"Fair Cop": Towards a Theology of Closeness.

Following on from my recent blog posts about closeness being valuable in ethics I’ve been pondering a question;
If I committed a crime and was convicted would I feel I would get a fairer sentence from a judge who knew me or one who didn’t?

Have a go at answering this for yourself. Don’t rush. Roll it around in your head for a day or two and then come back here and read the rest of what I’ve written. It will still be here but if you read on now you wont have the pleasure of your own thoughts first.

Seriously. See you tomorrow.


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Welcome back. I hope you genuinely enjoyed the question. I want to interrogate my own thoughts with you in the hope they are similar to your own but I’d also love to hear any unique thoughts you have in the comments. Firstly I wonder if your early thoughts were about the notion of bias. Is fairness a similar thing as unbiased? You may have asked this question with the assumption that, if lacking bias is what you mean by fairness in this situation, certainly the judge shouldn’t know you. To know you is to be biased towards or against you.

But is this always true? Aren’t there many people who are biased against Muslims for example precisely because they don’t know any? If you, as a Muslim, stood before a random Anglo-Australian on the street as your judge, you might suspect they would be less biased against you if they knew you as a person rather than simply knowing facts about you, like your religion. So maybe the relationship between being unknown to your judge and a lack of bias doesn’t exist anyway.

That would mean that a judge who doesn’t know you only really brings an impression of being unbiased. This seems an inadequate description of fairness. Given time I imagine the word fairness would give you more and more trouble. It can be a fuller, richer word than we first concede. Is it fair that Joe Bloggs goes to prison? Can we answer that only knowing what Joe’s crime was and what the sentence for such a crime usually is? Do we need to know Joes whole story from birth? Or is it something in between these extremes; A mile long walk in Joes shoes, whatever that means?

You may have felt a need to confess; maybe those who know me actually know me the least for it, maybe I fool the most the ones who know me the best. This is where we need to define knowledge. I’m not referring to a judge who plays golf with you, a judge who has been to your house or a judge who you used to do grafitti runs with – the kind of social knowledge that creates reciprocal obligations even between people who couldn’t provide a paragraph towards a eulogy for each other. I’m talking about accurate knowledge of your strengths, limits, foils and capabilities. I’m talking about the ability to not be fooled by you – to know when you really need some slack cut for you and when you are just slacking off.  This idea of knowledge also requires the knower to be miraculously immune to bias. If they distort what they know about you so that the picture they make from it is untrue this wouldn’t be perfect knowledge.

With this idea of knowledge in mind I believe that perfect knowledge is essential for perfect fairness. I would go further to say the more our judges knowledge of us approaches perfection the more fairness we can expect. This knowledge might not agree with our own self-perception. I can imagine someone else knowing me hypothetically at least better than myself. Certainly at times I can be very self-deluded, sometimes stuck in hopelessness and sometimes thrilled with confidence and an external mind can see that my situation hasn’t changed with my mood.

Perhaps like me you thought that maybe you don’t want the judge to know you even if fairness is the result. We might all rather be sent to jail by a stranger rather than lose a friendship over it. Maybe we don’t even want perfect fairness anyway. Fairness is kind of a terrible thing. If the judge doesn’t know you then you can say that the judge made the fairest decision they could but they didn’t know the whole truth. Nobody wants to be treated deliberately unfairly, that offends us, but accidental unfairness is not that. Perfect fairness robs you of the ability to grizzle at the sentence you receive in the end. Perfect fairness robs us of our self-delusions.

How beautiful does that sound though? To be robbed entirely of our self-delusions. The terror of it is overshadowed by a sense of relief. Pretense and self-doubt, born of being unknown, is a burden. If the price of this moment of being both perfectly known and given our sentence is the consequences of perfect fairness then I don’t see how we can refuse to pay. Imagine a community of people who willingly rejected this exchange. How empty would be anything they have to say about themselves and how qualified would their freedom be given its reliance on turning away from an opportunity to receive perfect fairness? By comparison there is something actually holy about the words “fair cop” uttered by the person receiving a truly fair but harsh sentence and how genuinely freeing would a pardon be if it was based on perfect knowledge.

This idea of perfect fairness from perfect knowledge was always a profound attractiveness of the Christianity of my youth. God who knows us completely will one day be our judge. Somewhere someone even told me of a picture of heaven in which everyone's sins were shouted from the roof tops. I can’t imagine this without cringing. I will never probably be brave enough to make this happen in my life, a mumble from my rooftop is more likely. This is despite my suspicion that you and I probably are the same long distance from perfection regardless of our fronts. But this is what Christianity offered – the chance to realize this suspicion one day and not only experience the perfect knowledge of God but to share in a community of people perfectly knowing each other.

To bring together this ethical value of closeness with Christian theology is to produce some interesting conclusions. A God who knows us is a better judge than a distant one. A God who judges from afar, first reading our name with incorrect pronunciation from a book on our judgment day, is pretty much ignorable. They might be biased against us or fooled by our suit on the day. But a God who travels with us and shares in all of our life, knowing our story from birth, offers us something precious in their judgement, something we never know if we can even give ourselves. Whether this seems feasible to us, it is pretty cool. It puts a different spin on the purpose of the incarnation even. It suggests that God must know what is to be a woman, a poor person, a rich person, a grieving parent, a spoilt child, an alcoholic, a sinner like the rest of us. It promises everyone that they will one day be able to say with all their heart, "fair cop."

Now or Later: Distance as an Ethical concept.

In my last blog post I tried to defend the legitimacy of saying that a behaviour “is mean”. I was arguing that saying something is mean (or unkind) is more than just the equivalent of blowing a fart on your hand and kissing it at someone. Saying that something is mean is saying something. In particular I argued that saying something  is mean is as legitimate if not more so than saying we shouldn’t do that thing for X or Y reasons.

In making this claim I assumed a range of the thoughts that have been a part of previous posts I’ve written. To make them explicitly:
1. Morality as a purely logical system of premises doesn’t work. There simply is no logical argument against “I don’t care”  which can be leveled against any primary premise. Concern is the root of all Morality and its a “leap of concern” as to why we should possess it.
2. Empathy is the particular type of concern I consider most relevant to any conversation about morality between people. Empathy-led ethics is my term for ethics which is specific and messy and values proximity to the subject. It doesn’t preclude looking at consequences or holding to ideals but it identifies these things up close with others. It doesn’t believe in working out consequences and ideals away from others.
3. Proximity and Distance. These are very important concepts in Empathy led ethics. Distance can be distance from the person and the situation but it can also represent the distance between a metaphor we are using and the actual act we mean it to refer to. An example of this is “you wouldn’t steal an old ladies purse” as an argument against illegally downloading a movie. The distance between the two acts tells us this is not an empathy led ethical argument. General ethical principles and rules allow us to maintain distance and the more general the rules, (a rule against all stealing rather than all downloading or even all illegality rather than all stealing) the more distance is enabled.
4. Distance can also be in regard to time and this type of distance was the key concern that motivated me to write the last post. The more consequential our moral reasoning the more distance we have from what is happening now and potentially the less empathy. We can justify behaviour we can barely look at because our gaze is on a distant future which makes it all right. This needs to be resisted.

This last point might be the most contentious. After all a person who doesn’t consider any future implications of their actions wouldn’t be able to make a coffee because what on earth would getting the cup out be for (and wouldn’t that be a tragedy my morning brain thinks). Even without going to such a logical extreme what drives anxiety sufferers to panic is living too “in the moment”. This is why the phrase “this will pass” can be a powerful cognitive tool to cope with stress.  We tend to place on a hierarchy from wise to foolish those who can think about the future to those who cant. Certainly the Ant, although a little dull, is considered more adapted to life than the Grasshopper.

But this type of morality has failed us over and over again in a way that I find particularly disturbing. We are all embroiled in perpetuating injustices which cannot be broken because of “what if” scenarios. The homeless are homeless because “what if” we just built homes for them. Countless millions are spent on submarines because “what if” we didn’t. Debts can’t be forgiven or, in the case of what Australia owes its first inhabitants, can’t be recognized, because “what if” we did. We are so constantly frightened of loosing anarchy upon the world that we are bound into obeying structures that we hate. In post after post I have tried to indentify this entrapment and seek its philosophical remedy.

My greatest loathing is reserved for when we make terrible compromises in the vain hope of future bliss. I make this statement despite knowing of studies that have shown that the capacity to delay gratification is a marker for both material success and happiness. The marshmallow test (see the above clip) is well worth a look, if only because kids yielding to sweet temptation are just too darn cute. Such cuteness is tempered however by the ominous predictions for those who can’t wait for pleasure: addiction, crime, divorce and early death. Better to work now and play later. Eat your veggies before your desert. Be the kid who saves.

I feel these mottos make their point by looking at the problem at too small a scale. When we pan back we see that delayed gratification is also internalized oppression. To accept justice delayed is to accept justice denied. The terrible promise of scientific and economic progress is a world of harmony and equality. What makes the promise terrible is that just one more period of unemployment, one more cut to health or education, just one more wall built around our diminishing prosperity, one more power to the surveillance state or one more war, is required to get us there. And then one more again. And then one more. Obviously one day we will have a world in which refugees wont live in cages but only if we build the current electric fences higher. Young people must be willing to work for free if we are ever going to solve their poverty. It’s insane.

Certainly it is possible to phrase many of our problems as not being future minded enough. We divide the planet now as if we won’t need to live on it in a decade. Even our detention of refugees doesn’t think ahead to what might happen if we became refugees. I could take this tack and trump those who claim to speak for the future with a bigger picture of the future than them. This is an interesting aspect of moral speech. We can find different routes to the same destination. If I sometimes take these different routes though, I find them unsatisfying, like a cyclist on the bus due to a flat tyre. I prefer to struggle to express all ethical considerations as a part of the immediate – that the possibility of us being future refugees can be experienced instead as the moral sense that we are the refugees now through a shared humanity.

Part of my reason for not wanting to rely on the future in ethical arguments is that hypothetically at least the future might not happen. If we imagine ourselves at the very end of the universe I think we should still be able to say putting a cigarette out on a childs arm is wrong. The wrongness doesn’t depend on the child being traumatized as an adult or any other future consequence. It certainly doesn’t depend on the idea that we might one day be vulnerable and defenceless as we age. If all those possibilities were certainly not going to happen this shouldn’t change the moral weight of our action.

Perhaps if I was a better philosopher I could distinguish between the sorts of consequences I think should inform our present moral choices and those I want to avoid. I think planting a tree next to your house needs to take into account whether the shade is in the right place and whether the roots will damage your pipes. That’s thinking of the future. But there is something deeply inauthentic to me about many applications of future thinking to our human ethics. Take the safe schools program. I can deal with arguments about whether the program will diminish or even increase bullying. I just can’t deal with the idea that we need to be concerned that bullying leads to anxiety and stress in adults. I’m sure it does but even if it didn’t bullying would be wrong. Otherwise where do we end things? Do we need to indicate some consequence of anxiety in adults before we care about that too or can we stop there? And would it be okay to bully if bullying actually “built character” in some positive way?

Still these logical challenges are besides my main point. Why I fear distance and praise proximity in ethics is pragmatic. Ethics in history has been a lurching from one authority to another. From heart to head we toss with the violent excesses of one Romantic revolution replaced by the death worship of Economic Rationalism. Neither guides us true. Fundamentalists rush in here and say they have the answer beyond our heart or head but history has emptied their claim of difference. They also have blood on their boots. Everywhere that peace has broken out it seems to me that getting to know ones enemy has been crucial. We may hurt each other when we know each other but I think it is harder to do so and much easier to live rightly by each other.

How does this value of proximity relate to whether its defensible to say that something is mean? Poorly perhaps. The example of spanking used in the last post was an example given to my eight year old to explain a conversation I was having with my partner about same-sex marriage. Is it meaningful to say that denying marriage to same-sex couples is mean? Should we accept that such language is unfair to opponents of same-sex marriage? I think we should resist any direction that consequential reasons, and general principles are the only types of legitimate moral speech. I think we need to try and stay within the immediate situation and consider what would happen if the opponents of gay marriage and a gay couple who wanted to get married knew each other. I suspect nobody would stop the marriage because it would too obviously be mean.

"I think spanking is mean."

Long term readers of this blog will know I have a co-philosopher. For her privacy I refer to her simply as the kid. She’s eight now and despite her claiming to be a tween I maintain she is a kid still.

Recently I asked her, “What if I knew someone who loved their kids and who felt the best thing for those kids was to spank them, would it be ok for me to say to them “I think spanking is mean.”

I added that I did feel that spanking was mean so my statement would be an honest reflection of my feelings. After some thought the kid told me “It would be better to say, “I don’t think you should spank kids because…” and then give some reasons, because calling them mean will just make people feel guilty and bad.”

I asked, “Don’t I want them to feel guilty and bad? I want them to feel guilty about spanking so they won’t do it.”

The kid replied, “If they feel guilty they’ll probably still do it and they might even do it more because they’re angry.”

This is an eight year old so I am not suggesting we take her word as that of an expert. She has only just starting watching Dr. Who, and doesn’t even have any idea about Star Trek, so we can reasonably suspect her philosophy is shallow at best. However does she have a point? Or rather does she have two points:
1) Telling someone a behaviour is mean is not effective at changing their behaviour.
2) We can and should find arguments against behaviours other than just saying that they are mean.

This second point needs to be interrogated because, the kid failed to tell me how to finish her alternative to “spanking is mean”. This is no accident. Providing reasons for moral positions is not simple. Some people even argue it can’t be done: that moral language is essential a statement of preference. This can leave us able to make appeals to empathy, i.e. “You wouldn’t like to be spanked would you?”, but leaves us with little by way of logical premises to build an objective case. Pragmatically this dilemma makes too much of the possibility we won’t share some basic assumptions that we can argue from with other people. I do however concede that strictly logical ethical arguments don’t really go anywhere and I do believe that empathy is more crucial than logic to ethics.

My other concern with finding reasons not to spank is that we often mistakenly limit ourselves to certain type of reasons. These reasons are consequences, essentially a justification of one part of our life in terms of another. For example; It is good to exercise because it makes a person fitter. It is good to be fitter because you can be a better lover. It is good to be a better lover because sex is important to maintaining a relationship. It is good to maintain a relationship because this provides a stable place to raise children (or at least garden).  The reason for each choice is not contained in the choice but in some far off set of circumstances – nothing is ever done for its own reasons.

Is there any point in this chain of consequences when you felt a bit echh? Did you wonder whether having sex “for the kid’s sake” was the sort of justification that just might have you running from the bedroom? Or does it creep you out a little that the enjoyment of jogging is treated as secondary to the benefits of jogging to one’s relationship? I think there is a disassociation involved in constantly having these sorts of justifications in our head that constitutes a betrayal of the act we are committing. Does it make sense that we can betray or be disloyal to an act? An actor on the stage knows this is so. There is something tepid and dull about a performance that isn’t committed to. A life lived according to justifications that are never in the moment seems to me to have the same distracted quality.

In contrast to this saying that spanking is mean is riveted on the moment. I’m not saying “Don’t spank your kids because if you do they will hit other kids.” In fact even if spanked kids don’t increasingly hit other kids I’m saying don’t spank them. After all if your own kid’s pain is irrelevant why all of a sudden does some other kid’s pain matter? That other kid is not even real – merely hypothetical. The encounter with them may never even occur. So how on earth does whether they get hit have more value than the interests of the kid who is actually being spanked when the decision is actually being made?

There are two problems that stand out for me  however with the statement “spanking is mean”.  Firstly its unclear what I am referring to. Do I just mean the feeling of being a bad person? If so then being concerned with the meanness of any act is arguably quite selfish. This is possibly people’s biggest counter argument against calling behaviour mean or for that matter cruel. It can sound like someone is simply wanting to live in a fantasy where they are always liked and never have to say no to anyone. This doesn’t treat other people with any genuine concern, hence the saying “you need to be cruel to be kind”. Even that can be an overstatement of the contradiction. Sometimes my children’s “naughty” behaviour is a transparent ask for some limits where I can say “it felt cruel to put her to bed so early but I could tell she desperately wanted me to.”

If this feeling of being a bad person isn’t what I mean by “being mean” what am I talking about? It’s not easy to articulate without referring to consequences beyond the immediate situation which I want to avoid. I think there is something to “being mean” about failing to identify with the other person’s personhood. Not “being mean” means rejecting the notion that the other persons fear and pain are simply levers you can manipulate: the other person has a genuine mind which has to be engaged with. In particular, meanness is unconcerned with the other minds’ enjoyment of life in a good and healthy way. Meanness dismisses this as unimportant. Calling someone mean is calling them to respect this enjoyment – to share in it even.

The other problem with saying “spanking is mean”, and this impacts on its effectiveness, is that it just doesn’t correspond to the spanker’s reality. Here the spanker may be confusing meanness with cruelty. Cruelty relishes in the pain of its victims. Meanness not so much. However still the spanker may be behaving out of a sense of gruesome duty that goes beyond just avoiding being cruel. They may not be indifferent to the recipient’s pain and fear. They may deeply dislike causing this pain and fear. In that context even meanness seems a profoundly unfair sentence to pronounce.

If this is the situation then it might be properly characterized as everyone accepting that the behaviour is mean, even if using that language would not be good politics. At least everyone would agree that without any extenuating circumstances the spanking would be mean. This is when an argument might take place that seeks to disprove  those consequential reasons that justify the meanness. However this is not the same thing as producing consequential reasons not to spank. There doesn’t need to be any benefit to not spanking. The reason not to spank remains located in the moment: It remains that spanking is mean.

This is, according to my logic, describes where arguments over vaccination also belong. Although I am pro-vaccination and anti-spanking, vaccination would surely be as mean as spanking without any extenuating circumstances. It is just that to my mind the extenuating cicumstances make it alright. Does it make sense then to say that when I vaccinate my kids I am being mean, just with good reason? I’m not sure if I want to say it does. I have to admit that an anti-vaxxer who tells me I am being mean by vaccinating my kids has not led with a convincing argument. As my kid correctly guessed it is probably just going to make me angry.

Not politically then, but philosophically, I am disputing my eight year old’s claim that we shouldn’t say spanking is mean. This is despite being immensely proud of her for an attitude which is at odds with our culture. There is a lot of calling people mean on social media today and it sets the tone for other conversations too. Labeling other people as mean also seems to provide the license to not only be mean to those people but to be outright cruel. In this regard we need to really hold on to the difference between saying that an action is being mean and saying that a person is a mean person. Some are, but not all who spank are, certainly.

On the other hand maybe I’m wrong. Maybe all I’m doing is arguing for some sort of anti-rational romanticism, a rejection of the common sense that life shouldn’t be lived only for a moment at a time. I do think there is a time for irrational romanticism to be sure. The gut knows what the head can become confused over. As we’ve seen with Australia’s horrific detention camps supposedly saving people from dying at sea, consequential reasoning can justify anything. But equally following one’s gut leads to its own excesses. Heads often roll. So don’t let me have the last word, let’s have a conversation instead. Tell us your thoughts in the comments.