The Fallacy of Identity Logic in Liberalism

(sent to lawcourts)
 
... I think it would be more incoherent to argue "two wrongs" or to argue from idolatry.

Besides, as long as we are talking coherency in belief,  I think it would be more helpful to ask ourselves a couple of questions: (a) what is ideology; and (b) why doesn't the bottom paragraph qualify as one? It seems to me that groups who argue for a group-access policy fundamentally offer a charged belief system. And that if this issue were ever properly inspected -- you know, like we do all hegemony in the academy (cough, cough) -- that we might find that there are more unitary tasks and attributes present in all of us, and that we should find those tasks by looking inside of people and not at their shells. 

For any attribute you find that "women" have, I'm sure you will find it in various formats in all sorts of men, as is the case in reverse. One of the most ridiculous things about this sort of team logic is what it does to people like me. There are literally hoards of people who get thrown into "power groups" when they have nothing to do with the stereotypes of those groups -- just as people purporting to be for "women" very often have traits and beliefs nothing like those for whom they claim to speak. Just as ecological fallacy is a fallacy about averages in statistics, so too is this group-politics rhetoric. 

We need to teach people that they get selected because of traits, not appearances. And if "experiences" count, they have to be delineated rather than just assumed to accompany a chromosome. And once we delineate them, we are going to find that some Appalachian males have them too, as do gay males, as do Iraq war veterans.

Identity Politics, Ideology, Students and Selfishneess

(sent to law courts in response to a question about whether students get charged up over affirmative action and other kinds of race issues. The original poster said his classes have seen lessened interest) 

I have had an opposite experience.

I taught 90 kids a pop at Penn State for 3 years in a class that tackled all of these sorts of issues. In fact, I created the class. One of the pedagogical approaches I used was to be critical of all positions (left or right0. In other words, to challenge all the views on the subject. I found it exceedingly difficult to reach common ground. Not only would barriers exist along the lines of race, gender, sexual orientation and so forth, but also across ideological grounds that existed for the very purpose of roping groups or interests together. In fact, if you set about in the class to go for "the center" -- as in, judge people as individuals, not as groups --  that alone was seen as mischief  by those indulged with what you call "identity politics." The situation here in Dayton is very, very different -- but not at all "better" (and for reasons I don't want to get into).

From my perspective, this IS a generational issue, but not as you suspect. I sense that kids construct ideologies about these things based on whether it suits their interests. If you are heading out of college and into the job market, you will like preferences that help you but not those that hinder. This would be consistent with a youth culture that has everything, right-now, instantaneously -- and that frequently uses the word "bias" to mean "I didn't get what I wanted." It doesn't help professors inculcate students with a world view defined by "politics, selfishness, passions and ideology" rather than things like ethics, character, rule, virtue, justification and so forth. In fact, if the professors don't think these things exist, why on earth would students not be simply bratty and self-centered about how to stand in line for jobs?

If you look at the exchange between Paul and Scott, all that really existed was a battle of world views. One view says there must be discrimination if a pool doesn't look right; another might say "not unless we have it under a microscope." 

Somewhere down the line, people have to lay down their arms (including professors). I don't think "identity politics" helps us do that. We have to see inside of individuals. We have to transcend cultural form. We should be letting students see the age they live in and that they are existing within a constructed cultural existence. If they could get a bird's eye perspective -- be more philosophical and less combative -- the situation could be approached with more of a level head.  We also have to listen to them when they talk of unfairness, no matter what it is. And we have to be more Rortarian in terms of getting others to see what another's life is like.  And I think we also have to make sure that everyone -- from Appalachians to those in south-side Chicago -- get a fair chance to be judged for what they offer.   
 
Regards.
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg
New Discussion Group: http://groups.yahoo.com/group/Wittrs/

More on a Universal Method in Judging

(sent to conlaw prof)
 
... Bobby,  I can't agree with any of this.

The basic difference in the dynamic of judging versus legislating is that one deploys casuistry; the other group-placating. Tip O'Neal was an exemplar at being a politician, not a judge. Holmes and John Marshall (and Solomon and Hercules) are exemplars at judging, not politicians. George Washington, Lincoln and Roosevelt were exemplars at being executives. None of these individuals either within their own group or compared across groups deployed the same "decision methodology." In legislative circles, they debate about whether to be a "delegate, politico or trustee." They debate in executive circles how best to manage. You could invert your question and say: since all legislators do not deploy the same method or style, shouldn't they all be judges? Even capitalism has different philosophies of how to play. You don't even have uniform methods for running companies. Let me ask you as a professor -- is pedagogy uniform? Seems to me the first
question out the door is "what is your teaching philosophy?" Don't parents have philosophies for raising kids? Why on earth would judging not also develop competing paradigmatic views as to how to make the best of it?

Judges are only required to make the best sense of the law they can to the best of their ability. Legislators are required to group-placate to a point of maximal efficiency. Each requires a different set of skills and "methods," but there is none within each domain that is uniform.

We worry about the methods of judging the same that we worry of the quality of art in a painting. I would argue, precisely, that is what the worry consists of. Also, I don't see "ideology" as a "method of decision" for a legislator. Both judges and legislators are "capitalist," but do something different with their brains when they group-placate versus deploy casuistry. Better to say that one who judges or legislates according to beliefs about capitalism is an "idealist" or "dogmatist" in method -- which, if it appeared in legislative or judicial institutions, would manifest itself differently, given the differences in the cultural practices of judging/legislating.        

Regards.  
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg

Universality in Judging

(sent to conlawprof)
 
Hi Bobby.

I'm not exactly sure I'm following. Usually these discussions about about a particular judge and the quality of his or her casuistry. If we are now talking different judges, I see two cans of worms here. One is in the realm of something post modern, the other is the bane of classicism. Let's take old school first. Back in the day, it was common to want to believe that a universal method existed for judging law. If efforts in brain science, cognition, philosophy, law, logic, metaphysics or what have you produce such a thing, then I suppose it would be proper to expect all judges to use the correct method. But because we live in a jurisprudential and epistemological world where formalism and universality has given way to concepts like structure and integrity, we live in a world where judges are only expected to have a good method or defensible reasons for what they do. So there are plenty of reasons why judges would have different approaches, much the
same way that in dietetics there are different approaches (zone, Atkins, food pyramid). We know from the failings of the past that "law" cannot be a hard science.

Now, let's go in the other direction. Would we ever reach the position where we might say that Judge A should use method X and Judge B should use method Y (as in, proscribing this)? The only argument here would be something like this. Let's say judge A's brain is good at math and abstract reasoning, while Judge B's brain is good a social intelligence. Let's say, as a result, A is a good philosopher but has poor common sense. And B is very good at seeing how people feel and is especially well read in literature. If there ever arises a case that the law could afford a resolution either way -- let's say, a strip search of a girl in high school -- then how A and B come to understand things in their brain might be important. A might say, how is this different from locker room dressing (using the faculty of comparison and contrast).  B might process through the lens of social construction and see empathy. Both might reach the same conclusion -- the
search goes too far.  But in each case, we might argue that A's brain can only get at the world through A's way, and so it is for B. And one might argue that A needs B around to talk about the case and visa versa. A needs reminded about things he cannot see as much as B does. And so, we might say of these two judges that A should use more formalistic techniques because they are what he or she is good at, and B should use other important cognitive tasks because they need to be there too. So if in the end we want really good cognition of problems, maybe we need each judge to have methods that are becoming of their traits.

Just an idea. I wonder if this query is not similar to asking whether business partners or competitors should use the same logics. My sense is that if there is one that is superior, we would have to use it, but if not, it is whatever makes for a more enriched perspective/context.  

Regards.  
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg

Does Good Judging Require a Uniform Method?

(sent to conlawprof)
 
... I think we would need to know what "same methodology" referred to. It seems that the only ethical requirement for good casuistry is to avoid internal contradictions and being fickle (changing your mind all the time). I could think of one having a very complicated decision constituence that deployed modalities of thought with purpose. For example, one might be a pragmatist if consequences became super extreme (civil war and the like) but be more orthodox if they are not. The same exact judge might be a "natural law" theorist for certain things (like non-amendment clauses in constitutions) but be a positivist for the other things constitutions say. These are not contradictions; they are choices made with purpose that construct the judicial belief system. So I think the only requirement here is that the judge has to justify within the body of belief why the modality is switching and what, therefore, the belief constituence consists of. 

At the end of the day, I bet all that one can get here is something in the nature of a character assessment. You say, in effect, "baloney" if you find the belief constituence is a  poor offering. I say this myself when I see Scalia being originalist for historical text but textualist for contemporary text. (In fact, one could argue it is more rational to switch these).  

At the end of the day, judging casuistry is no different than judging art. Really, that is all there is to philosophy of law at the (very) end of the day. The issue is whether the craft has "integrity" within the community who make up the cultural practice.

Regards.
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg