Today, I present you with two videos, both of which use nearly the same soundtrack, but with different pictures. This inverts the exercise. Watch them both, then tell me how each made you feel. Don’t think too much, and don’t try to limit yourself by thinking which is better. Just watch and observe your automatic response to each.

I had very different emotional responses to these two videos. Tell me in the comments how you reacted to them.

http://www.youtube.com/watch?v=iuvoSw1TiJ8

http://www.youtube.com/watch?v=d5RVSLA92r0

(I am not opposed to same-sex marriage on principle, but my position is much more complicated than can be expressed by a simple answer to a “are you for it or against it” question. I will fully describe my, so far as I can tell, unique position on same-sex marriage in another post.)

Recently, another issue has caught my attention. This one is not a legal issue, but a conceptual one. I have always found myself a bit nonplussed whenever I hear someone mention his husband, or her wife. Despite the fact that I know that the speaker is gay and may even actually have gone to the trouble of going somewhere to get legally married (same-sex marriage is not legal or recognized in Key Midwestern Swing State), it still strikes me as odd that a man should use the term “husband” to refer to his spouse, or a woman can be married to a “wife.” The reaction I have is one that, could it be summed up in a phrase would be “but he’s not really your husband, even though you two are married.” In other words, I feel like the speaker is or ought to be raising his hands above his shoulders to the level of his ears and repeatedly curling the middle and index fingers of both hands in a downward motion while saying the word “husband” or “wife”.

There’s a video on YouTube for everything:

http://www.youtube.com/watch?v=PzRPiFXMKpg

This mental response of “there’s something not quite right about that usage” is subtle, but consistent, which makes me think it is not inconsequential and deserves investigation. There are two possibilities: either I subconsciously do not accept a man in a same-sex marriage as a proper unit of the concept “husband”; or such a person is not properly a unit of the concept.

The simple definition of “husband” is “a married man”. And if definitions were interchangeable with concepts the matter would be closed. But the concept actually subsumes all the fundamental properties shared by its units. So the question is: is having a wife part of being a “husband”? Is being possessed by her husband part of being a “wife”? Other conceptual evidence suggests that it is. A gender neutral concept for a married person exists: “spouse”. It doesn’t carry all the fine points of the masculine-feminine relationship and so is a broader concept than “husband” or “wife”.

Here’s where Rand’s Razor comes in. It directs to conceptualize only to the point necessary, then stop. Further groupings should be identified descriptively. Leonard Peikoff, “The Analytic-Synthetic Dichotomy” in Introduction to Objectivist Epistemology 94–96 (Plume 1990). Assuming “husband”, “wife” and “spouse” are all proper concepts, then there must be something essential and fundamental to the concept “wife” other than the fact that wives are women. If not, then there would be no need for the concept “wife,” because this grouping of female spouses could be identified more easily in the descriptive terms I just used.

Additionally, I am reminded of Hank Rearden’s walk home with the bracelet in Atlas Shrugged — the bracelet which he intended for his wife, but not the woman to whom he was married. These concepts “husband” and “wife” carry with them a great deal of other very significant features that deal with the interplay of the masculine with the feminine. These features are, both in my experience and, I believe, as a matter of principle, fundamentally different in and, in some instances absent from, same-sex relationships. In short, these concepts do not apply merely because a unit to which they are applied meets the definition. Men and women in same-sex marriages do not seem to belong in the concepts “husband” and “wife” because same-sex marriages have very different relationships and interpersonal dynamics than opposite-sex marriages. There is certainly a masculinity-femininity dynamic at work in same-sex relationships, but it is very different from the masculinity-femininity dynamic that is part of the heterosexual marriage.

I see a few possible conclusions:

1. Expand the concepts “husband” and “wife” by dropping those concepts’ current references to the gender of the unit’s spouse and the heterosexual masculinity-femininity dynamic, effectively rendering them fully equivalent to the phrases “male spouse” and “female spouse”, even though Rand’s Razor would then dictate abandoning the concepts “husband” and “wife” altogether in both gay or straight relationships in favor of the descriptive identifications within the master concept “spouse”;

2. Assume that “husband” and “wife” did not include the gender of the unit’s spouse and the heterosexual masculinity-femininity dynamic as an essential and fundamental feature of all units in the concepts in the first place, and then adhere to Rand’s Razor and abandon “husband” and “wife” for gay and straight married people and use “spouse” as the concept and identify subsets descriptively, despite the fact that “husband” and “wife” have venerable conceptual pedigrees;

3. Describe gay married men as “gay husbands” (or some other descriptive variant on the concept “husband”), even though this would be like saying “this is a husband, except that it lacks several essential fundamental features of husbands” and reads to me like a stolen concept;

4. Develop entirely new concepts for gay spouses, which would need to have a lot more distinguishing features than a simple gender-specification, such as implications about the sexual dynamics involved, in order to justify treating them as concepts in their own rights;

5. Use the existing concept “spouse”, which does not include gender or sexual dynamics, and merely use the descriptive “gay spouse” if further specificity is needed.

If there is in fact a conceptual problem with including men married to other men in the concept “husband”, then number 5 is my preferred solution. I would appreciate comments, but only if they deal with the conceptualization issue I am discussing. I do not need comments telling me that I’m a homophobe because I refuse to treat gay marriages as conceptually equal to straight ones. I’ve already told you that I agree that they should be politically and legally equal, and that’s not the issue I’m discussing in this post.

Update: 12th April, 2010. There has been some misunderstanding about the purpose of this post. The purpose of this post is to explore the cause of my persistent, nagging negative emotional response to same-sex couples using the words “husband” and “wife”, be it subconscious conceptual error or something else. Please review the comments.

Unfortunately, everyone is so used to the government owning the roads ... that few so much as bat an eye when they hear of the government looking for ways to psychologically manipulate people into doing its bidding. Indeed, in this limited context, it is hard to argue productively against the government taking advantage of such knowledge about human perception.

As a law student, this topic has caused me a great deal of concern over the past few months. I have wanted to write something about it, but have not had the time or energy to do so in any great detail. Now that the semester is over, I intend to put some substantial effort into it. I will use this post to record my initial thoughts on the problem, in anticipation of a more thorough, well-written post at some point in the future.

Constitutional Law really got me started thinking about this issue. So much of Con Law is skirting, evading, rationalizing, or outright ignoring contradictions created by unexamined bad premises. I hope to develop several concrete examples, but for now, take the example of student speech (the Tinker line of cases). Students are protected by the First Amendment’s guarantees of freedom of expression, but schools have a significant interest in carrying out their educational mission, which may at times require curtailing students’ ability to speak freely on campus.

In my head, there is no problem here. The First Amendment applies only to government actors. A school, as a private actor, may run itself as it sees fit, and may curtail student speech as much as it wants. Students who do not like it may take their business elsewhere.

But wait! Most schools are not private actors. The government runs them. Therefore, the schools are subject to First Amendment restrictions. Now what do we do?

No matter what standard of review you apply to restrictions on school speech, there must be at least a legitimate state interest in regulating the speech. In school speech cases, the state interest is in carrying out the educational mission of the school — the same interest a private school would have in regulating student speech, except here it is being offered by the government.

On the one hand, the operator of a school has a legitimate interest in regulating student speech in furtherance of its educational mission. But on the other hand, governments have no such legitimate interest. A government should not be able to get around something like the First Amendment simply by engaging in an activity that ought to be private. Government shouldn’t be able to inherit the rights of private parties by co-opting a private role.

Instead of questioning the premise — that government schools are acceptable — the legal system has created a complex, obscure, non-objective doctrine for balancing individual rights against government interests.

“!”

The idea that individual rights and government interests are things that can conflict and therefore must be weighed and balanced is so obscene that it makes me physically sick to my stomach every time I read a court opinion expressing it. Government has only one legitimate interest, as expressed in the four most important words of the Declaration of Independence: To secure these [individual] rights.

So when a case like Morse v. Frederick (the “bong hits 4 jesus” case) comes up to the Supreme Court, the rational thing to argue is that no balancing is required — the mere existence of a public school violates individual rights, including the student’s free speech rights. A rational legal system dedicated to protecting individual rights would progressively limit the powers of public schools to the point where they could no longer operate.

But ours doesn’t do this, because “society” places a value on public education, and because “democracy,” as expressed in the legislature, shows that “the people” want public schools. And who are the courts to question the will of the people?

All of this is important to me because I will one day be a lawyer. I will argue on behalf of clients. Can I ethically argue what I think will get my client the best result (the best result being the result closest to an objective ideal result), if in making that argument I must give sanction to the unchallenged false premise? Or do I challenge the false premise and lose my case, and perhaps my license? (You can lose your license for making a legal argument that is not, in the court’s opinion, rationally supported by existing law. Arguing that public schools are unconstitutional would be such an argument. It would also be a wrong thing to argue given the current approaches to constitutional law — by all the widely accepted jurisprudential models, public schools are constitutional. And because they’re constitutional, it is not in the power of the courts to do away with them, even though they really do violate individual rights.) By limiting what premises may be challenged, the courts get stuck with all these contradictions among individual rights and government interests. If you can’t challenge the false premises, you’re stuck in a situation with no right answer.

How do you argue for what is right in situations where there is no right answer?

I call these situations “sundae specials,” because of a metaphor that occurred to me almost a year ago: This is like asking whether you want sprinkles on your giant poison sundae. How do you make that decision, except by ignoring the gross underlying evil?

Other concrete examples include gay marriage (conflict between equal protection and the welfare state), the draft (do we allow discrimination based on gender in order to get fewer people drafted, or do we require Congress to draft qualified men and women, in the interest of equal protection?), and freedom of religion (misapplication of the principles of Free Exercise and No Establishment leads to contradictions between the two clauses).

I will be writing more coherently about this subject in the future. Comments and suggestions for avenues of research are welcome.

In the course of going about living his life, a man notices that he has a disproportionate preference for redheads as romantic interests. Not being a lazy man, he engages in some lengthy introspection and arrives at the following accurate conclusions:

1. His preference for redheads makes him more likely to investigate the possibility of romance with redheads than with non-redheads.
2. Red hair is not a factor bearing any weight on his decision to engage in, continue, or end a romance.
3. His romances with redheads are no more or less healthy and rational than his romances with non-redheads.
4. He honestly does not know why he prefers redheads.
5. He can find no reason why he ought to prefer redheads, nor any reason why he out not to prefer them.

In other words, for some reason, he likes redheads, and acting in accord with the preference does him no harm. Nor does it help him much, except that he derives marginally more pleasure (again, for an unknown reason) from his relationships with redheads.

Does he have any moral obligation to continue to investigate the psycho-epistemological roots of his preference for redheads? To refrain from acting on the preference until such time as its roots are discovered?

What are your thoughts? I have my own answer, which I will post later.

I agree that only things with rights can enter contracts. Marriage, being a constellation of legal relationships akin to a contract, is only properly available to things with rights. One could not marry one’s toaster. One’s toaster is not a conditional, volitional consciousness. Its existence is not an end in itself, it does not require sustained action to gain and achieve values in order to continue to exist, it is not required to make value judgments. It has no ethics, so rights are simply inapplicable to toasters.

There are two questions, then: What is a robot?, and Is it the sort of thing that can have rights? The first is a question of technology, the second, of philosophy.

I. Technology

Modern robots are purpose-built, computer-controlled machines. They are made of mechanical components. Filbbert says:

We’re venturing now into the realm of science fiction, so I should predicate my comments by saying that I’m talking about purely mechanical beings and not biomechanical or cybernetic beings.

Using the word “beings” begs the question a little, but I think we all understand what he means. (I will use things instead.) Flibbert seems to suggest that a lack of biology is an essential component of the relevant definition of “robot.” I disagree.

We are on the brink of major technological changes. We have already begun to blur the line between mechanics and biology. Biotechnology allows us to create “biological machines” to produce, for example, insulin. We are already building living organisms from scratch. It is only a matter of time before we develop the technology to build complex, multi-cellular things that carry on the same sort of tasks that modern robots do.

Ultimately, all biological things, including humans, are just very complicated, chemical machines. (I’m not suggesting that we’re just flabby sacks of chemicals with delusions of grandeur. The complex chemical machine that is the human being is arranged such that it gives rise to a rational, volitional consciousness. How it does this is for science to discover. That it does this is the philosopher’s only concern, and is pretty well self-evident, to boot.)

Likewise with biology, we’re beginning to investigate nanotechnology, which will blur the biological/mechanical distinction to the point of irrelevance. We will have nanobots building orgobots building mechabots. But ultimately, what the thing is made from is less important than what it can do.

Bot technology is currently driven in large part by reverse-engineering the human mind. There’s nothing mystical about the human mind; it works somehow, and how it works is within our power to discover. We already have robots capable of sensation. As neuroscientists learn more about the structures of perception, bot builders will incorporate electromechanical, and eventually biological and nanotechnological functional equivalents of these structures into their creations. We are not very far off from a conscious robot — one that can perceive existence. (Consciousness is the faculty of perceiving existence. A robot capable of perception would be rightly called “conscious.” Perception is an automatic process of integrating separate sensations into units. Current machines are able to simulate perception in limited contexts, but we wouldn’t call them conscious until they are able to emulate perception in any context.) Once we learn how our own brains perform these integrations, there’s nothing saying we couldn’t build a machine capable of emulating the process.

Our ability to study the brain is expanding. Every day we learn more about it. Scanning technology continues to improve the resolution with which we can examine the brain. Likewise, by the end of this decade, we will have developed electromechanical computers with the capacity to simulate the human brain. Within twenty years, computers will be able to faithfully emulate the brain. These numbers are based on Ray Kurzweil’s hypothesis about the effect of his Law of Accelerating Returns on technology. For more information, see Ray Kurzweil, The Singularity Is Near 35–203 (2005). Kurzweil does not account for the effects of philosophy on human events, however. So his predictions will be off if our current philosophical crisis is resolved poorly. Whether we will know how the brain works by then (especially the question of how the brain perceives) will determine whether we are technologically able to create a conscious robot. Eventually, we will be able to build an electromechanical (or biochemical, or nanotechnological, or some hybrid thereof) analogue to the human brain that will be capable of consciousness. Once we can do that, I think it will be a much easier step to go from perceptual consciousness to conceptual. Truly thinking machines are technologically possible, and will be here sooner than we might expect.

Ayn Rand speaks in terms of “organisms” in The Objectivist Ethics, in The Virtue of Selfishness 13, 16 (1961). I do not believe that this is essential to her argument. If “organism” means “something that is alive,” then her argument does not necessitate biochemistry as a basis for that life. She appears to be presupposing and describing a living entity, not defining life. I think it is entirely technologically feasible for Man to create a thing that is able to acquire “the material or fuel which it needs from the outside, ... [and to] us[e] that fuel properly.” We can create new organisms in a lab, after all. I don’t see how the particular method (biochemical versus some other method) makes any difference.

Merely being capable of conception, however, is not sufficient for rights. A consciousness with automatic conception would have no need of rights. Which leads us to:

II. Philosophy

There are some requirements which must be met in order for a thing to have rights. The thing must have these:

• Life
• Consciousness
• Volition

See Ayn Rand, Atlas Shrugged 1012 (1957), reprinted in Ayn Rand, This is John Galt Speaking, in For the New Intellectual 117, 121 (1961) (arguing that “[M]an,” who has rights, “is a being of volitional consciousness”). I am of the thought that a robot (be it electromechanical, biochemical, or nanotechological) capable of faithfully emulating the human mind would necessarily be possessed of consciousness and volition. (I do not discuss consciousness or volition in this post.) If it weren’t, it wouldn’t be a faithful emulation. As discussed above, I see nothing about the human mind that is beyond the power of the human mind to learn and understand, and nothing standing in the way of developing a technology capable of emulating it.

But would such a robot be alive? This seems to be Flibbert’s primary objection.

[Sufficiently advanced robots] may share a rational faculty, but they do not have biological needs, specifically, they cannot die.

You can turn a robot off and turn it back on at any time. Even if it somehow could not be turned off and back on, it would be possible to recreate a robot’s “consciousness” if it were damaged. In effect, robots cannot die and as a result, it has no need for a right to life, liberty, or property.

But that suggests that death is a necessary part of life. I do not think that Objectivism necessarily takes this view of life.

Life is a kind of existence that is conditioned on self-generated, self-sustaining action. See Ayn Rand, Atlas Shrugged 1012–13 (1957), reprinted in Ayn Rand, This is John Galt Speaking, in For the New Intellectual 117, 121 (1961). Modern robots are capable of self-generated action within the limits of their design. Because we have only so far achieved sensate robots, modern robots are only capable of self-generated sensory response. Many modern robots merely regurgitate preprogrammed responses to sensory stimuli. These are not self-generated actions. They are generated by the programmer. They only simulate self-generated action. But some robots, even very simple ones, can be said to be sensate. For example, this robot’s self-balancing behavior is arguably a self-generated sensory response. It is at least no less sensate than a flower turning towards the sun. (But it is not alive, because this action, though self-generated, is not self-sustaining.) If we accept that one day robots will be capable of forming and dealing with concepts, then it is reasonable to accept that they will be capable of self-generated conceptual action as well.

But merely self-generated action, even self-generated conceptual action, would not make such a robot alive. The self-generated action must also be self-sustaining. It is interesting to note that we are also currently capable of constructing apparently self-sustaining robots. Apparently, because their self-sustaining actions are not actually self-generated, but pre-programmed. The Roomba vacuum cleaner, for example, has a pre-programmed response to low batteries: It parks itself in its charger to refuel. Again, not alive, because the action is not self-generated.

If we were to create a robot that could build a copy of itself out of raw materials (as opposed to mere assembly from prefabricated parts; “raw” here means “metaphysically given”), I think it would be unquestionably alive. Unicellular critters are basically robots that build copies of themselves from raw materials. We can engineer custom-built unicellular critters (see above). Is this really any different from building a self-replicating biochemical robot? If not, then is that any different from building a self-replicating mechanical robot? Or a self-replicating nanobot? Or some hybrid? As I discussed above, I still think not.

The key to truly self-sustaining action is conditionality.

I propose that conditionality is to be construed broadly. If a thing will cease to exist in the absence of some volitional action, then its existence is conditional in the sense essential to life (and by extension, rights). I think many modern robots meet this definition of conditionality, but are nonetheless not alive because their existence is not conditioned on self-generated, self-sustaining action. It is conditioned on external actions. A modern robot will run only so long as there is a person to care for it. A modern robot must be kept in existence by something else acting upon it.

A modern robot is always conditional. It requires action to keep it in existence. Which is to say, it requires action in order to keep it being a robot, instead of a pile of immotive, insensate junk. But modern robots are not alive, because this action must come from without. Specifically, the sustaining action comes from an act of will by the creator, Man.

(This introduces a problem I will discuss in more detail further down the post: the problem of artifacts. A robot is an artifact, because it is purpose-built by Man. See below.)

A robot is therefore conditional in two ways: conditional in its creation, and conditional in its continued operation. Currently, both are entirely dependent on external actions by Man. Clearly such things are not alive, and have no rights. But as I have attempted to show, the creation of a truly self-sustaining robot is possible. Such a thing would be alive. At least, until it died.

Flibbert suggests that a robot must be able to die in order to have rights. Death is the loss of a living organism’s ability to take self-generated, self-sustaining action. It is the result of a failure to meet the conditions of existence. Man stops eating, Man dies. He has failed to meet a condition of his existence. Man ceases to be, and the now inanimate material of which he was composed becomes Corpse. Corpse is not alive and has no rights. A robot’s existence is conditional. If it runs out of fuel (stops eating), it will be unable to move, and unable to sustain its own existence.

Death is one of the disadvantages of biochemical entities. The major advantage is that biochemical processes are relatively simple compared to mechanical analogues. Biological evolution is a very simple process for enabling incremental change in the absence of an integrating consciousness. It is very slow. A shorter individual lifespan helps evolution to occur a little more rapidly. We see this in short-lived species that can be observed over many generations in a laboratory.

Technological evolution, which has already surpassed biological evolution in the ways it has affected human life, is a much faster process, but is vastly more complex. For instance, it depends on cognitive processes. But if it is possible to build a cognitive mind out of parts that are not subject to the limitations of biochemical processes, then technological evolution could occur in the absence of any biochemical processes. The question is: would it?

If an entity cannot die, then it can have no ethics. Its existence is no longer conditional, so life is of no value to it. Ayn Rand presented this problem with the concept of an immortal, indestructible robot. See Ayn Rand, The Objectivist Ethics, in The Virtue of Selfishness 13, 16–17 (1961). Such a robot, she says, would have no ethics because its life would be unconditional. I believe that this is an ethical illustration, and should not be read to have metaphysical considerations. Only matter is absolutely indestructible, and everything, including men, is made of matter. So to suggest an indestructible robot is to suggest some peculiar immutable form of matter; such form giving rise to conceptual consciousness. I think this is a metaphysical inconsistency, so it appears Ayn Rand offered the example merely as an illustration that conditionality is a precondition of ethics. An immortal robot would not, strictly speaking, be immortal. Its form, which gives it the power of self-generated, goal-oriented action, could change and render the robot incapable of action. It could rust. Or it could be smashed. [Query: Is this similar to Aristotelian Hylomorphism?]

A thinking machine could be destroyed by outside forces. That doesn’t make it alive, of course. What makes a thing alive is hinging its continued ability to think upon necessary, self-generated action. As I have already discussed, I do not think that power necessitates the incorporation of biochemical processes.

Also, immortality is to be distinguished from an indefinite lifespan. An immortal thing is not alive. But a definite lifespan (which is to say, a lifespan that will definitely not exceed a given span of time) does not appear necessary to ethics. As long as an entity can keep up the sustained action required to maintain its existence, it will be alive and possessed of rights. That such an entity is not subject to the peculiar limitations of biology does not seem particularly relevant.

All of technology (that is, the application of scientific knowledge to the task of living) has been an effort to stave off the limitations of biology. Technology also reduces the amount of individual effort required to stay alive. Dramatically. Compare the individual effort required to stay alive in Western Civilization today with the individual effort required to stay alive in 14th Century Europe; the difference is technology and the philosophy that allows it. As we move towards a more technologically-driven existence, the effects of the limitations of biology will continue to dwindle. Because we will eventually develop the technology to faithfully recreate the human mind in non-biological form, it follows that humans could eventually overcome completely the limits of biology, in favor of the much less ephemeral existence afforded to non-biological entities.

I find nothing philosophically offensive in the idea of an indefinite human lifespan. I think Objectivism holds up, even under the circumstances of non-inevitable death. Death would still be possible to humans with indefinite lifespans, and would be certain if the effort required to maintain life was withdrawn. Just because we might technologically be capable of reducing that effort to a theoretical minimum does not change the ethical calculus requiring life as the ultimate value.

By defining “life” in terms of what the thing does, rather than by the physical means by which it does it, Ayn Rand created an ethics that will not fail when man evolves from a biological entity into a technological one. When we create living “robots” in the image of our own consciousness, the Objectivist ethics will apply equally to them, despite being possessed of indefinite lifespans.

III. Concluding Notes

A. The Problem of Artifacts

If we accept that science and industry will provide the technology to faithfully emulate human consciousness, the only philosophical difference between such a piece of technology and a human being would be that the former is an artifact, while the latter is not. An artifact is an object created by Man for a particular purpose. An artifact requires an act of integration to create. Without that act of integration, the artifact would not exist. Man, however, required no act of integration to come into existence. He was not “intelligently designed.” A robot would be.

Objectivism instructs that life is an end in itself. But artifacts are the means to an end. Is it possible to create a living artifact? If one were to genetically engineer a docile, unintelligent but conceptual race of creatures, specifically for the purpose of performing menial labor, would they have rights? Are their lives ends in themselves? Which status (living or artifact) is more important? I don’t think Ayn Rand expressly answered the question (because it never arose), but I think it is easy to conclude that being alive trumps being an artifact. The fact that life is an end in itself comes from the necessity for self-sustaining action, not from the absence of any other “greater purpose.” [Query: Isn’t this the fundamental difference between Objectivism and secular Humanism?]

B. Disturbing Potentials

i. Mind Control

If we develop the technology to understand and faithfully emulate the human mind, won’t that also give us the technology to manipulate the mind on its most fundamental level? I don’t think that’s a valid argument against the technology, but clearly individual rights will remain of paramount importance in the future.

ii. Resurrection

The question of indefinite lifespan of a conscious being raises the issue of continuity of that consciousness across gaps in the ability to undertake self-generated, self-sustaining action. A person dies when his brain ceases to function, even for a moment. No person has ever been revived from brain death. If it became technologically possible to restart a stopped brain (a possibility more relevant to a non-biological brain), would the consciousness be the same? I think so, because consciousness is a function of matter and form, not of anything mystical. The disturbing potential here is that resurrection would not be a self-generated action. It would the operation of external forces to maintain, or more accurately, to reinstate, life. I think even a resurrected consciousness would still qualify as alive, because its continued existence would still be dependent on self-generated action, but would the possibility of resurrection affect the ethical calculus by reducing the importance of life as a value? Even more disturbing, would the possibility of resurrection, presumably by another person, make the human race a collective one, where existence of the individual depends strictly on the actions of others? This is not an avenue I intend to address with this post.

iii. Intelligent Design

Living, technological entities would necessarily be intelligently designed, at least in part. We are, to some extent, intelligently designed already, to the extent that we have modified our existence through technological means. We are not the same creatures we would be if it weren’t for technology. Fundamentally, however, the biological consciousness from which we build our future selves, and which we will emulate with technology, was not intelligently designed. It was the product of biological evolution. When we shift from biological evolution to technological evolution, we will not abandon the products of biological evolution. Biological evolution will in fact continue. We will just be evolving faster under our own power. Though we might improve on it drastically in the future, the nucleus of consciousness will always be in emulation of the biological origins of our future technological selves.

C. Final Words

In summary, I think Objectivism would extend rights to robots who met the definition of life and were possessed of volitional consciousness. I do not think the indefinite lifespan of such a creation would affect the conditionality of its life. While my toaster clearly does not meet the requirements, I do think that it is entirely within the ability of Man to create such a being, and that even while such creatures might be viewed as different from Man, they will nonetheless be possessed of the same individual rights. But as we develop the technology, we will change ourselves to be more like our creations. Whether there is ever a distinction between “us” and “them” seems to me irrelevant, because eventually, we will become them, and they us.

Intellectual sloppiness begets intellectual sloppiness. Hymowitz should have done some real research, instead of relying on a few prominent Libertarians’ warped interpretations of Rand’s philosophy, before purporting to speak with any accuracy about it.

Whereas I initially wanted to withhold an accusation of malice, I now find I cannot do so. The tone of the editorial is never so snarky as when Rand or her influence is mentioned. Hymowitz may (rightly) have a dim view of Libertarian “ethics” (inasmuch as such a thing can be said to exist), but she saves some of her most pungent vitriol for Rand.

Notice that Hymowitz supports some of her claims about Libertarians with actual quotes from real life Libertarians, but does not bother to support either her claim that Rand belongs in the same philosophical category or her outlandish claim about Rand’s view of family with reference to Rand’s actual ideas. She refers instead to Libertarian representations of Rand. Representations that are fabricated from whole cloth.

Hymowitz commits many of the same errors that are de rigeur for the Libertarians she finds so amoral. Integration by nonessentials. Argumentum ad populum. Affirming the consequent. Substituting a definition of a concept for the concept itself. And of course, my old favorite, failure to recognize the ought in an is.

That Hymowitz was able to come to such an insane conclusion as “Ayn Rand . . . saw the family as a soul-killing prison” demonstrates that Libertarians (Hymowitz’ only apparent source for information on Rand and Objectivism) are spreading around some very nasty ideas.

There is no way a rational person could, given even a cursory investigation of Objectivism, arrive at Hymowitz’ conclusions about the philosophy. It is for this reason that I decided not to post my refutation of Hymowitz’ factual and interpretive errors, and instead decided only to point out that she had made them. Anything else that needs saying, either about Libertarianism in general, or this editorial in specific, has already been said elsewhere in the Objectivist Web-o-Sphere. See Gus Van Horn, Rational Jenn, and the comments over at NoodleFood.

Constitution. From constituere, to fix or establish. The U.S. Constitution was written as an establishing document. It “fixed” the powers of government. If you read the main body, it presents a list of what the government, be it the Executive, Congress, or the Judiciary, may do. In those places where it prohibits the government from doing something, it is always a narrowing of an earlier grant of authority. Fundamentally, the original Constitution, without the Bill of Rights, is an empowering document. It transfers some power from individuals into the Federal government. The Federal government, under this interpretation, has no power that is not granted by the Constitution. Nowhere does the Constitution grant the Federal government the power to establish an official state church. Therefore, the Federal government has no power to do so. Doing so would be unconstitutional, even without the 1st Amendment.

But the Framers found it difficult to get the Constitution ratified without a Bill of Rights. So they wrote up a list of Amendments which, together, are simply a political tract describing the new government that the Constitution would form. Congress has no power to establish a church. It was a grave error to write the Bill of Rights in the language of law. It was an even graver mistake to incorporate it bodily into the Constitution.

Expressio unius est exclusio alterius. To express one is to exclude others. If you enumerate rights, you exclude those not enumerated, 9th and 10th Amendments notwithstanding. This wasn’t such a problem in the early (pre-Progressivism) days, because the original natural rights philosophy of the Founders dominated Constitutional interpretation. The document was still fundamentally an empowering document. It just had some extra descriptions attached to it, clarifying the limits of the power granted by the main body.

In come Progressivism and Positivism. Between the 1830s and the 1860s, the dominant philosophy changes. By end of the Civil War, the Constitution is no longer an empowering document. It is now a limiting document. Government power to do a thing is assumed, unless the Constitution (or Bill of Rights) removes that power. The philosophy finally consumes the whole of the law in the 1930s, with the packing of the Court.

Today, Positivism instructs that, should Congress and the several States decide that the 1st Amendment prohibition on the establishment of religion was, for some reason, no longer conducive to Progressive social goals, they might, presumably with voter approval, repeal it. And in doing so, make the establishment of an official state church Constitutional without any further action. Even though the Constitution does not grant Congress the power to establish a church.

The difference is the source of the government’s power. It no longer comes from individuals, but from the group. Positivism allows the group to remove the legal safeguards protecting individual rights. This is, of course, a monstrous abrogation of individual rights.

Because Positivism permeates the legal environment, reinforced by Progressivist law professors (I often employ the phrase, “liberal pedagogical hegemony”), there is no legal means by which to mount a principled challenge to bad law. That is, there is no way to make a legal argument that a law, ruled entirely Constitutional, is nonetheless violative of individual rights. Until the dominant philosophy changes, this will remain impossible. And the philosophy will not change easily. I wonder even if it can change.

Law school began for me last year with a one-week, “intensive,” introductory course titled “Introduction to Law and Legal Systems.” Oh, thought I, in preparing for this course. They intend to introduce us to their particular pedagogical methodology and give us a basic understanding of the nature of law and its function in society. I expected we would discuss the basics of law, before getting into the substantive and procedural studies of our regular semester courses. After all, it is generally important to identify the subject of study before beginning to analyze it. So I expected questions like “what is law?” or “what is the role of government?” I also expected some kind of statement or description of the method by which the school expected us to learn the subject matter. Alas, woe and misfortune! This is not what “Introduction to Law and Legal Systems” turned out to be!

An introduction to the administrators. A speech by the Dean full of vapid remarks about the great power and responsibility of lawyers (complete with the expected, inelegant references to a certain arachnoid comic book character). An exhortation to community service from the head of the legal clinic. Invitations to join, and the benefits of joining, the local, state, and national bar associations. A cursory and purely descriptive review of the structure of American government, which everyone should have learned by the 9th grade. A brief exercise in reading a judicial opinion. A threatening lecture on the honor code and its consequences. And finally, a two hour lecture on substance abuse. Apparently, all lawyers are alcoholics, and must be constantly reminded of the fact.

I wondered immediately whether the observed high incidence of alcoholism among attorneys might perhaps be related to the lack of a cohesive philosophy of law. I mean, here we all were, starting in on studying torts, contracts, and the delicious but perilous intricacies of civil procedure, and we still hadn’t figured out what we, as nascent attorneys, were supposed to be studying, or why.

It took a whole year before I heard the question, “what is law?” or even the word, “philosophy,” in the classroom.

In my second year course studying unincorporated business entities and basic business associations, the professor suddenly called on a student and asked her the question, “what is law?” Being generous, I attributed her startled, incoherent and vacuous response to the unexpected nature of the question. But I should probably know better. The topic continued for several minutes, with several students contributing. None of their comments are memorable to me now, a week after the event. Someone may have said something like, “a set of rules that determine people’s rights,” but I really don’t remember. Nothing was worth remembering. I long ago developed the habit of immediately forgetting incorrect statements made in the classroom. Fortunately, the professor must have gotten the answer he was looking for and moved on. Although I offered to contribute an answer, I was not invited to do so.

The answer, of course, is that law is the means by which the coercive power of government is placed under objective control. The function of law is to restrain government action. Its power to restrain private action, by setting the objective rules for when the government may use coercion to affect private action, is incidental. Understanding this, of course, requires an understanding of the role of government in society, a subject we only broached this week in Constitutional law class.

American law is hierarchical. The Constitution is the legal foundation. It is itself built on a more fundamental foundation of philosophy, but given that, the Constitution is the logical starting point for a study of law. But this is not where we begin. Constitutional law is taught only in second year. I have learned that this is a common practice among law schools, but not the most common. Most teach some form of Constitutional law to first-years. The rationale for putting it off is that Constitutional law is full of variegated and complex legal doctrines that may be difficult for first-years to grasp. I disagree. More on that in a bit.

So here I am, getting Constitutional law in my second year, and the professor begins to discuss legal syllogisms and the role of reason in the law. Excitement! Adventure! But no. Grief and regret! The professor, who is, I admit, quite well-versed in the modern Western (read: Kantian, and, notably, Humean) philosophers, makes the following pronouncement (paraphrased):

Logic is great for simple, concrete legal questions where the answer is easy. But in most legal analysis, you have to balance the value interests , and logic just doesn’t work for that.

This is, of course, a result of the influence of Hume and his guillotine, severing is from ought. Ayn Rand clearly and efficiently does away with the is-ought dilemma:

In answer to those philosophers who claim that no relation can be established between . . . values and the facts of reality, let me stress that the fact that living entities exist and function necessitates the existence of values and of an ultimate value which for any given living entity is its own life. Thus the validation of value judgments is to be achieved by reference to the facts of reality. The fact that a living entity is, determines what it ought to do.

Ayn Rand, The Objectivist Ethics, in The Virtue of Selfishness, 13, 18 (1964). In my great magnanimity, born of a desire to always assume the best in people, even when they’re wrong, I attributed my professor’s continuing adherence to Hume to a simple lack of familiarity with Rand’s solution to the is-ought dilemma. He was, after all, quite laudatory of reason and logic in the first instance, and even went so far as to make some minor deprecatory remarks about Kant. But I did not raise the issue in class. Perhaps I should have.

All of this got me thinking. American legal thought is dominated by two related philosophies. They are so related that they can reasonably be called different aspects of a single philosophy. The first is Positivism. This is the idea that there is no objective ought that can be applied to the law, and so the law must be treated simply as being what it is. And it is whatever the law maker says it is. Positivism is responsible for the extremely heavy weight given to precedent in the law. Read Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), which was written prior to the dominance of the law by Positivism and the related Progressivism in the 1830s, and you will find that Chief Justice Justice Marshall does not once cite precedent, even though there is relevant precedent, from the Court itself, to support him. Precedent is useful for maintaining uniformity in the law over time, but entirely useless if the object is to correct historically entrenched, bad law.

The other is Progressivism. Progressivism feeds on Positivism. If the law is only held accountable to itself, and can ultimately be whatever the law maker (Congress, the Framers, or the Majority by vote) decides it will be, then the fundamental, assumed premises on which the country was founded can be tweaked, manipulated, and eroded in the name of social engineering. Prof. Adam Mossoff describes the effect of Progressivism on the right of property in his lecture, The Rise & Fall of Property Rights in America, available for viewing at the Ayn Rand Institute’s Website (free registration required). Positivism strips the ought from the law, and makes true that old maxim of legal education, “there is no right answer in the law,” so that Progressivism may manipulate the law and engineer society. If a law stands in the way of the Progressive social engineering goals, Positivism allows the law to be changed, without respect to reality to determine what the law ought to be.

Progressivism is the philosophy behind that half-remembered definition of law I heard in by business associations class. Law is no longer a means for controlling government, but a means for controlling individuals. And Positivism makes the rules arbitrary.

My Constitutional Law professor noted that, although the word “equal” appears in the Declaration of Independence, it did not appear in the Constitution until the ratification of the 14th Amendment. Therefore, he concludes, the Framers did not intend for the Constitution to be interpreted as requiring the equal application of the law. Bunk, says I. Read the Declaration, and you find that the Founders believed it was self-evident that all Men are ‘created’ equal . It was not necessary to state this in the Constitution because it was assumed as given. Along with the rights to life, liberty, and pursuit of happiness. The philosophy of the Founders took these fundamental precepts of government for granted, so there was no need to state them in the Constitution. In fact, the Founders could not possibly have envisioned that the Constitution might one day be interpreted under a philosophy that did not presume these fundamental issues. The government they created wouldn’t work without them.

The philosophical change to Positivism vitiated the ideology on which the country was founded, at least as far as the law was concerned. And this is the essence of my revelation about philosophy in legal education. Philosophy is no longer relevant to the study or practice of law. If law is whatever the law maker says it is, and there is no means, other than whim, for deciding what the law ought to be, then there is no use for philosophy in the study of law. The student need only treat laws as metaphysically given, perceptually self-evident facts. Because it might change in nature at the blink of an eye, it is useless to take a principled approach to studying law. From the Modern Positivist position, anyway.

And as the law is entirely dominated by Positivism, it is deaf to arguments that challenge established law on principle. So law students do not need to be versed in philosophy.