Justice Everywhere

a blog about justice in public affairs

Category: Punishment

Should we grant legal personhood to robots?

With significant recent advances in artificial intelligence and robotics, it is increasingly pressing that we consider the legal and ethical standing of autonomous machines.

Here I post some considerations on this matter from a recent debate organised by Thomas Burri (University of St. Gallen) with Shawn Bayern (Florida State University) and myself:

A Moral Case for Strikes against Syria? Part II: Punitive Strike

In this post, I explore the punitive justifications for the recent strikes against Syria in response to the alleged use of chemical weapons. In the previous post, Sara was right to call into question the HI justification for the strikes provided by Theresa May. Indeed, even if one could assume that the strikes could satisfy the just cause criterion (and this is a big if), it’s doubtful that other ad bellum criteria could be met (proportionality and reasonable chance of success). The situation is Syria is complicated with multiple parties involved, either directly or through proxy. It is, therefore, difficult to determine what success would mean in this context and, correspondingly, what would be counted as proportionate force. I think Sara is right that the strikes could not be justified on the basis of HI. But, I ask, are there any other justifications for these strikes?

Traditionally, just war theory is highly restrictive with regards to what counts as just cause to turn to war. According to these requirements, only war of national self-defence (or in other-defence) can trigger a just response to the use of force. Recently, HI has been accepted as another justification but, overall, just war theory is restrictive rather than permissive. However, Michael Walzer – whose ‘Just and Unjust Wars’ is considered the seminal text on the ethics of war – believes that limited force should be seen as morally distinctive from war. In short, if traditional just war theory is restrictive in what injuria, or wrongdoing, can justify the use of force, the doctrine of limited force – jus ad vim – can justify military force in response to a wider range of threats due to the limited nature of the force used. Limited force is different from war in that the former lacks the latter’s ‘unpredictable and often catastrophic consequences’. It is, therefore, easier to justify than, say, a full-scale war.

Acknowledging the differences between war and force-short-of-war is crucial in understanding the justification for the recent strikes on Syria. This is so because on the traditional reading of just war theory, only self and other defence or HI could justify the use of force. Force-short-of-war, however, is more permissive and, thus, could satisfy other just causes where traditional just war theory cannot. The question now becomes what could possibly be the reason(s) for the strikes jointly conducted by the US, UK and France? I think there could be two possible just causes: punishment as retribution and punishment as deterrence. I note here that even though both retribution and deterrence come under the umbrella of punishment, they require distinct justifications.

With respect to the former, the justification would be that the Syrian regime deserves to be punished for the injuria caused. The strikes act as retribution to the alleged use of chemical weapons (subject to the rule of proportionality which I will address shortly). Regarding deterrence, the strikes could be argued as necessary to uphold the international ban on the use of chemical weapons. Deterrence, in this sense, could also be understood as not limited to the Assad’s regime but also to signal to other regimes that the use of chemical weapons will not be tolerated.

Do we have reason to believe that the strikes were to punish Assad? I think we do. First, the strikes did not seem to fit with any broader, long term American, British and French objectives in Syria. The main aim of the military operation in Syria (bar the strikes) led by the US has been to nullify the threat of the Islamic State (ISIL) and other designated terrorist groups. A secondary aim is to provide support (financial, logistic, and training) to selected rebel groups. Prior to the strike in April 2017, there was no recorded deliberate attack of US-led forces against the Syrian’s regime. This can be explained by the West’s hesitation to escalate the conflict and risk a direct confrontation with Russia and, to an extent, Iran. The targeted strikes on the 14th of April, then, were out of this context. The targets were directly linked to the Syrian regime’ chemical weapons programme. Thus, it’s logical to think that the strikes were, in fact, retributive punishment to the Syrian’s government for the use of chemical weapons. Furthermore, the strikes seem to uphold what former US President Barack Obama said was a ‘red-line’ for the Assad’s regime (a red-line which Obama failed to uphold). This is consistent with the strike in April 2017 when Trump ordered the US Navy to launch 59 Tomahawk missiles at Shayrat Airbase in response to the Khan Shaykhun chemical attack. The message seems clear: international norms on the use of chemical weapons must be respected. Failure to do so would result in military strikes to deter any state or non-state actor from using it in the future.

Thomas Cajetan, the 16th century Italian philosopher, once said wrongdoing demands vindictive justice, even in the form of force if necessary. If we think that the use of chemical weapons on civilians constitutes a wrongdoing (of a special kind), then limited strikes (force-short-of-war) to punish the wrongdoer could certainly provide a just cause.

In what remains, I sketch my thoughts on whether the strikes could satisfy the requirements of proportionality and success. If we think that the strikes were only to punish Assad, we need to ask whether the harms caused by the strikes were proportionate punishment to the initial wrongdoing, namely Assad’s use of chemical weapons (one cannot carpet-bomb a country in the name of justice). No civilian casualties were recorded, there’s no report of leaking chemical materials after the strikes, all targeted sites were of military targets and not dual-use facilities (those that can also be used for civilian functions). This suggests that the harms caused by the strikes were not disproportionate to the realisation of justice. The criterion of success, I hope, is clear in this case as it’s defined by the acknowledgement, and affirmation, that a moral wrong was committed and this demands some forceful response.

The case becomes less clear if the strikes were intended to deter Assad from further use of chemical weapons. As Sara convincingly put in the previous post, it’s unlikely that Assad would be deterred from further uses of this kind of weapons absence significant presence of troops on the ground. Any force used, then, would fail the success criterion and therefore be disproportionate. One could ask, even if Assad would not be deterred from using chemical weapons but maybe other state and non-state actors would think twice before using these weapons? If that’s the case then, perhaps, there are some deterrent effects the strikes could bring. I think this is possible but for this to work, there needs to be an uncompromising rule where any use of chemical weapons would be met with the same forceful response. Failure to uphold this rule would result in the diminishing deterrent force of the strikes. In this sense, the strikes are justified because the ban on chemical weapons is a good thing to uphold, the question of whether Assad himself would be deterred is irrelevant.

Of course, in an ideal world, we do not want to give state the judicial role regarding when to punish other states for wrongdoings. However, given an UN Resolution would likely result in a deadlock and previous attempts to strip Assad of his chemical capabilities were unfruitful, the duty to act sometimes falls on individual states. Military actions-short-of-strike should be strictly governed by the rules of jus in bello (perhaps even a stricter regime) and uphold the safety of non-combatants, as were the case in the recent strikes. Thus, I think that the strikes could be justified as punitive force.

Criminal (in)justice and social contribution

The latest figures show that the proven reoffending rate for adult ‘offenders’ released from custody between April 2013 and March 2014 was 45.8%, with those who served sentences of less than 12 months having reoffended at a rate of 59.8% (Ministry of Justice, 2016). These kinds of statistics mean that increased attention has been directed towards understanding the reasons why people stop offending – largely in the hope that this evidence will support the design of reoffending-reducing reforms (see, e.g., the Discovering Desistance project). Another recent Ministry of Justice report brings together much of this research in its compilation of a list of ‘desistance factors’ in response to the question: What helps individuals desist from crime? (‘Transforming Rehabilitation’, 2014)

MarkoLovric at Pixabay (CC0 Public Domain)

MarkoLovric at Pixabay (CC0 Public Domain)

Two of these factors are of particular interest, given my purposes here: (i) ‘having something to give to others’ and (ii) ‘being believed in’ (see below for a brief account of each, respectively; and see Table 2.2 for the full list).

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Mass incarceration

One thing that I learned as a PhD student at Oxford was that philosophically interesting questions and questions about existing injustice do not always overlap – some existing practices are so obviously wrong from a normative perspective, I was told, that there is no point in writing normative theories about them. This seems right for certain cases, but I still haven’t quite made up my mind about whether it is always true.

I remember this Oxford seminar while reading this utterly depressing piece about incarceration and its effect on black communities in the U.S. in this month’s issue of the Atlantic.

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Are we socially (and not just legally) obligated to presume innocence?

Content note: this post contains and links to discussions of rape and sexual harassment.

Social attitudes towards rape and sexual violence and harassment have over the last few years been undergoing what Laurie Penny has aptly called ‘rape culture’s Abu Ghraib moment’. From Steubenville, to Jimmy Saville, and academic philosophers, we have been confronted with both how widespread rape, sexual violence and harassment is, and how awfully this is dealt with by the police, courts and institutions. Closer to home for me, a few months ago the Oxford Union president was arrested for rape and attempted rape (the charges were later dropped). This resulted in a campaign to have him resign his position as president and for invited speakers to cancel their appearances until he did. The ‘public intellectual’ A.C. Grayling however refused to cancel his appearance, saying that the president was innocent until proven guilty and should not be tried in the ‘kangaroo court of public opinion’. This has become a common response to accusations of rape (with ‘kangaroo court‘ the favourite and somewhat tired description). The alleged rapist, it is argued, should not be subject to social sanctions and society should reserve judgement because of the principle that people are innocent until proven guilty.

I vehemently disagree with this. But when challenged I have in the past been somewhat unsure of my reasons for disagreeing. One argument is that though innocent until proven guilty is an extraordinarily important principle, it is primarily a legal principle. That means it applies to the courts and the legal process of convicting someone of a crime. If someone is to be subjected to state punishment (from fines, to jail, to being executed), then they have the right to be presumed innocent until proven guilty so that the obligation rests with the prosecution and not the accused to prove guilt beyond reasonable doubt. It is however not clear that public condemnation of an alleged rapist should be subject to the same principle. As has been pointed out the so-called ‘kangaroo court of public opinion’ is not actually a kangaroo court. A kangaroo court (such as white lynch mobs) disregards the standards of a fair trial to punish the accused. Public discussion and condemnation does not (usually) seek to actually replace the legal process and determine guilt and then exact the kind of punishment normally reserved for the state.

But I am unsure of this argument. First, it relies on a kind of reasoning where the legal and social is entirely divorced that I would normally reject. I do not for example accept the absurd argument that women, queer people and people of colour have achieved equal status on the basis that many (but certainly not all) legal discriminations have been removed, because this is undermined by the continued existence of social oppression upheld through patriarchal, white supremacist and heteronormative norms. Second, public condemnation and discussion is not the whole story. Social sanctions, which include being personally or professionally shunned and being removed or temporarily stepping down from public positions, are graver than public condemnation and can approach state punishment in the consequences for the accused. Trying to argue that carrying out these kind of social sanctions does not punish the accused in the way a court does, seems unconvincing. Justifying it requires more than saying that innocent until proven guilty is just a legal principle.

I think the more convincing defence of public condemnation and social sanctions, and thereby overruling innocent until proven guilty, is based on the flawed legal processes and social attitudes that surround rape and sexual harassment and violence. Rape culture and its associated myths infect every step of the legal process from the police to judges. Combined with the social shaming and condemnation of victims, this mean that rape remains (as the graphic above shows) a dramatically under-reported, under-prosecuted and under-sentenced crime. In the absence of a correctly functioning legal system and societal attitudes that support victims I think it is therefore justifiable to publicly condemn and socially sanction alleged rapists and harassers. Of course this will vary from case to case, based on which crime they are accused of and the actions taken by the institutions that are supposed to deal with it, and there is no easy formula for this. I think that these actions are however necessary to challenge the ideas embedded in rape culture and replace them with the kind of norms and institutions that would seriously reduce the prevalence of rape and harassment.

In closing it is worth reflecting why people place so much emphasis on innocent until proven guilty when it comes to rape and harassment. I suspect that this is in fact one more feature of rape culture. At its heart rests the profoundly mistaken view that false accusations of rape and harassment are rife. I think we should remember that insisting that the accused is innocent until proven guilty, is so often based on the assumption that the victim is ‘lying until proven truthful’. To counteract that, I think it is central to believe and support victims. As Stavvers has convincingly argued:

‘Silence is the biggest weapon patriarchy has in keeping rape culture alive, and “I believe her” starts to tear down this wall and encourage and empower survivors to speak out. Because of this, it is crucial that we resist the attacks on this notion, the slurring it as “mobs” and “kangaroo courts”, because it isn’t. It’s solidarity in the face of patriarchy, and we should be proud that it is starting to terrify those who would rather we shut up.’

Should Snowden go back to America?

Source: Wikimedia Commons http://en.wikipedia.org/wiki/File:Edward_Snowden-2.jpg  

Mr Snowden violated US law. He should return to the US and face justice,” argued a senior White House advisor. That attitude reflects the reaction of many in the American and British security establishment to Snowden’s leaking of classified documents detailing the mass surveillance programs of the US and British governments. Currently Snowden has temporary asylum in Russia, which is due to expire at the end of July 2014 (though I’m still hoping Germany might do the right thing and offer him asylum). There are however I think broadly three reasons that could be given for why Snowden should instead go back to America and face trial, only one of which has I think has some plausibility, though I think its overridden by other considerations.
First, some might argue that Snowden should go back and face trial because he harmed national security. This is the kind of argument made by the security services themselves and their political allies. The head of Britain’s MI6 for example said that the UK’s enemies were “rubbing their hands with glee” at Snowden’s revelations about spying practices. I think this kind of argument is entirely wrong. Not only should we be sceptical that national security, as it conceived by the US and UK authorities, is something to be protected. But as Glenn Greenwald shows in his excellent replies to this BBC interview the supposed harm done to national security is unproven, and most likely untrue. ‘Terrorist’ groups for example already know that everything they do is subject to intense monitoring by the security services. It is also an attempt to distract from how these surveillance programs have invaded the privacy of innocent people. Furthermore, we should always question official claims of harm done to national security if those same officials deny the public access to the information required to evaluate those claims.

Glenn Greenwald on BBC Newsnight
A second kind of argument doesn’t claim that Snowden did anything wrong but argues that if you carry out an act of civil disobedience you should be prepared to bear the legal consequences of it. It is often thought that even if breaking an individual law (such as leaking classified documents) can be justified for conscientious reasons, you are still have an obligation to the overall legal and political system. This means that you should stand trial as a way to show both your disagreement with the specific law and your commitment to that system. But as Kimberley Brownlee points out it is not clear that willingness to accept punishment is really an essential part of civil disobedience. In many cases of civil disobedience there does not seem to be any obligation to the overall legal and political system because that system is so unjust. This is definitely true of the US during the period of the civil rights movement (often thought a defining case of civil disobedience) and it is, I would argue, still true of the US today. The enormous levels of economic inequality, the extensive and institutionalised racial and gender injustices, and the military and economic actions of the US across the world, mean that citizens (such as Snowden) do not I think have an obligation to the US legal and political system.
A more plausible version of the previous argument is that Snowden should go back because this makes it more likely that people will take his views more seriously and challenge the surveillance programs of the state. This is essentially a strategic argument about what is most likely to convince people. A frequent reaction in the American press has for example to point to Snowden’s supposed ‘hypocrisy’ in asking for asylum from an authoritarian regime like Russia (it is frequently forgotten that Snowden was forced to stay in Russia because the US withdrew his passport). Returning to America, it could be argued, would make it easier to counteract this kind of argument and make the case against state surveillance.

While I think this is the most plausible argument (because we desperately need a campaign against the surveillance of the state) I don’t think its decisive. Its not clear to me that if Snowden would go back that it would make that much difference to the debate. There is an enmeshed security and media establishment in the US (and the UK) that is dedicated to the destruction of his credibility. Furthermore we have to consider how terribly the US has treated other similar whistle-blowers, such as Chelsea Manning. She was subjected to 11 months of solitary confinement, which the UN special rapporteur on torture described as “cruel, inhuman and degrading treatment” that “could constitute torture”, and she has now been sentenced to 35 years in prison. Given that Snowden could expect similar treatment I think he is justified in staying as far away as he can.

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