The recent expansion of so-called "hate crime" legislation by the US Congress has drawn a storm of condemnation from Conservatives and Libertarians, occasionally echoed by other observers, including some who consider themselves Objectivists. Yet if one is to actually apply Ayn Rand's philosophy to the evaluation of such laws, one needs to strip away the false labels and intrinsicist arguments - and evaluate what is really being legislated independently of either.
"Hate crime" is a bad label, because hate is just as much a part of violence that falls outside the scope of this legislation, as of violence punished by longer prison terms under it. What the legislation actually concerns (and what, unfortunately, only Objectivists can accurately name) is crime motivated by collectivism: by animus, not against the specific individual whom the criminal assaults or kills, but against a collective classification to which the victim happens to belong. How should such motivation affect the punishment?
There are three distinct (albeit closely interwoven) reasons why crimes are punished, and need to be punished. The first is retribution: the criminal has inflicted an injustice on the victim, and justly deserves punishment. The second is retaliation: the prospect of punishment reduces, proactively, the incidence of crime. The third is prevention: the incarceration of the criminal prevents him from committing additional crimes while incarcerated - and, if provided and made use of, rehabilitation services may reduce the criminal's inclination to commit additional crimes after his eventual release.
How is each of these considerations affected when a crime is motivated by collectivism?
In an objective legal system, retribution is proportional to the product of two measurements: the harm done to the victim, and the irrationality of the criminal's action. If it were shown that no non-consensual harm was done to anyone, or that an accused person's action had been rational (for example, to save his own life in an emergency) then no criminal sanctions are objectively called for. To harm another individual not because of anything that individual has chosen or has done, but from bigotry about facts that were outside the victim's choice, such as where the victim was born, or her race, or her sexual orientation and so on - in other words, crime motivated by collectivism - is, outside of some barely imaginable emergency contexts, at the outer extreme of irrationality, and therefore at the outer extremity of injustice that deserves retribution.
Retaliation works indirectly, by enhancing, through the prospect of punishment, the disincentive against irrational (and therefore unjust) action. A greater irrationality - and collectivism is close to the acme of irrationality, exceeded only by such self-sacrifice as attempting to carry out a suicide bombing - needs to be met by the prospect of proportionally greater retaliation.
Similarly for prevention. Someone who strikes a cheating spouse or an abusive boss is acting out, however irrationally, against a specific individual's actions; such a person is not likely to endanger, after his release, anyone other than someone who would then choose to marry him or to hire him in spite of his criminal record. Once the requirements of retribution and retaliation have been met, such a person can be safely released. On the other hand, a collectivist who is out to bash or kill Mexicans or Jews or homosexuals or Blacks cannot be released, when there are many other potential victims against whom he bears the same anti-rational, collective animus, and whom his release would put in harm's way.
So by all means, let us call so-called "hate crimes" by their right name: crimes motivated by collectivism. And punish them accordingly.
Saturday, May 02, 2009
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13 comments:
> "'Hate crime' is a bad label, because . . ."
What label would you suggest as an alternative, an alternative that best identifies the essential motivation of the perpetrator of an act of aggression such as an attack on an individual because of that person's race or other collectivist notion?
Burgess,
"Crimes motivated by collectivism" is the best label that I can think of at this time. It is likely that when our society is re-founded on Objectivist principles, a shorter label will have been found. But that will require, second, a moral revolution - and first, an epistemological revolution to replace the present alternatives of intrinsicism vs Pragmatism with an objective, context-sensitive public epistemology. Each of those will take decades, and might not even start here in North America - and if it starts elsewhere, people will have new local vocabularies to draw on. It may be too early to start worrying about questions of language - except for those who find it fun, and those who do are welcome to start.
So, if I understand you, you're saying that killing a person because he is a member of some group is more irrational than stealing from him because he is rich. I don't see why that is "more irrational"; how does one draw up that scale? is your point that larger evasions are required?
Also... not your point, but... don;t you agree that attempts at doing harm can also be criminal; ie. something can be criminal even if no harm is actually done.
> "Crimes motivated by collectivism . . ."
Dr. Reed, I assume you are looking for possible objections that might arise when you present your ideas elsewhere. In that view, I have an additional question, beyond the nomenclature.
I wonder whether a government, in the normal course of daily life, should ever base its laws or other judgments on -isms. That puts government in the role of deciding which sets of beliefs (-isms) are good and which are bad.
Should not a government, dedicated to its function of protecting individuals from acts of aggression and fraud, criminalize (and militarily target) certain kinds of actions and not the validity or invalidity of the motivating ideas behind them?
A counter might be: "But we do consider ideas when we consider intentions." Yes, however, as a non-lawyer, I wonder if -isms are essentially the same as intentions.
Thank you for a thought-provoking article.
Burgess,
You ask, "Should not a government, dedicated to its function of protecting individuals from acts of aggression and fraud, criminalize (and militarily target) certain kinds of actions and not the validity or invalidity of the motivating ideas behind them?"
So, what causes crime? An empty mind cannot act. All human action is caused by ideas and beliefs; crime is caused by false beliefs such as "this crime is in my interest," or "I have a duty to my God/tribe/race to do this crime without regard to my own interests," or even "my mind is not fit to deal with reality so I shall act on whim." The proposal to judge actions without regard to the cognitive context of the false beliefs that cause those actions, amounts to treating consequences while refusing to think about causes. I can't think of a coherent justification for such a stance.
Realist,
Yes, I agree that attempting or threatening to do harm, or creating, or contributing to, an objectively demonstrable risk (of non-consensual harm) is itself a form of non-consensual harm, in that it imposes on non-consenting victims the cost of countermeasures against the risk.
So your first point is not unrelated to your second. The nature of ideas that led to the crime is a factor in deciding what countermeasures one needs to take to avoid becoming another victim. The presumed countermeasure for your second example (keeping money in the bank, where it becomes more difficult to steal) is relatively simple and cheap, while countermeasures to the first (e.g., keeping one's race or sexuality a secret from potential attackers) can be onerous, and could be impossible. The cost, to the prospective victims, of those countermeasures is part of the harm done by the criminal, and should be taken into consideration when the law sets the penalty for the crime.
I'd be interested in your comments on Robert Tracinski's op-ed re "hate speech" at ARC.
http://www.aynrand.org/site/News2?page=NewsArticle&id=7862&news_iv_ctrl=2405
He seems to be arguing that the "ideas" held by the perpetrator are different from the "motive". In other words, a crime is committed against an individual and the government's function is to prosecute the perpetrator based on his actions. I think it is presumed (by the nature of law itself) that the crime is motivated by something other than "benevolence".
If someone kills for money, or out of anger at that individual, or because the victim is a member of a "hated" collective, his "actions" are profoundly irrational and should be punished. I do not understand the basis for your claim that someone who is motivated by collectivism would be more likely to kill again than someone who acts against a particular individual. I also don't understand why that is even a relevant consideration except perhaps in establishing motive. In other words, the state does punish a premeditated crime more than a spur of the moment crime because someone who acts premeditatively is more likely to commit it again. But, one who plans his wife's murder is as evil in my book as someone who kills someone because they belong to a specific race.
I agree with Tracinski that the "ideas" held by the perpetrator should not be relevant (except I would say perhaps to explain the level of premeditation). I think it is dangerous and beyond the scope of the state to define what categories of ideas are good or evil. Their function is to prevent actions - the initiation of force.
Interested in your comments. Thanks.
Doug,
Yes, I have read and thought about Tracinski's article. He asks the right question:
"Why, for example, should a racist be prosecuted for the special crime of targeting blacks, while the Unabomber is not subject to special prosecution for his hatred of scientists and business executives? The only answer is that the Unabomber's ideas are considered more "politically correct" than the racist's."
The answer is that objective law, rather than list specific "protected groups," would apply equally to all sufficiently grave crimes motivated by collectivism. Thus it would apply with equal force to crimes motivated by a collectivist animus against "scientists and business executives" as animus directed against other ("racial" etc.) collectives.
Tracinski's argument suffers from what Peikoff calls "rationalism," a defect of reasoning closely related to the intrinsicist arguments of supernaturalist conservatives. That is, he fails to check his reasoning against the facts of reality - to ask himself how his proposed dichotomy between ideas and motives would play out in application to real cases. If he had, he would have found out that it is a false dichotomy, one that is falsified by any number of rather obvious existential scenarios. Your example (and examples brought by previous commentators - please read my responses to them, above) illustrates this rather well. Someone who "plans the murder of his wife" cannot repeat his crime (assuming that he is sentenced to 30 years in prison rather than imprisonment for life) unless someone marries him, after his release, in blatantly irrational disregard of his already abhorrent criminal record. A "Unabomber" type, on the other hand, would not find it difficult to find more scientists or businessmen (or Mexicans or homosexuals etc) to kill - and therefore it is right for the law to make sure that he is never again at liberty to do so.
Why are you assuming that someone who kills his wife would only be willing to kill another wife? Shouldn't someone who has demonstrated a willingness to kill, i.e., to violate someone else's right to their life be regarded as a violator of rights and be punished accordingly regardless of their "ideas" related to the victims?
Shouldn't the act which demonstrates the willingness to kill be the essential?
Doug,
I think that your latest question confuses the existential with the epistemological.
Essentials are epistemological, but the question that you seem to be posing is existential: does the fact that (1) someone once killed his wife, entail that it is AS PROBABLE that he will kill someone who is NOT his wife, AS that (2) someone who killed a Mexican just for being a Mexican, is likely to kill another person who is ALSO a Mexican, ALSO just for being a Mexican, if the previously convicted murderer were enabled to do so? As far as I know (from my perusal of FBI statistics etc.) the two probabilities are quite different. This fact of reality implies that there are other concepts, and other essentials, apart from the one shared essential of willingness to kill, that need to be understood and applied, if one is to judge and punish those two crimes objectively (taking into account the full context of the crimes, including their different motivations.)
I don't want to be a pest so I will make a few more points and leave it at that.
I think there are a number of issues here.
I question the premise that it is a function of the state to determine the degree of irrationality inherent in a crime as part of the criminal justice process. This would charge the state with judging the rationality of a philosophy or idea which is not the proper function of the government.
The state's job in this context is to punish someone's actions. Justice simply calls for the punishment to fit the crime.
I find the argument you are making re people's potential for committing more crimes problematic on several levels. First, you seem to be making a statistical argument which I find problematic because it borders on determinism, i.e., statistics show that some people are more likely to commit crimes given a certain crime, etc. People have free will and it is not clear to me that the state should be evaluating the likilihood that someone will continue to commit crimes based on their supposed philosophy.
In reality, an individual's philosophy can rarely be put into a simple category. How exactly would the state determine if someone is a "collectivist". What if he decided to kill his wife because she was a Mexican and he wanted her insurance? What if someone were very religious, hated Mexicans, and recently lost his job so he kills his Mexican boss, steals his money and justifies it by referencing a passage in the bible? What is his philosophy? Is he more likely to commit again? Is there a clear cause and effect relationship between his current ideas and his future actions which are somehow "determined"? (Of course, someone who commits crimes is more likely to commit future crimes, but I am questioning the idea that it is the government's job to assess the relationship between philosophic ideas and the liklihood of committing crimes).
My point is that the state's function should be to mete out justice based on this guys actions not his stated or implied philosophy.
Thanks for your thought provoking post.
Doug,
Back before blogs replaced most e-mail discussion lists, you would see, as part of my e-mail .signature, "Context matters. Seldom does *anything* have only one cause." (This may be a lemma to "Essentials are epistemological, not existential.")
What I will rationally spend on countermeasures against crime is a function of the statistical likelihood of crime. Therefore the harm done when the criminal, in addition to his primary crime, imposes the cost of countermeasures on innocent third parties, is a related function of the same statistics. This should not be the most important factor in calculating what punishment the criminal deserves - but that does not mean that it should not be a factor at all.
As for the claim that "judging the rationality of a philosophy or idea, is not a part of the proper function of government" - that claim is how Classical Liberalism degenerated into the Pragmatic/Social pseudo-Liberalism that goes under the name of "Liberalism" in North America today. On the contrary: for government to be limited to its proper functions, it must be grounded in valid philosophy and true ideas; and it must recognize that it is the absence of these ideas from a man's mind - and the mental failures that lead to this absence - that are the only indispensable cause of criminality and crime.
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