through the concepts of deterrence, incapacitation, and rehabilitation.
3. As disenfranchisement does not serve any of those purposes, it is not legally justified.
4. As disenfranchisement is carried out through the legal system, if it cannot be legally justified, it does not serve the system's purpose (utilitarian)
5. As disenfranchisement is carried out through the legal system, it must be justified legally, as it is not, an affirmation of the resolution is forced.

Problem: how do we extend the utilitarian concepts found in the US Legal Code into a general depiction of "a democratic society?" It can be done, but it needs explanation.

Secondly, the "ought" in the resolution must be defined carefully to include a legal perspective. Or, if we stick with a moral "ought," we have to explain why / how utilitarian punishment fulfills a moral obligation.

Be on the lookout, though, for a Neg who argues that utilitarian punishment is not a sufficient criterion for justice; as some critics note, utilitarian concerns might not include "due process" or "cruel and unusual punishment" constraints, as long as it can be shown that society benefits overall from a harsher penal regime.

Next case, same author:

Con:

V: Democratic Society
C: Upholding Moral and Political Standards of the Mainstream

1. Basic Purpose of Political Deliberation in a Democratic Society is to uphold the moral and political viewpoints of the mainstream
2. Felons, through committing criminal actions, have classified themselves as having atypical moral and political beliefs
3. Allowing Felons to Become a Constituency would, by the nature of a democratic society which represents the people, cause the degradation of the moral standards of society, and directly work against the purpose of a democratic society
4. As affirming the resolution causes moral degradation on a societal level, and works against the purpose of a democratic society, it must be negated

My main problem is with #3 of the Con Case, in that felons, as an unrealized constituency, despite being 4.7 million in number, are spread out geographically, making their impact on society doubtful. Any thoughts on how to address this?

#1 is interesting; it squares with an older view of democracy that doesn't include provisions for minority rights. (This narrow view, though, is susceptible to the charge that the democracy will use felony laws as a way to purposefully disenfranchise dissenters.)

#3 should be argued along largely theoretical lines, with a nod to perhaps the Florida experience in 2000, when Gore lost narrowly and, according to some scholars, likely would have won if felons had been able to vote. (Note that this example can backfire, though.) Regardless of the particular outcome, felon suffrage could have made a big difference.

# 3 isn't sufficient; it needs some help. What of the victims who, seeing that those who injured them are able to vote, become disenchanted with the system? A government that allows felons to shape its course could be deemed illegitimate by those who had traded their liberties to ensure their security, never thinking that the contract could be gamed by those who don't play by the rules. (Whoa... there's the social contract again, sneaking into every Neg case.)

'Tis all for now. Questions? Comments? Fire away!

a critical question for contractarian neg cases in the felon voting resolution

Regarding the current resolution, this is about the clearest statement for the negative position based on retribution and the social contract that you're going to find. It comes from "The prisoner's campaign: Felony disenfranchisement laws and the right to hold public office," by Andrea Steinacker, found in the Brigham Young University Law Review.

The main theory behind retributive punishment is that "someone who has violated the rights of others should be penalized, and punishment restores the moral order that has been breached by the original wrongful act" [citing Ken Greenwalt's article, "Punishment," in the Encyclopedia of Crime and Justice]. Retribution is also seen in terms of fairness to the law-abiding citizen. Under John Locke's concept of the social compact, "[a] man who breaks the laws he has authorized his agent to make for his own governance could fairly have been thought to have abandoned the right to participate in further administering the compact" [citing Green v. Board of Elections]. Under the retributive theory of punishment, those who break the law should not be allowed to participate in making the law, whether as a voter or as a political officer.

Later on, Steinacker quotes from another important felon disenfranchisement case, Texas Supporters of Workers World Party Presidential Candidates v. Strake:

"The State has a valid interest in ensuring that the rules of its society are made by those who have not shown an unwillingness to abide by those rules."

If you note carefully, neither of these quotes really explains why the rulebreaker, as it were, has abandoned the right. It's merely presumed to be "fair" and "valid."

So, here's the question: why? Why is it fair and valid to presume that disenfranchisement is a logical or natural consequence of violating the social contract? In other words, does an argument to the social contract really run deep enough?

Update: Mr. Kuznicki provides an answer.

LD mailbag: aff and neg case ideas

Today's LD mailbag, about the Nov/Dec LD resolution, comes with two shell cases. Let's see if we can add a little yolk.

I'm a fairly new debater and I'm having a little trouble building my case (I've already been working on it for two days) and I'm still a bit stumped. I was wondering if you could give me a few pointers or just point me in the right direction.

Here is my Aff case so far.

Value- Justice
Criterion-Distributive Justice

cont 1-Felons are citizens
(evidence)
sub point A -all citizens should have the same rights
(evidence saying because all felons are citizens and they follow the same laws and have same legal duties the government should not be able to take away their rights if the felon has already served their sentence or is serving at the time)

sub point B-felons are equal to other citizens
(evidence supporting that felons are just like other people not completely moral or immoral and disenfranchising them is unjust)

Cont 2 Disenfranchisement is unjust punishment (I'm not quite sure how to tie it into my value and criterion if possible)

subpoint A-does not serve as a deterrent
(no evidence yet)

subpoint B- works against rehabilitation
(no evidence yet)

cont 3-???

First, "distributive justice" doesn't seem to fit as a criterion, since it doesn't match the second contention, and only obliquely relates to the first. Instead, we might have a dual criterion. One is a utilitarian justification: just punishment deters crime and rehabilitates felons (Contention 2). The other is a side constraint: punishment must be given within the bounds of due process and equal treatment under the law (Contention 1). I think those, if properly argued and defended, could be sufficient grounds to reject disenfranchisement of felons.

Subpoint A of the first contention needs help, though. If all citizens deserve the same rights, what justification do we have for taking away felons' rights to life, liberty, and property? We have to show either that voting is fundamental to citizenship in a way that those rights aren't, or come up with some other principle of justice that disenfranchisement violates, and retool the contention.

Okay, on to another case.

I'm a novice and I was to hoping to get away from the social contract on the negative side.

A teammate gave me the idea of running how felon's mindset is bad for enfranchising them. Also, something about how that is demonstrated by a town with a non-felon population of 3,000 and in the same county there's a prison with a population of 5,000.
My value would be societal welfare, and my criterion would be governmental legitimacy.

The problem is, I'm having a hard time understanding how to link it all together and how to argue it without being subjective... especially after writing my affirmative case.

The first argument, that felons are somehow unfit to vote, is usually argued in this way: felons have committed a crime and therefore have bad moral judgment; the state has the obligation to protect itself against those with bad moral judgment; therefore, the state has the obligation to disenfranchise felons. Still, the social contract lurks just outside, reappearing should any affirmative ask one simple question: in a democratic society, where does the right to vote come from?

The mathematical hypothetical example given, at first, seems powerful. If 5,000 incarcerated felons vote en masse to elect a soft-on-crime candidate, despite the wishes of the peaceful minority, won't the social fabric be torn apart?

Not exactly, for several reasons. First, a society in which more than half the population are felons is hard to describe as "democratic;" it would be so awash in criminality to necessitate a tyrannical government, or have such terrifyingly bad laws as to strain credibility. Second, such a society would be so economically stagnant and hard to manage (who's going to keep that many prisoners under lock and key?) that it would soon implode. Third, the only realistic scenario under which this would take place is a "prison town" where the inmates are mostly residents of some other locale. (That's how it works in the U.S., at least. The prison isn't your legal residence.)

So, unless I'm making some huge error in fact or reasoning, I find that argument difficult to sustain.

If you have case questions, either post them in the comments or email them to me, and I'll tackle them here on the blog.

a lukewarm defense of democracy

The Nov/Dec LD resolution forces debaters to consider the value of voting. In an otherwise unrelated blog post, Jason Kuznicki, who has a knack for clearly explaining complex ideas, provides a connection between the social contract and the right to vote.

Voting is a tricky thing, since it’s a positive, or government-created right; you don’t have a right to vote in the state of nature. The social contract creates voting.

By entering into society, you surrender a distinctly limited number of your natural rights, for instance the right to extract restitution forcibly from those who have wronged you. In compensation for giving these up, the state gives you some other rights (like voting, and trial by jury). All the other rights not clearly mentioned in the deal are yours to keep, at least in theory. And there’s no sense in saying you’ve given up more than you really have.

Negatives who are running the social contract analysis need to frame the distinction between natural rights and positive rights; it's essential to establishing the government's warrant for taking away the right to vote when a felon is convicted.

I like Kuznicki's answer to the objection that the social contract is a mere construct (call this the "I didn't sign any social contract" objection). Kuznicki writes,

The real question is not whether there was a discrete moment in which you entered into society. Clearly there was no such moment.

We tell ourselves the story of the social contract as a way of comparing real life to a situation that is obviously just. The more that real-life outcomes approximate the obviously just situation of the social contract, the more confident we can be in the justice of the actual situation. Likewise, the less they resemble an obviously just case, the more we can doubt their justice. Thus, although you never entered into society as you would enter into a contract, we still evaluate society as if you did — and when we find things that you would never accept in a contract, there is a plausible case to be made that these things are unjust.

Later on, in the comments, we get a social contract-esque defense of democracy.

I see the greatest value to democracy as follows: It ensures, better than any other system we know, a peaceful and orderly transition of power. Peace and order are still worth keeping, even if I disagree with the policies of the candidates running.

Kuznicki calls this "lukewarm." Still, from a realistic perspective, lukewarm might be the hottest water we can get.

Added: Oh, and if you need them, here are Kuznicki's bona fides.

LD mailbag: felons and Foucault

Readers have sent in some good LD questions regarding the current "felon voting" resolution. I'm answering them here in the hopes that others will gain insight as well. As always, add further questions or constructive criticism in the comments.

I'm pretty new at debating, and I'm having trouble writing cases. (I've been at this computer for the last six hours and still haven't come up with much!)

Here's my affirmative so far:
V: Justice
VC: ?
C1: The right to vote ought to be inalienable for all people in a democratic society
[backed up with evidence, etc.]
C2: ?
C3: ?
And my negative:
V: Justice
VC: ?
Obs.1: Felons = incarcerated AND ex-felons, affirmative must prove both
C1: Currently incarcerated felons are wards of the state and do not pay taxes, thus they should not retain the right to vote.
C2: Felons have shown lack of judgment by committing felonies, thus they cannot be trusted to vote.

Blargh. I'm so bad at this writing cases thing. What should I do?

I think either case is workable, with a few tweaks. Here's how I'd go about fixing them.

It seems like your criterion is "protection of rights." If justice is what people are due, then in a democratic society, they are due their rights. Right?

So, let's set up the affirmative this way:

1. The right to vote is inalienable for all people. (Felons are people, too.)
2. The right to vote is fundamental to other rights. (Which ties into the third contention.)
3. If felons are disenfranchised, society can use the law to disenfranchise dissent, a precious right in a democracy. (In the South, some disenfranchisement laws were drafted specifically to target African Americans.)

Now, for the negative.

C1 is not very strong, at least compared to other potential arguments. The elderly, for example, often pay zero taxes because all their income comes from social security. Yet they are allowed to vote.
C2 is workable.
C3 might be that felons have violated the social contract.

If the value was societal welfare, and the criterion the Social Contract, we could have two contentions.

C1. Felons' lack of judgment, combined with the right to vote, would threaten social order (thus tearing apart everything the social contract is meant to establish and maintain).
C2. Felons' violation of the social contract inherently warrants disenfranchisement.

Another reader writes,

I was wondering if you knew how Foucault's Normalization theory could be applied to the new LD resolution on felon disenfranchisement.

I'm no expert on Foucault--I'll leave that to Josh--but I think Foucault applies to this resolution in several ways. I mention one here.

"Normalization" is the process by which society standardizes its norms as a means of control. Felon disenfranchisement laws are perhaps the least subtle instance of this tactic, since they rely on the reason in the negative C1 listed above: that felons are "abnormal," and thus lose the right to vote. For a primer on Foucault's theory of societal punishment, check out this article.

So, Josh: any other thoughts?

value and criterion pairs for the felon voting resolution

Here are several value/criterion structures to consider for the November/December resolution, "In a democratic society, felons ought to retain the right to vote." Each value is chosen under the assumption that it could be defended as the core value of a democratic society.

I won't say which goes with either side; many, if not all, could apply to either Aff or Neg. That's determined largely by the arguments and evidence you assemble.

This is a first draft; as I go along, I'll add analysis to every offering.

Feel free to suggest your own--which I'll tack on at the bottom--or critique the various offerings, in the comments.

V: Human Rights
C: International Law
A democratic society, to be truly democratic, must uphold human rights. (You can figure out why.) 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).

V: Freedom
C: Protecting Human Rights
Perhaps human rights themselves are only means to a greater end: freedom. Once you explain why freedom is the ultimate value of a democratic society, you can explain why prserving rights is essential to human freedom. Note that this structure works well for Aff or Neg; you have to provide the reasoning for either.

V: Justice (defined as "to each their due," or a similar concept)
C: Retribution

V: Justice
C: Another applicable criterion for punishing felons

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

V: Moral Pluralism
C: Tolerance

V: Societal Welfare
C: Utilitarianism
Utilitarianism is quite possibly the closest allied moral framework with democracy. After all, if the goal is the greatest good for the greatest number, what better way, societally, to achieve this than through democratic means? If the ultimate aim of a democratic society is its own well-being, then utilitarianism offers a way to determine whether felons' suffrage adds to or detracts from overall happiness.
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 Util. Learn about the nuances and varieties of Utilitarianism.

V: Autonomy
C: Respecting Human Rights

V: Human Dignity
C: Respect for Autonomy

V: Justice
C: Equal protection of the laws

V: Societal Welfare
C: The rule of law

V: Human Rights
C: Locke's Social Contract

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

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 democratic 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 with in a society.


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, which are the foundation of a democratic society. Felons are rational agents, and must adhere to the Categorical Imperative. Those who punish them 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: The Common Good
C: Deliberative Democracy
The resolution concerns the aim of a democratic society, and the balanced or opposed interests of innocents and criminals. If deliberative democracy is the moral means to the common good, and felons threaten the deliberative process when they are allowed suffrage, then we ought not allow felons the right to vote.
Strategy for Success: Requires quality research and a quality debater. Not for beginners.

I think that reader Anand's analysis here is better than my hastily conceived idea. (Scroll down through the comments to see the discussion.) Anand writes,

Jim, I think we agree that deliberative democracy isn't directly applicable.

But I was just thinking about it, and one could argue that since the resolution is discussing what felons ought to have in a democracy, it requires a picture of what a democracy ought to be.

Obviously a democracy can exist regardless of whether felon can vote. So the challenge is showing that enfranchising felons leads (or doesn't lead on the neg) to a more ideal democracy.

Therefore, if you can show that your conception of an ideal democracy is more ideal than your opponent's, and if your ideal demands felon suffrage, you should win.

I don't think that I'm necessarily using deliberative democracy, but my case will have a strong Rawlsian framework with additional analysis on punishment and ideal democracy from behind the veil.

V: Freedom
C: Libertarianism / Minimal State

Rawls and the rights of felons

Why might you use Rawls for the November/December resolution? Answer: Rawls is all over democracy. In fact, a Rawlsian conception of a "democratic society" could be the basis of an interesting case.

In "Political illiberalism: The paradox of disenfranchisement and the ambivalences of Rawlsian justice," found in the January 1997 Yale Law Journal, Jesse Furman, who aims to critique Rawls, shows the strengths and weaknesses of a Rawlsian approach to punishment as it relates to felon voting.

Furman describes Rawls's view of a democratic society:

Rawls's principal aim in Political Liberalism is to specify a "political conception of justice" given the "fact of reasonable pluralism": the fact that a democratic society is characterized "not simply by a pluralism of comprehensive religious, philosophical, and moral doctrines but by a pluralism of incompatible yet reasonable comprehensive doctrines." The political conception is conceived as the focus of an "overlapping consensus" of these differing comprehensive doctrines.

From the clash of perspectives behind the veil of ignorance arises a complete framework for a liberal society.

[T]he first principle of justice as fairness is that each person is to have an equal right to the most extensive total system of basic liberties. This principle is defined as prior to the second principle, meaning that greater social or economic advantages can neither justify nor compensate for a deviation from the institutions of equal liberty.... [T]he "worth of the political liberties to all citizens... must be approximately equal, or at least sufficiently equal, in the sense that everyone has a fair opportunity to hold public office and to influence the outcome of political decisions." Principal among all the basic liberties, therefore, are the political liberties; principal among the political liberties is the right to vote. As Rawls writes in A Theory of Justice: "[A]ll citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply."

Furman cites Supreme Court Justice Abe Fortas, who noted that the franchise "is the sacred and most important instrument of democracy." Furman, quoting Rawls, then explains the reason for the centrality of suffrage.

First, the political liberties are "essential... to make sure that the fair political process specified by the constitution is open to everyone on a basis of rough equality." Second, they are crucial "in order to establish just legislation." As a result, "it is not implausible that these liberties alone should receive the special guarantee of fair value. This guarantee is a natural focal point between merely formal liberty on the one side and some kind of wider guarantee for all basic liberties on the other." This argument is based principally on pragmatic concerns: Political liberties are crucial because they provide access to the process that determines the value of all the basic liberties.

Two Supreme Court cases that take a Rawlsian stance: Yick Wo v. Hopkins, and Wesberry v. Sanders, which held that

"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined."

The work of the Affirmative running Rawls, then, is to show how denying felons the franchise undermines the value of the vote, by using "justice as fairness" as the value of a democratic society, and Rawls' first principle as a criterion.

There is a foundational critique of Rawls, though, for the Affirmative who's running something else and facing a Rawlsian neg (and a warning to both sides who run with Rawls). Consider the "original position," from which the putative members of a just society choose the rules. Reasoning from this plural starting point, Rawls aims to establish a democratic society that not only meets the approval of a vast majority of its members, but is warranted to the degree that criminality can be punished. To this end, Furman notes, Rawls argues that not only is a democratic society reasonable, but its principles are obviously reasonable to all, even to criminals. In other words, it is simply unreasonable for someone to consider the principles derived from the original position to be unjust.

Perversely enough, therefore, the dissonant individuals themselves are considered participants in their own treatment or punishment. Indeed, this insight forms the basis of a brief critique of social contract theory by the French philosopher Michel Foucault: "In effect the offense opposes an individual to the entire social body; in order to punish him, society has the right to oppose him in its entirety. It is an unequal struggle: on one side are all the forces, all the power, all the rights." The criminal in such circumstances faces a penalty that "seems to be without bounds," while because he is a part of the social body that is bound by the contract, he cannot object--he wills his own punishment....

Thus it seems that justice as fairness is voluntary and liberal only up to a point: only for those whose self-understandings would have them voluntarily comply with it in the first place, or whose self-understandings are easily adaptable to the mandatory self-understandings prescribed by justice as fairness. For all others, Rawls can only say: "Your nature is your misfortune."

Anyone considering the core values of a democratic society must include tolerance in that list; a democratic society that cannot handle friendly dissent, as Karl Popper noted, is ceding to its totalitarian impulses. Rawls seems to be edging close to a reasonable totalitarianism by majority rule.

What's the alternative, then? Furman describes a "duty to engage in dialogue" as the answer to Rawls' overreliance on reason. Democracy is messy, and a democratic society simply has to live with that fact.

Addendum
On the other hand, see here for a Rawlsian defense of punishment.

All Hail Rawls Addendum
I'm holding on to this thought for the next time a U.S.-centered resolution rolls around, and I need to warrant Rawls as my criterion-maker of choice:

Rawls's liberal political philosophy is the theory most closely aligned with the way we live and view ourselves in America today; his ideals reflect and inform those ideals that American institutions attempt to fulfill.

There may be other ways to put it, but this one has a certain grace. (Read the whole article to learn why Furman is convinced of Rawl's dominion over American political thought.)

Final Note
This post is a little disjointed and rushed, for the sake of getting out there so you could critique it with all due haste. So, have at it.