Posts Tagged ‘ethics’
23 – bonobo morality superior to Christianity
the Cyrus Cylinder, dated to 539 BCE
In his strange but interesting book, Homo Deus, Yuval Noah Harari reveals an obsessive interest in religion. While recognising that the traditional religions such as Christianity, which dominated Europe and its colonies and offshoots for a millennium and a half, no longer provide a template for our political and social organisation, he’s happy to label the isms that he claims are traditional religion’s successors, namely humanism, liberalism, progressivism and scientism, as religions too. And the final section of his book bears the title ‘the data religion’, and is all about our new-found worship of algorithms.
Personally I much prefer a tighter definition of religion, being a belief in gods and god-like entities, or spiritual, or spirit-ish, beings such as sprites, fairies or mischief-making bunyips and such – thingummies that have an effect on our world but are too superior to ever be caught by hand or on camera. Or they belong to another world or dimension or something. Harari dismisses the non-believers’ dismissal of these beings as supernatural, but he offers no better alternative. He seems to have caught the Nietschean affliction of trying to stand outside of everything so he can be disdainful of it.
Traditional religions, however, suffer from the hearsay problem. I first heard about the Judeo-Christian god from a Sunday School teacher who no doubt heard about him from either his parents or rellies, or some other churchy elder, and so on down the generations, with mostly increasing conviction as we go back in time. Another way to describe him, or gods and religions in general, is as memes, thought-bubbles, differing in detail and import as they pass between people, but always presented with a sort of prestigious vagueness. God, for example, is divine, but what does this word mean? How do we collect evidence for divinity? Much easier to collect evidence for the processes involved in the Earth’s origin. Humans are lazy that way.
I don’t want to enter into a philosophical or theological discussion here – god forbid – but I’m concerned about the baleful effect that certain religions, those that still influence large numbers of human apes today, have on morality. Religion, as we know, tends to congeal morality in the time-frame of that religion’s founding, or its high-water mark. And even then it doesn’t stand up to much scrutiny. Take the story of ‘the woman taken in adultery’, in the soi-disant gospel of John, about which there’s much argy-bargy as to authenticity (it may have been a later interpolation), as if any of these writings are particularly authentic. The issue here, for me at least, is about whether the ‘sin’ is really a sin, or more generally what is a sin, though in the religious context of the time, the point of the story is that, since everyone sins, this woman’s sin deserves forgiveness, like everyone else’s sins, as long as she sins ‘no more’. Of course, it’s a pretty piss-poor argument, even if you equate sinning with wrong-doing according to the legalities of the day. Context is everything, and no context is given in the story. Adultery isn’t even clearly defined. It’s well-known, and other biblical texts bear witness to the fact, that women were treated as chattels in this era and region, and very often married off as children to men twice or thrice their age, with no fellow-feeling about it. Bonobos wouldn’t have stood for it. So my advice to this youngster would’ve been ‘go for it lassie, and pay no attention to those arseholes’. Depending on the context, that is.
And yet this sort of context-free drivel is still taken seriously by those who aren’t religious and should know better. I’ve heard a professional philosopher, much younger than myself and by no means religious, argue, or simply claim, that our legal system is based on Christian teaching. That’s total bullshit. Some years ago I did a deep dive on Christian morality as expressed in the five ‘gospels’, including Thomas, and found no clear moral message – again because context is everything, so that general remarks like ‘blessed are the peace-makers’, or indeed the cheese-makers, are essentially meaningless. Bonobos are pretty peaceful, but they’ll fight when they have to, to keep the greater peace. It’s a pretty good general rule, but the particular action and its extent depends on context.
Another example of context-free ethics that I’ve heard being extolled is the Ten Commandments, or at least those that still make sense in the modern world – don’t kill, don’t steal, don’t lie, don’t covet (note the negativity), don’t commit adultery (makes no sense to bonobos, and why and when did human apes start marrying?), and honour your parents (hmmm, shouldn’t parents, and any others, be given the respect they deserve? Not based on titles or positions, but on observed behaviour and effects? Automatic honouring, or respect, strikes me as a bad, even dangerous idea. Political leaders often benefit from this automatic, fawning respect, especially in non-democratic countries, where those leaders are allowed to hang around for a long time, like an ever more fetid odour).
None of these commandments should be considered as absolutes, which is why the nuance of laws based on the complexity of civil society is far superior, and that nuance is displayed in rather more earthly laws of the time, such as those of Solon in Athens. And another near contemporary, Cyrus of Persia, renowned for having emancipated the Jews of Babylon, had rather more humane laws (or really just policies, and possibly short-term) written on a cylinder uncovered more than 2000 years later, and celebrated by some (mostly Persian nationals) as the first versions of human rights.
Laws change, as they should, as we learn more about human flourishing, and that such flourishing depends on a broader, more vital flourishing of that narrow band of life that covers the surface, and a tiny sub-surface, of our planet. From whence we emerged. Only recently, rather shockingly, has the so-called developed world caught up with bonobos in their understanding and acceptance of homosexual behaviour – and that acceptance is very far from universal. Perhaps such intolerance has sprung from the old idea that ‘the world must be peopled’, but these days we’re well aware that it has been peopled enough. Nowadays we don’t want so much to have children to carry on for us, but to carry on ourselves, hale and hearty for 200 years or so. But that’s another story.
References
Yuval Noah Harari, Homo Deus, 2016
https://en.wikipedia.org/wiki/Ten_Commandments
https://www.britannica.com/topic/Solons-laws
https://en.wikipedia.org/wiki/Cyrus_Cylinder
Droning on
This may be fact or fiction: a US drone, purposed for surveillance, and who knows what else, is flying in or near Iranian air-space, and is shot down. Iran is naturally the major suspect. Applying the shoe-on-the-other-foot test, if an Iranian drone, for whatever purpose, was flying in or near US air-space, would the US shoot it down? My vague guess is – absolutely, 100%. The USA and Iran are currently sworn enemies, for whatever reason. So this kind of drone behaviour would naturally be seen as a provocation and a threat. And just a bit rude.
This surely isn’t rocket science, it’s more like drone ethics. Or am I missing something here?
On Massimo Pigliucci on scientism 2: brains r us
In his Point of Inquiry interview, Pigliucci mentions Sam Harris’s book The Moral Landscape a couple of times. Harris seeks to make the argument, in that book, that we can establish, sometime in the future, a science of morality. That is, we can be factual about the good life and its opposite, and we can be scientific about the pathways, though there might be many, that lead towards the good life and away from the bad life. I’m in broad agreement about this, though for pragmatic reasons I would probably prefer the term ‘objective’ to ‘scientific’. Just because it doesn’t frighten the horses so much. As mentioned in my previous post, I don’t want to get hung up on terminology. Science obviously requires objectivity, but it doesn’t seem clear to everyone that morality requires objectivity too. I think that it does (as did, I presume, the authors of the Universal Declaration of Human Rights), and I think Harris argues cogently that it does, based on our well-being as a social species. But Pigliucci says this about Harris’s project:
When Sam Harris wrote his famous book The Moral Landscape, the subtitle was ‘How science can solve moral questions’ – something like that. Well that’s a startling question if you think about it because – holy crap! So I would assume that a typical reader would buy that book and imagine that now he’s going to get answers to moral questions such as whether abortion is permissible and in what circumstances, or the death penalty or something… And get them from say physics or chemistry, maybe neuroscience, since Harris has a degree in neuroscience..
Pigliucci makes some strange assumptions about the ‘typical reader’ here. Maybe I’m a long way from being a ‘typical reader’ (don’t we all want to think that?) but, to me the subtitle (which is actually ‘How science can determine human values’) suggests, again, methodology. By what methods, or by what means, can human value – that’s to say what is most valuable to human well-being – be determined. I would certainly not have expected, reading the actual sub-title, and considering the main title of the book, answers to specific moral questions. And I certainly wouldn’t expect answers to those questions to come from physics or chemistry. Pigliucci just mentions those disciplines to make Harris’s views seem more outrageous. That’s not good faith arguing. Neuroscience, however, is closer to the mark. Our brains r us, and if we want to know why a particular mammal behaves ‘badly’, or with puzzling altruism, studying the animal’s brain might be one among many places to start. And yet Pigliucci makes this statement later on re ‘scientistic’ scientists
It seems to me that the fundamental springboard for all this is a combination of hubris, the conviction that what they do is the most important thing – in the case of Sam Harris for instance, it turns out at the end of the book [The Moral Landscape] it’s not just science that gives you the answers, it’s neuroscience that gives you the answers. Well, surprise surprise, he’s a neuroscientist.
This just seems silly to me. Morality is about our thoughts and actions, which start with brain processes. Our cultural practices affect our neural processes from our birth, and even before our conception, given the cultural attitudes and behaviours of our future parents. It’s very likely that Harris completed his PhD in cognitive neuroscience because of his interest in human behaviour and its ethical consequences (Harris is of course known for his critique of religion, but there seems no doubt that his greatest concerns about religious belief are at base concerns about ethics). Yet according to Pigliucci, had Harris been a physicist he would have written a book on morality in terms of electromagnetic waves or quantum electrodynamics. And of course Pigliucci doesn’t examine Harris’s reasoning as to why he thinks science, and most particularly neuroscience and related disciplines, can determine human values. He appears to simply dismiss the whole project as hubristic and wrong-headed.
I know that I’m being a little harsh in critiquing Pigliucci based on a 20-minute interview, but there doesn’t seem any attempt, at least here, to explain why certain topics are or should be off-limits to science, except to infer that it’s obvious. Does he feel, for example, that religious belief should be off-limits to scientific analysis? If so, what do reflective non-religious people do with their puzzlement and wonder about such beliefs? And if it’s worth trying to get to the bottom of what cultural and psychological conditions bring about the neurological networking that disposes people to believe in a loving or vengeful omnipotent creator-being, it’s also worth trying to get to the bottom of other mind-sets that dispose people to behave in ways productive or counter-productive to their well-being. And the reason we’re interested isn’t just curiosity, for the point isn’t just to understand our human world, but to improve it.
Finally Pigliucci seems to confuse a lack of interest, among such people in his orbit as Neil deGrasse Tyson and Lawrence Krauss, in philosophy, especially as it pertains to science, with scientism. They’re surely two different things. It isn’t ‘scientism’ for a scientist to eschew a particular branch of philosophy any more than it is for her to eschew a different field of science from her own, though it might seem sometimes a bit narrow-minded. Of course, as a non-scientist and self-professed dilettante I’m drawn to those with a wide range of scientific and other interests, but I certainly recognise the difficulty of getting your head around quantum mechanical, legal, neurological, biochemical and other terminology (I don’t like the word ‘jargon’), when your own ‘rabbit hole’ is so fascinating and enjoyably time-consuming.
There are, of course, examples of scientists claiming too much for the explanatory power of their own disciplines, and that’s always something to watch for, but overall I think the ‘scientism’ claim is more abused than otherwise – ‘weaponised’ is the trendy term for it. And I think Pigliucci needs to be a little more skeptical of his own views about the limits of science.
situation USA 1: Billy Barr’s memo, etc
Jacinta: So we can’t get enough of the wacky world of US federal politics, maybe from a schadenfreudish perspective, since we’re not Americans and have no intention of setting foot in that mad bad sad world…
Canto: Fully of lovely people I should add. Very diverse.
Jacinta: Very, let’s leave it at that. But we’re fascinated that Trump is still trumpeting, and that the nation’s better half, actually more than half, has still not found a way to rid themselves of him. I’m very reluctant to attribute any smarts to Trump, because criminal types, in spite of many movie depictions, are rarely smart enough to avoid getting caught. Yet Trump is still at large. He’s obviously done many things right, re self-preservation, and even self-aggrandisement.
Canto: We think of criminals as dumb because they’ve been caught. That’s why we call them criminals.
Jacinta: Good point. Anyway, the slow train crash that’s US federal politics today may not be the Trump crash. He may well walk away from the wreck unscathed. The number of final scenarios from here seems virtually infinite.
Canto: So let’s jump right in. The Mueller team has produced a report, redacted to the public, but mostly available (with almost entirely unredacted summaries of each of the two volumes, on conspiracy and obstruction respectively), which we have read and which we’ve found to be extremely critical of the administration and Trump himself. We’ll be quoting from the report throughout this fun, multi-post analysis.
Jacinta: But first we want to have a look at the role being played by US Attorney-General William Barr, who’s currently standing between the Mueller Report and its reception and treatment, by Congress, by the US justice system, and by the American public.
Canto: Barr hasn’t been the A-G for long, having taken office on Valentine’s Day of 2019.
Jacinta: A loving day for Billy and Donny. Some background to the appointment. Trump nominated Barr for the position on December 7 2018, a month after the resignation of the previous A-G, Jeff Sessions. Trump, as example F of the Mueller Report’s many examples of possible or probable obstruction of justice relates, had been trying to get Sessions to either ‘unrecuse’ himself (a legal nonsense, according to many) from overseeing the Mueller Report, or to resign, throughout Sessions’ tenure in the position. Barr, who held the position of A-G back in the early nineties, was clearly aware of Trump’s frustration with Sessions and his desire for an A-G who would protect him, support him, be on his team, etc, and had sent, unsolicited, a 19-page memo, available online, which is well worth reading. You don’t have to be a lawyer to recognise the many flaws in Barr’s arguments, you simply need a good sense of logic, decency and fairness.
Barr’s memo begins badly, with the title – Re: Mueller’s ‘obstruction’ theory. The scare quotes are meant to imply that obstruction isn’t really a thing in this case, and possibly for Presidents in general. But the most telling word is ‘theory’, because, as we have seen from the report itself, and no doubt this is a feature of Mueller’s legal career, the Special Counsel doesn’t theorise much, he relies on case law and precedent, which he cites at enormous length, to hammer home his findings.
Canto: Yes, just reading the memo, the word ‘theory’ comes up in the second and third paras. I also note the use of scary words like ‘demand’, ‘threat’, ‘interrogation’ and ‘coerce his submission’, all used in reference to Mueller’s behaviour towards Trump, all piled up in the first couple of paras. It’s no wonder that some have surmised that this memo was intended for an audience of one – especially if that person hasn’t the attention span to read more than a page a month.
Jacinta: Well, Barr quickly moves to legalese, using terms like actus rea (actually actus reus) and mens rea – which mean, respectively, a criminal act, and the intent, or knowledge of guilt. What he writes in these next paragraphs is unexceptionable – he agrees that the President is bound by standard obstruction laws, and that Nixon and Bill Clinton were rightly impeached on obstruction in the form of impairment of evidence. But then he goes on to write:
Enforcing these laws against the President in no way infringes on the President’s plenary [absolute] power over law enforcement because exercising this discretion – such as his complete authority to start or stop a law enforcement proceeding – does not involve commission of any of these inherently wrongful, subversive acts.
Barr Memorandum, June 2018, p2
Canto: Hmmm, I think I see what Barr is trying for here. But first, why isn’t it jaw-dropping to grant absolute power to one person over law enforcement? Only in America, surely. The land of the individual super-hero. But what I think Barr is arguing here is that Trump’s attempt to stop a proceeding – the Mueller enquiry – was perfectly legal due to his plenary power. So, even if Putin’s Russia interfered with the 2016 election ‘in sweeping and systematic fashion’, and did so to substantially advantage Trump, and the Trump campaign knew about and welcomed that interference, it was perfectly legitimate for Trump to shut down an investigation into that interference and the Trump campaign’s response. Based on that view, all attempts to get the enquiry stopped or to change its focus were legitimate. End of story.
Jacinta: You’re getting there. And fortunately we don’t have to rely only on our own brilliant minds to critique this memo, as many lawyers have already done so. But let’s continue to go it alone for a while, and then see what others have to say. Barr admits at the outset that he’s ‘in the dark’ about many facts, yet he’s happy to speculate, claiming that ‘as far as I know’, and ‘seemingly’, this is what Mueller is actually doing – for example ‘proposing an unprecedented expansion of obstruction laws’. Again, we’re not lawyers, but I note that Mueller cites precedent many times in his report. And he doesn’t include in his examples of possible/probable obstruction the multitudinous tweets and speeches in which Trump denigrates the Special Counsel’s investigation as a witch-hunt and the Russian interference as a hoax. In a broad sense, this appears to me to be witness tampering – using the bully pulpit in the manner of dictators of the past, repeating a lie over and over until it becomes true. The witnesses here being the American public. But back to the memo. Barr homes in on USC 1512, subsection c2, which Mueller does indeed use in his report, but c2 seems to me clear-cut about obstruction, and covers many acts committed by Trump which Barr glosses over or doesn’t mention. In fact Barr seems to think that the only possibly obstructive act committed by Trump was the firing of Comey. Here is subsection c:
(c) Whoever corruptly (1) alters, destroys, mutilates or conceals a record, document or other object, or attempts to do so, with the attempt to impair the object’s integrity, or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.
Further, Barr states that, as far as he knows, Mueller isn’t accusing Trump of evidence tampering. But how far does Barr know? This is an assumption, and on the basis of that assumption he accuses Mueller of an over-reach which in any case makes no sense on the basis of a straightforward reading of c2.
Canto: Well according to Barr, c2 shouldn’t be read as standing alone, it should somehow be read in the context of 1512 c as a whole. To me, though, it clearly reads as a necessary addition to c1, which doesn’t deal adequately with all the nefarious ways and means of obstruction. Barr describes the use of c2 as allowing an ‘unbounded interpretation’ of obstruction. But the law surely requires a definition of obstruction that captures the myriad ways that obstruction can occur – myriad but at the same time obvious to any well-reasoning witness.
Jacinta: Interesting – Mueller and Barr are friends of at least 30 years’ standing, which is a worry, and this makes me imagine, and perhaps it isn’t just imagination, that Mueller is writing up his report partly in refutation of Barr’s claims. That’s based on reading just three pages of Barr, but we’re often more miffed by the criticism of friends, and blokes are such competitive bulls.
Canto: Yes but you could be onto something there. Mueller dwells at length on 1512 c2 as the basis for his obstruction analysis, as well as on the three elements that must be fulfilled to show that obstruction has occurred – obstructive act, intent, and connection to an official proceeding – and towards the end of the report (Vol 2 III. Legal defences to the application of obstruction-of-justice statutes to the President), Mueller directly addresses the issue of 1512 c2, not in response to Barr, but in response to Trump’s personal counsel. These remarks summarise the Special Counsel’s position:
In analyzing counsel ‘s statutory arguments, we concluded that the President’s proposed interpretation of Section 1512(c)(2) is contrary to the litigating position of the Department of Justice and is not supported by principles of statutory construction.
Mueller Report Vol 2, p159
Jacinta: Yes I like the report’s succinctness, with the above summary being followed by a great deal of case law, constitutional argument and so forth. Of course we’re not conversant with all the precedents and the possible constitutional nuances, but we note that these arguments – which may well be directed at rebutting Barr – are detailed and cool, lacking the sense of outrage we find in Barr, regarding over-reach and unprecedented interpretations. And they do seem to confirm our amateur understanding that 1512 c2 is intended to cover acts other than the physical destruction of evidence – and those other acts would be an open-ended set.
Canto: Yes, Barr quibbles a lot on the term ‘otherwise’ in 1512 c2, and Mueller responds to that.
Jacinta: But if we move out from the detailed law into the world of basic ethics, we should be able to recognise that Barr’s position is nothing short of appalling. He tries to argue – and he did so in the senate hearing – that it’s not obstruction if the President ‘thinks’ that the proceeding is corrupt, and so wants to shut it down. So, according to Barr, Trump’s endless claims of a witch-hunt are sufficient justification for him to dismiss the Special Counsel! That’s laughable. I mean Trump would say that, wouldn’t he? Not that this is what Trump thinks. He knows full well that he’s a career criminal. It’s what every career criminal would say when brought to justice. Duh.
another look at free will, with thanks to Robert Sapolsky
Having recently had a brief conversation about free will, I’ve decided to look at the matter again. Fact is, it’s been playing on my mind. I know this is a very old chestnut in philosophy, renewed somewhat by neurologists recently, and I know that far more informed minds than mine have devoted oodles of time and energy to it, but my conversation was with someone with no philosophical or neurological background who simply found the idea of our having no free will, no autonomy, no ‘say’ whatever in our lives, frankly ludicrous. Free will, after all, was what made our lives worth living. It gives us our dignity, our self-respect, our pride in our achievements, our sense of shame or disappointment at having made bad or unworthy decisions. To deny us our free will would deny us…. far far too much.
My previous piece on the matter might be worth a look (having just reread it, it’s not bad), but it seems to me the conundrum can be made clear by thinking in two intuitively obvious but entirely contradictory ways. First, of course we have free will, which we demonstrate with a thousand voluntary decisions made every day – what to wear, what to eat, what to watch, what to read, whether to disagree or hold our tongue, whether to turn right or left in our daily walk, etc etc. Second, of course we don’t have free will – student A can’t learn English as quickly and effectively as student B, no matter how well you teach her; this student has a natural ability to excel at every sport, that one is eternally clumsy and uncoordinated; this girl is shy and withdrawn, that one’s a noisy show-off, etc etc.
The first way of thinking comes largely from self-observation, the second comes largely from observing others (if only others were as free to be like us as we are). And it seems to me that most relationship breakdowns come from 1) not allowing the other to be ‘free’ to be themselves, or 2) not recognising the other’s lack of freedom to change. Take your pick.
So I’ve just read Robert Sapolsky’s take on free will in his book Behave, and it strengthens me in my ‘free will is a myth’ conviction. Sapolsky somewhat mocks the free will advocates with the notion of an uncaused homunculus inside the brain that does the deciding with more or less good sense. The point is that ‘compatibilism’ can’t possibly make sense. How do you sensibly define ‘free will’ within a determinist framework? Is this compatibilism just a product of the eternal complexity of the human brain? We can’t tease out the chain of causal events, therefore free will? So if at some future date we were able to tease out those connections, free will would evaporate? As Sapolsky points out, we are much further along at understanding the parts of the prefrontal cortex and the neuronal pathways into and out of it, and research increases exponentially. Far enough along to realise how extraordinarily far we have to go.
One way of thinking of the absurdity of the self-deciding self is to wonder when this decider evolved. Is it in dogs? Is it in mosquitos? The probable response would be that dogs have a partial or diminished free will, mosquitos much less so, if at all. As if free will was an epiphenomen of complexity. But complexity is just complexity, there seems no point in adding free will to it.
But perhaps we should take a look at the best arguments we can find for compatibilism or any other position that advocates free will. Joachim Krueger presents five arguments on the Psychology Today website, though he’s not convinced by any of them. The second argument relates to consciousness (a fuzzy concept avoided by most neurologists I’ve read) and volition, a tricky concept that Krueger defines as ‘will’ but not free will. Yes, there are decisions we make, which we may weigh up in our minds, to take an overseas holiday or spend a day at the beach, and they are entirely voluntary, not externally coerced – at least to our minds. However, that doesn’t make them free, outside the causal chain. But presumably compatibilists will agree – they are wedded to determinism after all. So they must have to define freedom in a different way. I’ve yet to find any definition that works for the compatibilist.
There’s also a whiff of desperation in trying to connect free will with quantum indeterminacy, as some have done. Having read Life at the edge, by Jim Al-Khalili and Johnjoe McFadden, which examines the possibilities of quantum effects at the biological level, I’m certainly open to the science on this, but I can’t see how it would apply at the macro level of human decision-making. And this macro level is generally far more ‘unconscious’ than we have previously believed, which is another way of saying that, with the growth of neurology (and my previous mention of exponential growth in this field is no exaggeration), the mapping of neurological activity, the research into neurotransmission and general brain chemistry, the concept of ‘consciousness’ has largely been ignored, perhaps because it resembles too much the homunculus that Sapolsky mocks.
As Sapolsky quite urgently points out, this question of free will and individual responsibility is far from being the fun and almost frolicsome philosophical conundrum that some have seemed to suggest. It has major implications for the law, and for crime and punishment. For example, there are legal discussions in the USA, one of the few ‘civilised’ nations that still execute people, as to the IQ level above which you’re smart enough to be executed, and how that IQ is to be measured. This legal and semi-neurological issue affects a significant percentage of those on death row. A significant percentage of the same people have been shown to have damage to the prefrontal cortex. How much damage? How did this affect the commission of the crime? Neurologists may not be able to answer this question today, but future neurologists might.
So, for me, the central issue in the free will debate is the term ‘free’. Let’s look at how Marvin Edwards describes it in his blog post ‘Free will skepticism: an incoherent notion’. I’ve had a bit of a to-and-fro with Marvin – check out the comments section on my previous post on the topic, referenced below. His definition is very basic. For a will, or perhaps I should say a decision, to be free it has to be void of ‘undue influences’. That’s it. And yet he’s an out and out determinist, agreeing that if we could account for all the ‘influences’, or causal operants, affecting a person’s decision, we could perfectly predict that decision in advance. So it is obvious to Marvin that free will and determinism are perfectly compatible.
That’s it, I say again. That’s the entire substance of the argument. It all hangs on this idea of ‘undue influence’, an idea apparently taken from standard philosophical definitions of free will. Presumably a ‘due influence’ is one that comes from ‘the self’ and so is ‘free’. But this is an incoherent notion, to borrow Marvin’s phrase. Again it runs up against Sapolsky’s homunculus, an uncaused decider living inside the brain, aka ‘the self’. Here’s what Sapolsky has to say about the kind of compatibilism Marvin is advocating for, which he (Sapolsky) calls ‘mitigated free will’, a term taken from his colleague Joshua Greene. It’s a long quote, but well worth transcribing, as it captures my own skepticism as exactly as anything I’ve read:
Here’s how I’ve always pictured mitigated free will:
There’s the brain – neurons, synapses, neurotransmitters, receptors, brain-specific transcription factors, epigenetic effects, gene transpositions during neurogenesis. Aspects of brain function can be influenced by someone’s prenatal environment, genes, and hormones, whether their parents were authoritarian or their culture egalitarian, whether they witnessed violence in childhood, when they had breakfast. It’s the whole shebang, all of this book.
And then, separate from that, in a concrete bunker tucked away in the brain, sits a little man (or woman, or agendered individual), a homunculus at a control panel. The homunculus is made of a mixture of nanochips, old vacuum tubes, crinkly ancient parchment, stalactites of your mother’s admonishing voice, streaks of brimstone, rivets made out of gumption. In other words, not squishy biological brain yuck.
And the homunculus sits there controlling behaviour. There are some things outside its purview – seizures blow the homunculus’s fuses, requiring it to reboot the system and check for damaged files. Same with alcohol, Alzheimer’s disease, a severed spinal cord, hypoglycaemic shock.
There are domains where the homunculus and that biology stuff have worked out a détente – for example, biology is usually automatically regulating your respiration, unless you must take a deep breath before singing an aria, in which case the homunculus briefly overrides the automatic pilot.
But other than that, the homunculus makes decisions. Sure, it takes careful note of all the inputs and information from the brain, checks your hormone levels, skims the neurobiology journals, takes it all under advisement, and then, after reflecting and deliberating, decides what you do. A homunculus in your brain, but not of it, operating independently of the material rules of the universe that constitute modern science.
This captures perfectly, to me, the dilemma of those sorts of compatibilists who insist on determinism but. They seem more than reluctant to recognise the implications of that determinist commitment. It’s an amusing description – I love the bit about the aria – But it seems to me just right. As to the implications for our cherished sense of freedom, we can at least reflect that it has ever been thus, and it hasn’t stopped us thriving in our selfish, selfless ways. But as to the implications for those of us less fortunate in the forces that have moved us since childhood and before, that’s another story.
References
https://ussromantics.com/2018/05/15/is-free-will-a-thing-apparently-not/
R Sapolsky, Behave: the biology of humans at our best and worst, Bodley Head 2017. Note especially Chapter 16, ‘Biology, the criminal justice system and free will’.
https://plato.stanford.edu/entries/compatibilism/#FreWil
https://www.psychologytoday.com/au/blog/one-among-many/201803/five-arguments-free-will
https://www.theatlantic.com/notes/2016/06/free-will-exists-and-is-measurable/486551/
Trump: the slo-mo train wreck is far from over – it’s likely to get much worse
some semi-reluctant future reading – or maybe I’ll just watch the video
This morning I heard an American pundit saying Trump has got to change his approach and become more co-operative with investigating authorities, because his strategy isn’t working. Everybody is offering Trump free advice but he’s unlikely to take it because he’s Trump. People don’t change very much, they certainly don’t become completely different people, certainly not after the age of seventy. Trump has spent his life among crooked rich people, he was brought up by crooked rich people, he only admires crooked rich people, and he will die as crooked as he has lived. That’s his fate.
What pundits should really be working on, IMHO, is limiting his power and curbing his destructive tendencies. Now that the cognoscenti are coming to realise that better vetting processes should have applied to candidates for the overly-powerful position of POTUS, they should be doing their utmost to put obstacles in the way of that power (followed by root and branch reform of the entire political system once Trump is dumped). For example, putting real pressure on White House staffers, many of whom should know by now that the writing’s on the wall, to resign en masse. Or even just to suggest that they do so? Rats tend to desert a sinking ship, but perhaps not if they don’t sense any land in the offing, a safe haven to run to. So maybe it would be the most ethical thing to do, now, to entice Trump’s enablers to abandon him, not entirely without penalty, but with less penalty than if they stick with him to the end. A bit like offering limited immunity. And in the same way, the media should be onto those in Congress who are enabling Trump, or are not being sufficiently vocal in their opposition, or their position in general, to speak their minds more clearly. It’s time for more media hounding, for the sake of the beleaguered nation. Two of Trump’s most vocal supporters in Congress are now being prosecuted as swamp creatures, not surprisingly. More needs to be made of this.
I’m not talking here about ‘weaponising’ the media, or being partisan. This is clearly about corruption and the law. My own early recognition of Trump as a boorish, tasteless, noisome, proudly ignorant, self-serving buffoon had little to do with politics. I’ve learned over this year that he was a ‘lifelong Democrat’ until a few years ago. I didn’t believe it any more than I believe he’s a Republican now. He knows as much about politics, history and international affairs as he does about science. But I’ve also learned more about his inherent dishonesty and crookedness. The responsible media generally recognise this, and they should play, more openly, a heroic role in bringing him down. It wouldn’t be a partisan role, it would be about nation-building, or nation-repairing.
It’s important here not to be partisan, and that’s why it’s essential to focus on the law rather than on politics. Certainly there needs to be a political backlash against Trump, and against his Republican enablers, but I’ve already expressed my skepticism of impeachment, a political process, as a means of dismissing political leaders. All citizens should be subject to the law, regardless of position or profession. This is not to say the mid-term elections aren’t important, as the country needs more liberals and democrats in positions of authority to counter Trump’s fascistic or mafioso-style approach to government. However, the mid-term elections are over two months away, plenty of time for more damage to be done to the country’s political institutions by an increasingly desperate ‘Commander-in Chief’.
The preposterous and disgustingly juvenile, and typically American, idea that their POTUS may be above prosecution simply because he’s too important and vital to the workings of the State, needs to be punctured beyond repair. This seems to me a high-priority issue. Of course, the fact that the USA has given its POTUS too much power will make things difficult in the immediate post-Trump period, but this is a tough lesson that needs to be learned. It seems a constitutional crisis may be just what’s needed to get the nation to wake from its jingoistic slumber and start working on a better, more collegial and distributed power system than the current hero-worshipping laughing-stock it has created for itself.
So let’s go to the issue of indictment, and later we’ll go to the aftermath, which will presumably be a Pence Presidency – not a pleasant prospect, from what I’ve heard.
Unfortunately the indictment of a sitting President is regarded as a constitutional matter – unlike the indictment of any other citizen, presumably. This is a situation that should be rectified. Section 3 of Article 1 of the US Constitution puts it thus:
“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust,or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Note the unclear wording here. It talks about impeachment first, which to my mind, is irrelevant. It’s the last part that is relevant, though it gets entangled with impeachment – ‘The party convicted shall nevertheless be liable to and subject to indictment’, etc. But impeachment is not about being convicted. The law convicts, surely. The Constitution was signed into law in 1787, and is a source of understandable pride to the American people, but it’s hardly to be expected that it would make everything clear and precise for the next two hundred-odd years. It looks as though indictment should follow impeachment, which is, it seems, misrepresented as ‘convicted’, but it cannot surely be the case that if the President commits what constitutes a ‘high crime or misdemeanour’ (and I really hope that term is clear in US law) he has to be impeached before being charged. That, to me, would be outrageous. It’s very obviously the wrong way round – though of course, you’d have to be sure that the Justice Department had a very sound case before proceeding – perhaps with a speaking indictment (I really like them things). And then, of course, if conviction occurs, impeachment wouldn’t be an issue. It would just be a matter of a change of residence.
It’s astounding, and frankly appalling, that some soi-disant constitutional lawyers really do argue for immunity (while in office) due to the heavy duties of the Presidency (duties that Trump largely avoids), while other experts argue that Presidents really do have the power to pardon themselves. It’s yet another indication that Yanks, even high-powered legal eagle ones, are in thrall to the wankeries of their worst movies, featuring the vigilante superhero out to save the State from itself, with collateral damage just being part of the thrill.
Considering such jejune but baked-in attitudes about their ‘commander-in chief’, it’s unlikely that Americans will learn much from the current debacle. Still no proper vetting at the outset, still no reduction of pardoning and other powers, still no integration of the Presidency with Congress, still insufficient checks and balances, still the same childishly carnivalesque two-horse races every four years, still the same embarrassing, unreflective jingoism. And still, I find it all quite fascinating. I’m just glad I’m not actually there.
So what will happen by years’ end? Presumably impeachment proceedings, depending on the numbers in both houses – I haven’t yet read up on impeachment, what it requires and entails, and I’ll be doing that soon. But presumably impeachment isn’t easily enforceable, and Trump will ignore it and rely on his base to protect him. That’s when things will get really interesting.
Trump’s downfall – like watching a slow-mo train wreck
the demise of Richard III
So after something of a lull (but not in the offices of the DoJ’s Mueller and his team) everything’s hotting up in the Russia investigation, and my prediction seems now a dead cert. The indictment of the thirteen was a fascinating read, and we’ve yet to find out if any Americans close to Trump were wittingly involved in this trolling affair. There’s likely more to come from that direction, but the most recent guilty plea and co-operation deal from former White House aide Rick Gates lands a decisive blow, and we still haven’t heard from Flynn – though there may be nothing much to hear.
The Mueller team’s strategy in this investigation, or perhaps I should say the pundits’ attempts to comprehend the strategy, makes for irresistibly compelling viewing and listening, especially as we’re now getting reading material from the team, and very deliberately so, as the American public, or that part of it that matters, need to be made aware of the real and serious nature of the Russian threat and the relationship between the Trump campaign and presidency, and Russian oligarchs, government officials and supporters, such as former Ukrainian dictator Viktor Yanukovych. I should mention the most compelling of the pundits, for me, who include Rachel Maddow, Laurence O’Donnell and Ari Melber for MSNBC, and Anderson Cooper, Don Lemon and Chris Cuomo for CNN and their numerous expert guests.
What has been tantalisingly suggested in the most recent indictments of Manafort, Gates and the Dutch lawyer Alex van der Zwaan is a possible/probable connection between 1: Manafort’s financial problems and the many swindles he engaged in after the deposing of Yanukovych in 2014 and the sudden reduction of those problems when he became Trump’s campaign manager in 2016, and 2: the financial connections between Trump and members of his family and Russian oligarchs. One key to that reduction seems to be the millions of dollars of loans received from a Chicago bank headed by a Trump supporter, who apparently was hoping to be made Secretary of the Army in return. Didn’t happen of course.
And the crises keep on coming in Trumpland. I’ve not written here for a few days, and the latest, just in, is that Kushner has been effectively demoted due to his lack of a security clearance, which will mean a battle between him and John Kelly, which will involve Trump, but more importantly it will focus attention on just why Kushner is deemed a security risk. And of course the clearance issue involves a scandalously large number of White House staff besides Kushner. Another shemozzle. There was apparently a conversation between White House counsel Don McGann and Deputy A-G Rosenstein (initiated by the White House I’ll bet) a couple of weeks ago about Kushner’s clearance. I’d love to have heard its substance. It’ll be interesting to see how Trump handles this particular debacle. He presumably won’t fire Kelly, because that’ll do nothing for the clearance situation – it’s people like Mueller and Rosenstein he wants to fire. My guess is he’ll try to continue with business as usual, defying Kelly’s order that Kushner not be allowed access to top secret documents. The media need to be watchful on this.
But getting back to Manafort-Gates, this appears to be the main game re Trump’s downfall. According to all the legal analysts, the case against Manafort is more than extremely strong, and his only hope of getting a lighter sentence is to plead guilty and co-operate with the Mueller investigation – though perhaps he’d prefer to live his life out in jail than leave himself open to Russian hit-men. He’s showing no sign of cracking as yet, but I can’t imagine it’s due to loyalty to Trump. Meanwhile, reports are that Trump is very worried about Manafort spilling the beans. Again it’s all about following the money.
For the rest of this piece, though, I want to focus on whether Trump will be kicked out, how will he be kicked out, the obstacles and a little bit about the aftermath. First, let me focus on an article in the New Republic, by Matt Ford, published in late January, entitled ‘Trump is Here to Stay’. It’s not a pro-Trump piece, but it questions the likelihood of indicting a sitting president. This is a key question, because I’ve never taken much interest in the political process known as impeachment, which is a more or less uniquely American thing. To me, it should be all about the law – laws being similar (or more similar than different) in all advanced western nations. And no single person, regardless of station, should be above the law. So I would be expecting that Trump would be removed by the Department of Justice, not by Congress, but there’s no precedent for this. But there’s no precedent for Trump either. I wouldn’t want Trump to be removed by a political process, I’d want him to be removed for breaking the law, or laws.
So what laws would he have broken? Obstruction of justice and perjury are two obvious ones, and others would have to do with his finances, and how they tie him closely to Russian oligarchs and their extreme anti-democratic ambitions and their interference in the recent elections – for which one Russian oligarch has already been indicted. Of course my disagreement with Ford and his article is driven by optimism and an unwonted love of fireworks, but I think that, though he accepts Mueller’s thoroughness, he underestimates it. He might also think differently now that these Russians have been indicted, and Gates has pleaded guilty. The Mueller team have come out in public a lot more in the past month, and more is surely expected, nobody can really predict what will come out next. Indictments against, say, Kushner for his financial dealings may change the picture, especially if they’re comprehensive. And Manafort may yet change his tune under pressure. And remember that the Mueller team can look at any wrong-doings that turn up in the course of their investigations, which include the dodgy profits Trump is certainly deriving from simply being the President. I think Ford also underestimates the groundswell of resistance, which may lead to unprecedented national action throughout 2018. The mood against Trump may turn more and more ugly, and if a Mueller indictment comes on top of that, we may witness a true constitutional crisis. For example, I don’t see Pence as being acceptable to the American public, so we’ll be in uncharted territory. Americans might at last see that their political system needs some serious revision – too many personal appointees of America’s CEO and not enough elected officials running things – not enough democracy, in effect.
towards the ousting of Trump and his confederacy of dunces
Before all this shite came up I was writing something completely different. In order to alleviate myself of my own existence for a while, I should get back to it, and update it.
We’re living in interesting times, and I can’t help but put my weird and less than minuscule shoulder to the wheel in trying to bring down Trump and his cowboy cronies. I’ve been trying to ignore this stuff but it’s just getting too exciting. There’s been the Paradise Papers, the Facebook revelations, sex scandals and of course the Mueller inquiry. The pundits of the cable news network MSNBC are almost peeing their pants on camera as they gleefully rake through the revelations of Russian links to the Trump administration. It’s a great time for the media, with an obvious charlatan in the White House, whose buffoonery provides endless talking points, while ordinary folks and elephants get shafted big-time.
I’m not always a huge US watcher, and I’m of course pretty ignorant on the details, but it’s been a circus that’s been difficult to ignore lately, and the pickings are getting richer and richer. I’m garbling up metaphors here, so let me calm down and look at the now distinct possibility of removing Trump from office. First, the Mueller inquiry. NBC news is reporting, with apparently impeccable sources, that Trump’s former, albeit brief, national security adviser Michael Flynn is close to being charged with money laundering and perjury by the Mueller team. Of course, Trump’s former campaign manager Paul Manafort and his aide Rick Gates have already been indicted and it looks like a junior but big-talking foreign policy adviser to the administration, George Papadopoulos, is assisting the team with their inquiries after pleading guilty to perjury about Russian connections. I’ve been listening to a number of legal and political experts being interviewed, mostly on NBC, and it looks as though the case against Manafort, the biggest fish, is extremely strong, and it seems like a matter of days before Flynn is indicted, but what would I know? On top of that, there’s Jefferson Sessions, the US Attorney-General and apparently an arch-racist, who has perjured himself under oath, and others who are key figures in the Trump admission, including his son-in-law Jared Kushner.
It does seem as if Trump’s hold on power is crumbling, unless I’m falling prey to the manic glee of American liberal pundits. Certainly there are polls and election results that suggest maybe I’m not getting ahead of myself. There has just been an election victory for the Democrats in Virginia, and the (extremely unpopular) Republican governor of New Jersey, Chris Christie, has been swept out of office. The Virginia result in particular is being treated by some as a watershed event (where does that odd term come from?) but maybe not. Certainly though it’s bad for Trump, who heavily supported the Republican candidate (then threw him to the dogs when he lost). The apparently reliable Reuters/Ipsos poll measuring Trump’s approval/disapproval rating has him currently at about 36%, with 59% disapproval, figures which have remained more or less steady for the last two months. I don’t see a huge dip in the polls – his numbers have always been quite low, it seems, but unless they pick up he’s going to be very vulnerable, and may become more extreme under pressure. His lack of success in pushing his agenda, his gaffes, his tweets, the Russian mess and the inquiry, they’re all converging to ensure that he won’t be elected again, but what are the chances for those who want him out before the next election. Surely almost all hopes lie with the Mueller inquiry.
Robert Mueller was the Director of the FBI from 2001 to 2013, its longest serving director since the thuggish J Edgar Hoover. Appointed by George W Bush, he was given a two-year extension to his term by Barack Obama, and was eventually replaced by James Comey, who was controversially sacked by Trump earlier this year, a decision which may prove disastrous for the man with One of the Great Memories of All Time (a memory which may well be tested under oath soon, according to former US solicitor-general Ken Starr). It was Comey’s slightly controversial dismissal that led directly to the 2017 Special Counsel Inquiry headed by Mueller, since Comey alleged that Trump had essentially tried to obstruct justice by asking him to drop an FBI inquiry into Flynn and his connection with Russia. Mueller and his team’s brief is to investigate “any links and/or coordination between Russian government and individuals associated with the campaign of President Donald Trump, and any matters that arose or may arise directly from the investigation”, to quote from assistant Attorney-General Rod Rosenstein, who appointed Mueller in the position. That’s a pretty wide brief, it seems to me. Mueller has a fearsome reputation and he’s gathered together a team of 16 lawyers, some of them highly reputed, and if Flynn is indicted, which appears a near-certainty, things may well reach crisis-point for the administration.
So it all appears to be going along nicely, if painfully slowly for those who want Trump and his confederacy of dunces removed. The thing is, Mueller and his team will be thorough. They won’t go charging in and arresting people unless the evidence is clear, and even then they may try to use the guilty as hell to gain more information about other parties, in exchange for a degree of immunity. I’m sure I’m not the only one who would love to be a fly on the wall of Mueller’s Justice Department offices over the coming weeks.
Flynn seems to be a particularly revolting reptile. Apparently he tried to arrange a deal, which would have earned him oodles of money, to smuggle the moderate Turkish cleric Fethullah Gulen out of the USA to Turkey, where he would’ve faced certain death under the thuggish macho dictator Erdogan, who constantly accused Gulen of organising the failed coup against him. If this is true, and provable, hopefully Flynn will live inside a cell for a long time. But there’s also a possibility that Flynn discussed this plan with the morally cretinous Trump, who would undoubtedly have approved. If there’s evidence of such discussions, that would be fantastic for us all.
Flynn’s a weak link for many other reasons, it seems. According to the Washington Post, he lied to the FBI – a felony offence – about discussions with Russian ambassador Sergey Kislyak regarding sanctions imposed on Russia by the Obama administration due to its meddling in the US election. It was because of this dishonesty that he was sacked by Trump – with great reluctance. Flynn also seems to have been involved in a strange plan to build US-Russian nuclear power plants in the Middle East, about which, again, he has been less than honest. The Russians who were part of the deal are under US sanctions. Flynn has an obvious penchant for the anti-democratic Russian kleptocracy, something of a liability for a National Security Advisor.
And there are other members of the confederacy – Trump junior, Kushner and Sessions stand out, but there are so many others in the worst political administration the western world has ever seen – who are being targeted by the Mueller inquiry. The question really is – when will the circus be closed down? Every day’s delay, after all, brings damage. Morans are running the Department of Energy, the Department of Agriculture, the EPA and just about every other US department…
All of this calls into question the whole of the US political system, surely. It has often been called the least democratic system in the western world, though that tends to avoid the problem with democracy itself, the problem that uninformed people have the same voting rights as informed people. If you’re going to have a democracy of that kind, you really need to maximise the number of informed people. But another problem, and it’s as clear a problem in Australia as anywhere, is that ignorant, loud-mouthed people can run for political office, with far less vetting than is carried out in protecting our borders. In this respect I’m an unashamed elitist. But America’s presidential system is way too presidential. Australia’s political system, like Britain’s, is much more party-based, with responsibilities, and culpability, more equally shared among government leaders. And this, I think, is a much better, much less dangerous system. In the USA, people generally vote every four years for a person rather than a party and its policy set, and this has so many problems associated with it, it just isn’t funny. Trump, for example, isn’t a Republican, he’s ‘his own man’, a blundering, bullying, bullshitting, bragging, belly-aching buffoon, a man born into and gifted enormous wealth, a laughing-stock as a businessman, a patsy for Russian mafioso oligarchs, who has installed an assorted pile of know-nothings to important political, scientific and cultural posts in the most economically powerful in the world – though by no means a model country for fairness, security or opportunity. I can’t think of any other western country in which this could’ve happened. The checks and balances, but above all the political culture of those countries would never have allowed it.
The battle for justice part 2: the problem with nolle prosequi
A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. This basic criterion is the cornerstone of the uniform prosecution policy adopted in Australia.
from ‘The decision to prosecute’, in ‘Statement of prosecution policy and guidelines’, Director of Public Prosecutions, South Australia, October 2014
Continuing from last post, the case against me was dropped a short while after the arraignment, but not before the police made a visit to my home, the soi-disant scene of the crime. They’d never visited my home or made any contact with me since the arrest, many months before, but it seems the arraignment had spurred them, or forced them, into action.
This was something I’ve never really got. Like many of us I’ve watched my share of crime shows and whodunits. Typically, the arrest comes as the final scene, after weeks and months of painstaking sleuthing. Yet my arrest seemed to have come at the start (though I did have to wait for a while), before any questioning. And then, after the arraignment, the police suddenly showed up at the putative crime-scene to do their sleuthing at last.
I knew what they’d come for, too. Long before, my lawyer had told me some of the details of the boy’s claim. I had apparently raped him in the toilet, after which he’d gotten away and locked himself in the bedroom. I was able to tell the lawyer that none of the bedrooms in my house were lockable, so that part of his story was demonstrably false, so at long last they’d come to check. And then, almost the next day, I was told the case was over.
I don’t remember being sent any paperwork to that effect but I suppose I must have. I was just relieved it was all over, that sanity had prevailed, etc. But this year, more than 11 years on, I came to realise, thanks to a screening process by the DCSI (the South Australian government’s Department of Communities and Social Inclusion), that it wasn’t over, and that it would never be over. This was because of the little matter of ‘Nolle Prosequi’:
The entering of a nolle prosequi by the Director of Public Prosecutions means that he is not pursuing the prosecution at this stage. Theoretically he may pursue the prosecution at a later stage, but this rarely, if ever, happens. Normally the DPP does not give a reason for such a decision, but it is usually based on a problem with the evidence he has assembled. In the course of assembling it, or after it has been assembled in a book of evidence, a problem may arise with a witness or a crucial part of it, that would make it difficult to proceed. Difficulties of this nature usually undermine the whole basis for the trial. Even if new evidence is discovered, the problems with the old evidence remain. If a nolle prosequi is entered, and then registered by the court, the accused is discharged and free to go. He or she enjoys the presumption of innocence that all accused people enjoy until they are convicted of a crime beyond all reasonable doubt. (Carole Coulter, Irish Times, April 2006)
Nolle prosequi... is a legal term of art and a Latin legal phrase meaning “be unwilling to pursue”, a phrase amounting to “do not prosecute”. It is a phrase used in many common law criminal prosecution contexts to describe a prosecutor’s decision to voluntarily discontinue criminal charges either before trial or before a verdict is rendered. It contrasts with an involuntary dismissal. Legal effect [in the USA]: The entry of a nolle prosequi is not an acquittal, and the principle of double jeopardy therefore does not apply. The defendant may later be re-indicted on the same charge. Effect on future employment [in the USA] Federal agencies, especially the military, view nolle prosequi as an unfavorable judgement. This has the effect of requiring a waiver submission for service, or the outright denial of employment (WIKIPEDIA).
Nolle prosequi was the ‘finding’ in my case.
As indicated in the quotes above, nolle prosequi can be interpreted as anything from ‘presumed innocent’ to ‘still pretty suss’, and it seems any department, any arm of government, is at liberty to interpret it as they wish (and given the current environment, they’re more than likely to err on the side of the child/accuser). But here’s the kicker, as the yanks say. And it’s an extremely important and fundamental kicker for my argument. Once arrested (for sexual abuse or rape, say) nolle prosequi is essentially the best any accused can hope for!! This is the dirty little secret your lawyer is most unlikely to tell you about.
Let me explain. When you go and seek legal aid to defend yourself against a false charge [please, if only for hypothetical reasons, assume the accusation is false], it means you’ve already been arrested, and the DPP has already instituted proceedings against you. And once a prosecution is instituted, your lawyer will try to get it thrown out, i.e nolle prosequi. The other alternative is acquittal – but acquittal can only come after a full criminal trial. I quoted in my last post that an arraignment is the first stage of an 11-stage criminal trial in Australia. That should give an indication of just how humungous a criminal trial actually is – involving lawyers, witnesses and experts for both sides, the presentation of different types of evidence, examinations and cross-examinations, a jury presumably, and all in all a process that will tie up a courtroom for some time, with much expenditure of money and energy. So your lawyer is actually trying her best to make sure you don’t have your day in court. So nolle prosequi is the lawyer’s victory, but if organisations like DCSI interpret nolle prosequi as ‘still pretty suss’, that means you’re stuffed – for the rest of your life! If not longer.
Now, notice the statement from the DPP at the top of this post. It sounds impressive – they won’t go ahead with a case unless they have a reasonable prospect of succeeding (and this would surely mean having sufficient, or at least some, evidence). Now, let me tell you that during the whole 13 or 14 months that my case was ongoing, I was in a state of sleepless agony, and occasional rage, with the mantra ‘no evidence, no evidence’ echoing in my head, and on the day after I heard that my case was dismissed, I took to my computer and typed a terse paragraph to the DPP (yes I’m sometimes capable of terseness), accusing them of incompetence in my case, not only for seeming to pass the buck from lawyer to lawyer, but for going against their prosecution policy as stated on their website, which I quoted back to them (the policy was, I believe, worded a little differently in 2006 from the 2014 version quoted above, and I think then it actually mentioned evidence). Not surprisingly they didn’t respond, but I met my lawyer, purely by accident, a few months later and he told me my letter had caused quite a stir – which thrilled me as throughout the case I always felt like Mr Nobody or The Invisible Man. I asked him why, with no evidence at all, the case had lasted as long as it did. His response was that I was one of the lucky ones. Many people in his experience had gone through this process and been destroyed, based on no more evidence than they had against me. No more than someone’s story.
But I’ve had another insight since taking aim at the DPP all those years ago. Yes, I still think the DPP contravened their own policy by taking on my case, but I was forgetting, in my utmost naivety, the role of the police. Yes, the DPP say they won’t prosecute a case unless they have a reasonable chance of success, but when the police arrest a person and charge him with rape, the DPP obviously don’t know a thing about it. They only find out later, from the police. In other words, the DPP has cases ‘dumped’ on it by the police, and has to make the best of them. Their ‘reasonable prospect of conviction’ is based entirely on the word of the police that they have sufficient evidence. You can see here how a world of tension and acrimony might open up between the police and the DPP.
So it looks as if my anger against the DPP might’ve been misplaced. My anger should have been directed at the police. But of course if I’d written to the police about their lack of evidence, where would it have got me?
a bit more on cell cultures, cell mortality and patients’ rights
Human connective tissue in culture, 500x. Image courtesy of Dr. Cecil Fox (photographer)/National Cancer Institute.
Canto: Well, we’ve followed up Meredith Wadman’s The vaccine race with Rebecca Skloot’s The immortal life of Henrietta Lacks, which intersects with Wadman’s book in describing cell cultures and their value in modern medicine and genetics. So are ready to talk about all this again?
Jacinta: Yes, this book tells a compelling history of the Lacks family as well as a story of the ethics around human cell cultures, based on the HeLa cell line taken from the cervix of Henrietta Lacks in 1951, shortly before she died of cervical cancer.
Canto: A very aggressive adenocarcinoma of the cervix, to be precise, though the tumour was misdiagnosed at the time.
Jacinta: Yes, her bodily state and her sufferings make for grim reading. And the cells were taken sans permission, in a pioneering era of almost no regulation and a great deal of dubious practice.
Canto: The wild west of cell and tissue culturology.
Jacinta: George Gey, the guy who ordered these cells to be taken, was a great pioneer in cancer and cell culture research, but he and others found it very difficult to keep human cells alive in vitro, so he was much surprised and delighted at his success with Henrietta’s tumour cells.
Canto: They were the first ever cells to live beyond the Hayflick limit, though that limit wasn’t spelt out by Hayflick until 1961.
Jacinta: And wasn’t accepted for decades after that. And the reason for their apparent immortality, a rare thing in untreated cells, was their cancerous nature. Human cancer cells contain an enzyme known as telomerase, which rebuilds the telomeres at the ends of chromosomes. Normally these telomeres, often described as like the protective caps at the ends of shoelaces, shorten and so become less protective with each cell division.
Canto: So if we could stop cancer cells from producing telomerase, you’d stop all that metastasising…
Jacinta: Sounds easy-peasy. And if we could introduce telomerase into non-cancerous cells we could all live forever.
Canto: Bet they haven’t thought of that one. So if this cell line was cancerous, how could they be of so much value? How could they be of any use at all, since the aim, I thought, was to produce ‘clean’ cells, like the WI-38 cells Hayflick produced ten years later? Remember how they had so many problems with monkey cells, which were full of viruses?
Jacinta: Well, forget viruses for the moment, the exciting thing about the HeLa cells was that they stayed alive and multiplied, which was rare, and so they could be experimented on in a variety of ways.
Canto: But did they use the cells for vaccines? The 1954 Salk polio vaccine was tested using these cells. How can you do this with cancerous cells?
Jacinta: Well it was the suitability of these cells for mass-production that made them ideal for test-driving the Salk vaccine, and of course their prolific nature was tied to their cancerous nature – Henrietta’s cancer seemed to be horribly fast-spreading, it was just about everywhere inside her at her death. Her cancer was caused by the human papilloma virus (HPV) and I’ve read that this may have had something to do with their prolific nature. She also had syphillis, likely contracted from her philandering husband, and this suppresses the immune system, allowing the cancer cells to multiply more rapidly. But even though they were cancer cells they shared many of the properties of normal cells, including the production of proteins and susceptibility to bacterial and especially viral infections. Of course you would never inject HeLa cells into humans, but their malignancy is an advantage in that you get the results of say, viral infection of cells as they reproduce, much more quickly than with normal cells, because of their reproductive rate. It seems old George Gey hit the jackpot with them, though he never made any more money out of them than the Lackses did.
Canto: They initially used rhesus monkey cells to test their antibody levels in response to Salk’s killed polio virus, but they were too hard to get and too expensive, and the HeLa cells were an excellent alternative because they were easily infected by the virus… and they reproduced with unprecedented alacrity.
The malignancy of immortality (or vice versa). A HeLa cell splitting into two new cells. The green spots are chromosomes. Courtesy Paul D. Andrews)
Jacinta: Yes, that’s to say, they readily produced antibodies, and so could be experimented on to produce the level of antibodies to create immunity. But growing cell cultures in vitro and maintaining them in a viable state, that’s been a decades-long learning process. Tissue culture these days is big business, which has led to the murky ethical questions about tissue ownership that Skloot refers to at the end of her book.
Canto: Yes but I for one am quite clear about that issue. I’m more than happy for researchers to use any tissue that comes from, say, a biopsy done on me. Is that tissue mine, when it’s removed from my body?
Jacinta: Well, is it? Think of locks of hair kept from a loved one – something that happens a few times in Skloot’s book. Wouldn’t you be moved by a lock of hair that you knew came from someone you loved but who was no longer around? Wouldn’t you feel you had hold of a part of her? Not just a memory of her?
Canto: Interesting. I think I’d be in two minds about it. I’d think, yes, this is her hair, a small part of her, and that would bring all the emotion of identity with it. But then, what I know about science and cells tells me this is just hair, it’s not what makes her her. It’s nowhere near it. Our hair is discarded all the time.
Jacinta: If you had some of her brain cells? Or heart tissue haha?
Canto: Nothing but ultra-ultra minuscule parts of the whole. And essentially meaningless when disconnected from that whole. But this misses the point that the value of this tissue for research outweighs by far, to me at any rate, the sentimental value that you’re talking about.
Jacinta: But for some people, and some cultures, the intactness of the human entity, after death say, is of deep-rooted significance. Are you not prepared to respect that?
Canto: But we slough off our trillions of cells all the time. Even as a kid I was told we replace our cells every seven years. Of course it’s much more varied and complicated than that, but the general point of constant renewal is true.
Jacinta: Yes but they’re your cells, with your DNA in them, nobody else’s.
Canto: Well people are prepared to be operated on, which inevitably kills or removes cells, and in doing so they give themselves up to experts in healing their bodies and often saving their lives, so it would seem to me pretty mean-spirited not to allow those experts to make use of what’s removed, which is of no obvious use to them.
Jacinta: I think you have a good argument there, but what if these mad scientists use your cells for some nefarious purpose?
Canto: Well, call me a trusting soul, but why would they do that? And what nefarious purpose could they use them for?
Jacinta: Well it mightn’t even be nefarious. With the modern commercialisation of cell and gene technology, they might find your tissue perfect for developing something patentable, out of which they make shitloads of money while preventing independent research on the tissue, so using your cells in a way that you might strongly disapprove of. But you wouldn’t have the slightest say, as things stand today. Rebecca Skloot describes examples of this kind in the Afterword to her book. There’s been a raging debate about commercialisation and gene patents and patients’ rights for some time now in the USA, and no doubt elsewhere, with scientists and other stakeholders ranged along the spectrum. In fact, these are the last words of Skloot’s book, published in 2010:
2009: More than 150,000 scientists join the American Civil Liberties Union and breast cancer patients in suing Myriad Genetics over its breast-cancer gene patents. The suit claims that the practice of gene patenting violates patent law and has inhibited scientific research.
Canto: Right. As her investigations reveal, it’s not just about patients wanting a share of the loot from research on their cells, and so using the courts to bog everything down and hinder that research, it’s often about researchers themselves wanting to cash in, and patients joining with other researchers to try to free up the system for the common good. So how’s the Myriad Genetics case going, and how’s the situation regarding patient rights in this field, several years on?References
Jacinta: Well in the case of Myriad, it was all highly complex and litigious, with suits and countersuits, which the company mostly lost, in particular in a landmark (and unanimous) Supreme Court decision of 2013, in which they found that ‘merely isolating genes that are found in nature [in this case the BRCA-1 and BRCA-2 genes] does not make them patentable’. But of course this wasn’t so much about patients’ rights in the material that was once part of their bodies. It’s not all about money – though much of it is, and if you don’t want the money landing in lawyers’ pockets, the best thing is to have clear guidelines, disclosure, and fully developed and complex consent procedures. My impression from doing a fairly shallow dive on the issues is that we’re a long way from sorting this out, in an increasingly complex and lucrative field. Our own federal government’s NHMRC has a booklet out, available on PDF, called ‘Ethics and the exchange and commercialisation of products derived from human tissue: background and issues’, which is already six years old, but I don’t see anything in the legislative pipeline.
Canto: Looks like an issue to be followed up, if we have the stomach for it.
Jacinta: It pays to be informed, that’s one obvious take-away from all this.