by Gene Howington, Guest Blogger
I had in interesting argument the other night. Not interesting because of the content precisely. It was old ground about the rationale for being in Iraq and Afghanistan and this person took the position of the post hoc rationalization “to contain Iran” and that – and this was a new one, funny but new – that our reason for being there was based on our need as driven by the hostage crisis of the 70’s. It wasn’t a match against a skilled opponent. He was about as smart and skilled at argumentation as a house plant and that is really an insult to house plants. But what was interesting was when the topic turned to the idea of just wars and ethical relativism. I’ll summarize the just war argument to give some context and then show how ethical relativism came into the conversation because it got me thinking about ethical relativism (and its natural cousin moral relativism). Is it a good idea or a path to anarchy?
Summary of the just war argument:
A’s Primary Contention: We went to war in Iraq to contain Iran because we’re on a 70’s style revenge mission for the hostage taking. (Ed. Note: Seriously. That was the claim.)
B’s Primary Contention: The rationale given the public for invading Iraq was “to disarm Iraq of weapons of mass destruction, to end Saddam Hussein’s support for terrorism, and to free the Iraqi people.” In the end, there were no WMDs, no support of terrorism, and the Iraqis were a lot better off before we removed the only stabilizing force holding their secular country together and destroyed their infrastructure. The just war would have been to attack those who attacked us on 9/11, the Saudis with help from Afghani terrorist training bases. It would have given us the same benefits as invading Iraq (oil, common border with Iran) and come at a substantially lower cost to materials and troops when combined with an in and out strategy in Afghanistan (which history has proven to be fairly immune to long term occupation because of geographic and societal factors).
A: There is no such thing as a just war. Name one.
B: I can name two. American entry into WWII and the Revolutionary War come to mind, but there are other examples of just war through history.
A: We went to war to make rich men richer.
B: Really. And that is a reason to wage war that is just?
A: I haven’t heard the term “just war” since Medieval History class. You’re a (*#$#($*#head.
B: That’s all very interesting but I think you don’t know what a just war is. %$*($%$.
A: I know there is no such thing.
B: I can think of a couple of examples. Coming to the defense of your allies in the face of outside aggression, in defense of attack or in retribution of an attack by foreign forces.
A: There’s no such thing as a just war. Just depends on your perspective.
B: No. It doesn’t. There are some ethical absolutes.
A: No there aren’t.
B: Saying there aren’t and proving there aren’t are two separate things.
A: You *()$(#)($#) $)#$()#$ ()$#$!
B: That’s still not proving there aren’t, )($#)()@head. Are there are are there no ethical absolutes? Yes or no.
A: That’s a stupid question.
B: It’s not stupid just because you can’t answer it. It’s a simple question.
[Much back and forth of “stupid” and/or ($#_)#@$#% combined with a rebuttal of “non-responsive, try again”.]
A: People make ethical judgements all the time.
B: That’s not what I asked. Are there ethical absolutes or not?
A: Have your ethics changed over time?
B: Yes they have but that is irrelevant to the question here: are there ethical absolutes or not?
A: You’ve got nothing!
B: You saying I’ve got nothing is not the same as you proving I’ve got nothing. Are you an ethical relativist?
A: Give me an example of an ethical absolute.
B: Human life has value. Protecting it is a good thing.
A: That’s true, but I just want to see some people die.
B: Then you are an ethical relativist and we really don’t have much more to discuss.
A: You’re jumping to conclusions.
B: No I’m not. If human life has value except when you “want to see someone die”, then you are an ethical relativist.
The rest of the conversation was basically A drunkenly ranting about how I (B) didn’t know $*(# and that he had me just where he wanted me (on my knees) before he called me a little girl and proclaimed victory. I was very not impressed. I’d say it was embarrassing for him, but he proudly proclaimed that “ignorance was not a problem for him” and that he thought “retrograde drunken Neanderthal” was a compliment. But I digress . . .
It all got me thinking about ethical relativism though.
What is ethical relativism? It is the philosophical theory stating that ethics are relative to the norms of one’s culture; whether an action is right or wrong depends on the ethical and moral norms of the society in which it is practiced. There are no universal ethical or moral standards and the only standards against which a society’s practices can be judged are its own. The implication of this is there can be no common framework for resolving moral disputes or for reaching agreement on ethical matters among members of different cultures. We know from history that this is not the case. Some acts are considered to by universally wrong or right among the human species. Most ethicists reject ethical relativism because while the practices of societies may differ, the fundamental ethical and moral principles underlying these practices do not. Consider cultures where euthanasia is practiced like some Eskimo tribes when parents declare they are ready to die because of old age or illness, their families would kill them directly or leave them on the ice to die at the hands of nature. This would be frowned upon in our culture, but if you look at the underlying principle – taking care of one’s parents – both societies hold this principle as valuable.
Secondly, it’s an important topic because a kind of ethical relativism is encouraged in law schools under the guise of giving all comers adequate representation and ensuring a fair trial. It’s also something you see more often now in public behavior than in the past: rationalizations of bad behavior based on personal desire rather than ethical or moral principle. “I wanted to feel what killing someone felt like,” said 17 year old killer of 9 year old Elizabeth Olten. Truly a sign of someone with a broken ethical compass probably based in mental illness, but it illustrates the first problem with ethical relativism. It injects ego into the equation.
Consequently and concurrently we cannot remove ego from the equation altogether. If the ethical rightness or wrongness of an action depends on a societal norms, then the logical implication is that to be ethical that one must obey the norms of one’s society because deviance would be unethical or immoral. This leads to an interesting conundrum. If a member of a society that believes that racial or sexist practices are ethically wrong but they are permissible within that society, then one must accept those practices as morally right. This view is both oppressive and narrow in promoting unthinking social conformity and leaves no possibility for ethical and/or moral reform or improvement within a society. Consider that a lack of uniform majority though on a matter may not have created an ethical or moral standard to follow with the members of a society holding different views. Consider the example of the United States. Need I say more than “abortion” or “animal testing” or “medical marijuana” to provide examples of such unsettled ethical questions?
One of the strongest arguments against ethical relativism comes from the assertion that universal ethical and/or moral standards can exist even if some practices and beliefs vary among cultures. In other words, it is possible to acknowledge cultural differences and still find that some of these practices and beliefs are wrong. Consider that although the Aztec had a society that was in some ways more advanced that their contemporary European counterparts, that their practice of human sacrifice is simply wrong. Just so, the barbaric treatment of the Jews, Roma, homosexuals and the mentally handicapped by Nazi society is ethically and morally reprehensible regardless of the beliefs of the Nazis. Ethics are an intellectual inquiry into right and wrong through applying critical thought to the underlying reasons of various ethical and/or moral practices and beliefs. Ethical relativism fails to recognize that some societies may have better reasons for holding their views than other societies.
However, although ethical relativism has much going against it, it does remind us to examine and consider that different societies have different ethical and/or moral beliefs and invites us to examine those forces influence within our own culture. The only way to reach universal ethical truths whenever possible is through examining and challenging our own ethical systems by comparing them to other systems.
Can ethical relativism lead to anarchy? When everything is relative, there are no true stable standards, so I think the answer is yes.
Should ethical relativism be discouraged in our educational systems and society as a whole or do you teach it with the proper caveats and perspective to make it a useful tool instead of a dangerous tool?
Is ethical relativism a good thing or a bag thing?
Or is it like most tools dependent upon the user’s intent and application?
What do you think?
~submitted by Gene Howington, Guest Blogger.
nick,
Actually I am familiar with the Federal Sentencing Guidelines.
However, that is irrelevant to the point that you get pissy when someone pushes over your Straw Man or other illogical fallacious attempts at argument.
You tried to put words in my mouth (not for the first time) and you got the smack down for it.
It’s not my fault you can’t argue well. Or think well. And are as endearing and socially adept as a dead marmot. Bark, lil’ doggie! Bark!
Gene
I’m not asking for specific advise. I’m asking for you to make a statement that it is your professional opinion that people have a right to represent themselves in federal court using the published rules of civil procedure.
Professor Turley gives his opinions in every column and you give out your opinions on legal subjects all the time too.
Blouise, I apologize, my bad, mea culpa, pick one or all.
Gene I missed your last comment because I was simultaneously typing. I do want a lawyer to be my agent but I don’t know how to find one. Just today though I wrote to White & Case pro bono and asked them.
But can you please say it again, really clearly: I have a right to represent myself if I want to or need to and I should get the same rules of civil procedure as any other federal civil case. Say it please again under your name and then I will shut up for now at least about pro se rights.
Asking questions and trying to convince. I’m somewhat looking for a lawyer and somewhat I just want the lawyers on this blog to say that I have a statutory right to represent myself using the same old published rules and that the feds can’t imprison me without a criminal charge. In other words, if I go to federal court and don’t commit perjury, don’t threaten anyone, and don’t make a scene can’t I get a hearing where my arguments are addressed one by one without anyone attacking me or ridiculing me?
If the lawyers here would agree that I have a right to represent myself and be treated politely and have my arguments addressed in an orderly and comprehensive fashion, then I would be more likely to find a lawyer who would take my case on some sort of deferred payment or pro bono basis and I would have less of a need to represent myself because then they could argue that I should have not been treated the way that I was treated.
I do realize that it is easier to have two people in any sales or advocacy presentation where one can set up the other’s position.
Kay,
The only person I mentioned trolling was the same person other posters mentioned trolling and that was FairlyBalanced. Believe it or not, not everything is about you. However, regarding your case? I, like the other lawyers here, will only tell you this: hire an attorney and stop trying to represent yourself. Just because you can, doesn’t mean it’s a good idea (even for trained professionals). None of us are going to go into your case specifics. None of us are going to give you advice beyond the general advice you just got and have received in the past. Numerous times.
You should take the advice.
You may get sympathy for your situation here, but you are never going to get any specific legal advice here from me, Larry, Mark or the Professor.
Tony C,
“I will go further and say that if there are ethical absolutes, then I see no need for a ‘state of nature’ argument in the philosophy of the social contract. The social contract can be predicated upon the ethical absolutes themselves, and promoting and protecting them.”
Again with the fallacy of composition. You are off your game today. You are also contradicting your earlier statement of “I do believe in a small core of ethical absolutism”. If there is a small core of absolutes, what exists outside that small core? Non-absolutes. The social compact must consider these situations as well. Dispute resolution is necessary for any society of size. Not all disputes are going to revolve around absolute principle.
“Blouise, If you want information on litigation you would be better served asking someone who has actually practiced the law.” (nick)
What?! I don’t have any questions nor have I asked for info on litigation. Kay is the one with the questions and … nick, she has been on and off this blog for years asking the exact same questions.
Gene read paragraph 2 and following please
OS Fine, don’t care. I think that’s what the Jewish lawyers in Germany said about pro se rights before the Holocaust before their law licenses were removed from them.
Anyway, the reason I brought it up on this blog is because Gene W brought up that idea of a fair trial and how that was taught in law school in this blog. What does Gene think of Rules of Professional Conduct Rule 3.3 Candor Towards the Tribunal
Rule 3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
Especially # 2 basically says that when a litigant is pro se, the opposing counsel must almost argue their side for them doesn’t it? And pleading is not a game of skill….
Kay,
You are making an essential error when you write, “..Maybe the truth that makes you MAD is that pro se litigants do have procedural due process rights….”
Your error is assuming I care one way or the other. As a factual matter:
I. Don’t. Care.
Doctors give medical advice over the Internet all the time. There are lots of pro se litigants. More than half of all divorces are pro se. Over 1 in 5 non prisoner civil cases in federal court are pro se. The main reason is the $100,000 + cost of a lawyer in federal court. Years ago, lawyers made only a little more than a UAW worker.
I can not and will not let it go for these reasons: 1.) I have a constitutional right to a name clearing hearing in Federal Court and the defamation associated with being prosecuted without a written statement of probable cause and imprisoned without a criminal proceeding is too costly for me financially and emotionally to let it go 2) I have a pending $100 + K baseless attorney fee shifting judgment that could take anything and everything I own or could own at any time 3) I feel that I have a moral and ethical responsibility to other middle and lower class people to defend access to courts and that without my doing so people will be miserable or dead (not by my hand) 4) I think that because of Rule 804(6) I will get millions of dollars which I have plans for.
So why should I be miserable and homeless if remedy is there for me in Court? Maybe the truth that makes you MAD is that pro se litigants do have procedural due process rights.
My father told me that to get a solution you need to make a proposal that is acceptable to both parties. My defendants offered me only misery and then they effectively killed David Engle.
Well said OS!
Kay,
I do not presume to speak for Gene or anyone but myself; however, if you recall, Gene and several others here have told you that you are wasting your time. No ethical lawyer is going to give legal advice over the internet, same as no ethical psychologist or psychiatrist would presume to diagnose over the internet. You have been told repeatedly to consult a lawyer, who is probably going to tell you to let it go. It’s over. Maybe you need counseling instead of legal advice. I don’t know. That is the best I can do.
I know a lawyer whose wife made a large needlepoint sign for him when he opened his office. It is a large needlepoint, probably about 16″x20″ in size. It hangs on the wall right behind his desk. Clients cannot miss seeing it. it says, in bright red letters against a beige background,
kaysieveverding, I’m sure you’ve heard the quite true axiom, “A person who serves as their own attorney has a fool for a client.” However, in your case you might need a good shrink rather than an attorney. That’s just my opinion, I might be wrong.
so gene did you see the above? What do you think?
I was held using the Prisoner Tracking System, a federal system of records. I was not accused of criminal contempt and if I had been there would have been regular criminal procedure — a right to a lawyer, a government prosecutor, a written criminal complaint, a right to discovery, a right to witnesses, a bail hearing etc. I didn’t get any of that. They only allow summary procedure if you disrupt a hearing which I didn’t do.
DOJ published a notice in the Federal Register vol. 69 p 23213. It says “SYSTEM NAME:
U.S. Marshals Service Prisoner Processing and Population Management/Prisoner Tracking System (PPM/PTS).”
“CATEGORIES OF RECORDS IN THE SYSTEM:
Any and all information necessary to complete administrative processes, safekeeping, health care, and disposition of individual Federal prisoners who are in custody pending criminal proceedings”
“PURPOSE(S):
The Prisoner Processing and Population Management/Prisoner Tracking System (PPM/PTS) is maintained to cover law enforcement and security related records which are generated in the local USMS district offices in connection with the processing, safekeeping, and disposition of Federal prisoners who are in custody pending criminal proceedings.”
so that is why I don’t think the Feds can hold you for “civil contempt”.
The Rules of Civil Procedure control federal civil proceedings. They include Rule 5 d (4) Acceptance by the Clerk. The clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice.
So that’s why I think that the Federal courts don’t have authority to order the clerks not to accept pro se filings.
There isn’t actually a written rule that describes limitations on pro se representation. Lawyers are bound by the Rules of Professional Conduct which are brought it through local rules.
Then there is
RULE 601. COMPETENCY TO TESTIFY IN GENERAL
Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.
Tony C. 1, October 21, 2012 at 5:49 pm
“@Dredd: we also know that ultimate catastrophe can be averted
No. We don’t know that. In fact, although this is not my field of expertise, what I have read suggests much of the disaster cannot be averted …”
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That brings up the difference between “ultimate catastrophe” and “much of the disaster” doesn’t it?
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“… some of those island nations will be under water no matter what we do …”
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Including the Island Nation of Wall Street. But that is because there is a certain kind of “thinking” or the lack thereof, that got us here in the first place, got us past all those warnings being uttered every day for years and decades.
Got any idea what might have swayed us from doing “something” when it would have been a good thing to do?
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“… what we can plausibly do is a drop in the gallon of what would have to be done, so the moral question is no longer whether we should try to stop what is (probably) an inevitable catastrophe, but what is our moral responsibility to relieve the suffering after the inevitable catastrophe takes place.”
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Yep, triage, the triumph of the great civilization. “Bury them when we kill them.”
Quite sophisticated. Now back to the 18th century.
I guess we just keep farting in the wind and discussing 18th century philosophy about absolutes and ethical relativism in the U.S.eh?
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“As for the relevance of that argument to this thread; I think it is fairly far removed. This is a general thread about Ethical Relativism; not a specific thread about Global Warming …”
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Ok, so you are saying this thread is not very important in terms of modern day reality, but right on in terms of tired, useless 18th century debate?
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Makes “sense” if you know what I mean.
It sounds like you are talking about a disruptive criminal defendant. That wasn’t me. I wasn’t a criminal defendant in federal court.
Actually, I entered a table into Pro Se Representation in the U.S. in Wikipedia that shows that self representation in civil case is allowed in every state in the U.S. I see someone deleted it. In many states it is in the Constitution. I think Colorado is one of those states where there is a state constitutional right to pro se litigation. In the US it is in the Judiciary Act 28 USC section 1654.
Disrupting a court room is criminal procedure in Federal Court. See Rule 42(b). “the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies”. Judge Nottingham didn’t do that. He imprisoned me at a pre scheduled civil contempt of court hearing at which I was very polite. That was the first time I met him. Previously I had filed an objection to the magistrate’s report and recommendation and I had filed an appeal to the 10th Circuit.
The magistrate made rulings that conflicted with Supreme Court decisions. He ruled that my voluntary dismissals of complaints that weren’t served in other courts caused res judicata. That conflicted with Semtek Intl. Inc. v. Lockheed Martin Corp. He ruled that prosecutors have immunity for defamation at a press conference. That conflicted with Buckley v. Fitzsimmons. He ruled that there is immunity for criminal acts, that conflicts with the Colorado Governmental Immunity Act. He ruled that attorneys have immunity for acts as advocates and didn’t support that with anything.
I couldn’t “let it go” because they made it impossible for me to work with their defamation and they destroyed by business with their attorney fee shifting award, which did not have any Rule 11(c)(6) orders and for which Nottingham didn’t state his authority. It was litigate or die.
Kay,
Regarding a defendant representing self. Most courts will allow it, but there are exceptions. For one, if the defendant refuses to obey the rulings of the court and engages in disruption of the proceeding, the judge may, and probably will, disallow self representation. Since I don’t know you, except by your writings here, I suspect the court tired of your unwillingness to let things go. Arguing with a judge after a ruling has been made will get you cited for contempt. Do that enough, and you will not be allowed to proceed pro se. We had one of those kinds of cases here recently. The defendant kept creating such a scene in court and being combative with one attorney after another, he finally had an attorney appointed for him and he got to watch the proceedings on CCTV. He lost his case.