The most commonly raised criticism against the national consensus test of the ESD doctrine is that it constitutes an ongoing saga of judicial activism. Judicial activism occurs when a judge/justice upholds his or her own political, legal, religious, economic, or other beliefs contra society, thereby substituting the objectivity of existing laws for the subjectivity of personal preferences. Some may not feel that judicial activism is all that subversive. But judicial activism not only forces the judge/justice’s will on the people, but also it can greatly limit the legislative branch’s ability to function. The blurring of judicial and legislative lines can result in political stalemate, voter apathy, and a general distrust of government. Kimberly Bliss comments that under a democratic system “legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people” since the former has more contact with the people and has, in theory, been elected by the voters (1334).
Category Archives: Social and Political Philosophy
In 2008, proponents of capital punishment for rape believed they had a winning case that would allow the use of capital punishment for some nonlethal crimes. Patrick O’Neal Kennedy from Harvey, Louisiana was sentenced to death after he was convicted of raping his eight-year-old stepdaughter. The rape was uncommonly brutal in its severity. The injuries that Kennedy’s stepdaughter sustained from the repeated rapes required emergency surgery. Kennedy initially maintained that the battery was committed by two neighborhood boys. He even refused to plead guilty when a settlement was offered to spare him from a death sentence. In 2003, Kennedy was convicted and sentenced under a 1995 Louisiana law that allowed the death penalty for the rape of a child under the age of 12. The Court did not share the same optimism that proponents of capital punishment did. The majority, relying on the precedent of the ESD Doctrine, overturned the death penalty since the rape, though it did involve a child, did not result in the death of the victim (544 U.S. 407).
The Historical Development of the Evolving Standards of Decency (ESD) Doctrine in the U.S. Supreme Court
One of the most controversial elements of the U.S. Bill of Rights is the Cruel and Unusual Punishments Clause of the Eighth Amendment which states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (U.S. Const. Amdt. 8). Whether the use of the death penalty is an instance of cruel and unusual punishment has been the subject of sustained and intense debate given that there have been over 16,000 legal executions in the United States from 1700 until 2019 (TIME). Continue reading →
From Haidt’s impassioned rejection of the “rationalist delusion,” it is difficult to discern why Schwitzgebel and Rust would place such significance on the aforementioned behaviors as they pertain to ethicists versus non-ethicists. There are more morally egregious behaviors that ethicists could engage in would serve to overwhelmingly confirm the fact that they do not act more morally than others despite their professional status as moral philosophers. Yet, in the various articles published by Schwitzgebel and Rust, very little explanation is provided as to why these are truly relevant to determining whether moral philosophers behave better than those who may not have as extensive training or education in moral reasoning. In an article about the library habits of ethicists versus their non-ethicist counterparts, there is only one sentence provided as to why failure to return library books is bad (Schwitzgebel 714). Rather than justifying their choice of moral behaviors to research, Schwitzgebel and Rust spend most of their published articles explaining the methods they use.
In his work “The Righteous Mind: Why Good People are Divided by Politics and Religion,” social psychologist Jonathan Haidt coins the term “the rationalist delusion” to explain a tendency of a majority of scholars to overemphasize the importance of rationality in human behavior throughout history (103). Haidt claims that the “worship of reason,” particularly within the realm of morality, is essentially inappropriate and he utilizes the rest of his book to advocate for a different version of moral reasoning and decision making processes based more on emotive intuitions that are dominant (103).
One feature of Western medicine’s social institution that serves to maintain authority/power in the hands of the physician is insulating the layperson from properly understanding what may be ailing him/her. Illich defines this process as “medical mystification” (80). It is an intellectual obscuring of sorts and stems from the physician’s special knowledge and training as it pertains to the proper functioning of the human body.
The other part of this insulation between the patient and the physician lies in the style of communication between the two. In referring to this style, or mode, of communication one must not only look at the vocabulary utilized by the physician but also at the structure of conversation between the patient and physician such as when the former enters into a hospital for medical purposes.
The largest disparity between position in the social hierarchy of Western medicine is between the patient and the physician. The patient/physician interaction is critically shaped by the rigidity of the social hierarchy. In describing the nature of the patient/physician relationship, Parsons lays out four distinct features that establish and maintain a particular form of the subordinate/superior relationship, most commonly expressed in terms of power/authority.
Before going further, an extremely important distinction must be drawn. Power and authority are, categorically, not the same things. For instance, in at least one form, the legitimization of authority allows one to exercise more power. Authority therefore enhances elements like one’s reputation or one’s social standing. Authority, also, could be viewed as an entirely different form of power. Whereas power may stipulate the explicit use of force/coercion (i.e. violence), authority may stipulate a softer version of that with similar end results but without the use of force/coercion. Instead, psychological mechanisms and tools may be utilized. I don’t want to go too far down the rabbit hole on this, but suffice it to say they are conceptually and logically distinct and should be kept that way for current purposes.
In this case, the physician is bestowed with authority through his/her extensive knowledge of the human body, coupled with the recognition of the former by the social structure known as medical school. The authority of the physician allows him/her to suggest, recommend, and, in some cases, command the patient to complete or permit certain actions.
The history of polygamy is a rich and varied one. Dating back to 3000 BCE and continuing today, spanning the world from Asia to Europe, from Africa and the Middle East to North America. The ancient patriarchs of the Hebrews such as Abraham, Esau, and Jacob were the heads of polygamous households. Similarly, under Shari’ah Law in Islam, a man is allowed to marry up to four women so long as he treats them in an egalitarian manner. Even the father of early modern Protestantism, Martin Luther, admitted that Christianity and polygamy were not mutually exclusive ideals, noting that the practice did not contradict anything in the Holy Bible (Swisher 3-4). As a result, it is fair to say that there is a globally attested and historical tradition of polygamy and that it has been defended over time as a viable form of marriage.
The Absurd (at least on Camus’s view) emphasizes “a fundamental disharmony” or “tragic incompatibility” in our finite existence. Camus ultimately argues that the Absurd is the product of a head-on collision between our seemingly universal human desire for objective order, meaning, and purpose in life and the bleak, indifferent, perhaps even soul-crushing “silence of the universe.” “The absurd is not in man nor in the world,” Camus writes, “but in their presence together…it is the only bond uniting them.”
In honor of today’s holiday and the greatest movie saga of all time, I’m uploading a copy of a paper that I wrote for one of my graduate courses, Women in World Religions, with Dr. Lori Swick.
You can download the essay in its entirety here.