Sorry about the long silent stretch. I’m still in Europe and once my laptop was stolen posting became much more trouble. Besides living with a philosophy girl gives me a certain output from these impulses. However, certain issues keep coming up in our discussions, i.e., I keep objecting via these concerns. Since it will probably take awhile for me to finish the entry I will put it up in draft status for the moment so anyone who wants to chime in and suggest theories can do so.

One such example is what exactly do we mean when we talk about a procedure or a reason someone did or should do something? Of course one immediately suspects these words have several different meanings in different contexts and I won’t insult your intelligence by pretending they don’t and walking you through some examples. However, even within a single context both of these words seem quite troubling and I think careful attention to these details shows much legal philosophy and discussion to be misleading or at least mistaken.

For instance consider the question of what procedure a judge should use to decide questions of law, e.g., what are the correct criteria for a judge to consider when ruling on a question of constitutionality? Now if we take a procedure to be just any mapping from situations to actions the answer is simple and trivial, ‘the judge should rule in whatever way has the best outcome’ (unless specifically noted otherwise outcome is to be interpreted broadly and include obeying non-consequentialist strictures).

This isn’t just a pure puzzle at the meaning of a word, it has significant consequences. This argument started over whether a paper written about what procedure judges should use to interpret the 8th amendment could be philosophically (rather than just empirically/psychologically) substantial. Supposing one isn’t just debating the basic moral tenets (in which case saying it was about the 8th amendment is kinda misleading) but has some fixed moral theory in mind the entire question devolves down into one about the meaning of procedure. This is not just an isolated case either but the norm in legal articles and since questions of procedure are distinguished from absolute questions of correctness it isn’t a practice which can easily be abolished.

Related to the puzzle of ‘procedure’ we have the puzzle of ‘reasons’. What is it to say something was ‘a reason’ that one did something? One might at first think a reason is just some considered factor without which the action in question would not have been taken yet one can have defeasible reasons. Also one might quite reasonably (sorry) say both “one of the reasons I went to the mall was to return this shirt” and “I would have gone anyway even if I didn’t need to return the shirt.” This too has non-trivial consequences. We think for instance that it is bad for a reason for a judges decision is that he doesn’t like sending pretty woman to jail, even if he would still have suspended her sentence if she wasn’t pretty. On the other hand we don’t have much of a problem if a judge just feels relieved/happy he didn’t need to send a pretty woman to jail.