Tuesday, December 10, 2013

A Response to Bernard R. Boxill’s Lockean Argument for Reparations

A Response to Bernard R. Boxill’s Lockean Argument for Reparations
Philosophers who ignore the extensive evidence of Locke’s racism and yet still cling to the misguided notion that Locke intended his principles of liberty to be applied universally to all ‘men’ not only are being false to the past and false to the present efforts to shed light upon the history of the racism of Western philosophy, but they are also being false to the future, insofar as efforts to establish a society free from racist institutions will be thwarted until there is greater honesty about the past.” –
Race and Racism in Modern Philosophy - "The Contradictions of Racism: Locke, Slavery, and the Two Treatises" - "Robert Bernasconi & Anika Maaza Mann"- edited by Andrew Valls

The issue of reparations for harms done as a result of slavery and Jim Crow laws is one rife with problems to be overcome.  Problems arise when asking whether reparations should be made, who (or what) should make them and how any culpability for harm should be distributed, to whom reparations should be made, the amount of reparations to be made, and in what manner they should be made, to name just a few.  Bernard Boxill makes two arguments that reparations should be made in A Lockean Argument for Black Reparations using parts of John Locke’s Second Treatise of Government and an appeal to natural law (as opposed to positive law or any other moral or legal philosophy) to justify his position.  Boxill’s arguments that the US government should make reparations to African Americans rely on an ad hoc point of causation while employing sections of Locke’s work that fail to completely incorporate Locke’s theory, leaving unaddressed contradictory or mitigating sections of Locke’s essays.  Furthermore, Boxill’s use of Locke’s just conqueror to justify reparations is incoherent as it stands, relying on assumptions that are not entirely clear and only serve to weaken his argument when that section is given a reasonable interpretation of who is and is not the unjust ruler, just conqueror, and their heirs and assignees.  By taking into account the aforementioned issues, addressing those sections of Locke that Boxill leaves unaddressed, and by showing how the just conqueror analogy he uses actually hurts his argument, this paper will show that Boxill’s arguments are not as strong as they may seem.
The two arguments addressed are the counterfactual and the inheritance arguments.  The counterfactual argument is one that concludes present day African Americans have a just claim for reparation because they are harmed as a result of the enslavement of their ancestors.  The inheritance argument asserts reparations are justified, though current harms are not necessary and the reparations are for the harms done to their ancestors during slavery and Jim Crow laws, and the descendents have inherited the rights to those unpaid reparations (68).  The counterfactual argument is such that if there is ever a time when no harms are being, or have been, suffered by the potential claimants then there would be no right for reparations.  The inheritance argument does not account for current harms so heirs would have a right to reparations in perpetuity regardless of harms they may suffer themselves.  Boxill argues that it seems reparations cannot be sought from those individuals who perpetrated the original harm of slavery, but asserts that a solution might be to hold the U.S. government and individual state governments culpable for such harms (65).  Boxill’s possible solution, though not fully supported by Locke, is a requirement for both his counterfactual argument and for his inheritance argument.
Counterfactual Argument Rebuttal
Boxill continuously forces a perspective that slavery, specifically the effects of US laws that permit the institution, is the first cause.  He addresses a causal chain of harms that will need to be unbroken and his first link in the chain is, mistakenly, the US government: “The injustice or injustices that caused her harms was the U.S. Government’s failure to compensate her parents after her conception, as well as the unjust policies it enacted and enforced to prevent them from recovering from the effects of slavery” (89).  Harms suffered by African Americans today could stem from many potential sources; their own bad decisions, any number of racist behaviors they have been victims of over the course of their lives, the lingering effects of bad social policies (both federal and state) including the criminal justice system, the lingering effects of Jim Crow laws, and the effects, whatever they may be, of their ancestors enslavement and loss of wealth and opportunity as a result of the institution, as Boxill correctly points out.  But the causes do not stop there.  They not only continue from the time of US sanctioned slavery, they continue ever farther back into history to the social institutions of European colonization and imperialism that accepted slavery as a norm in the first place, to the African nations or tribes who may have been complicit in any way to the institution, and to the even more ancient idea that slavery was ever justifiable in the first place.  These *causes* should also serve to distribute the culpability for any harms done as well as dilute the liability of any individual agent for any future reparations even further, which Boxill does not address in his essay.  The problem here is not with whom or what caused the harms suffered today, but with what was the original cause of those causes.  If the moral argument is to be made for reparations to be paid by the US government, it should be made with a full understanding of the idea of original cause.  If original cause is irrelevant then the necessary question becomes what justifies any single interim cause as the cause which justifies reparation so that it is not merely an arbitrary existential target.  Furthermore, if one assumes the harm is from a long chain of causal agents then any reparations should be apportioned between the agents as no single agent can be considered the sole cause of the harms done. 
It seems a strong argument can be made that the result of slavery and Jim Crow laws has been harm for not only African Americans but all the citizenry of the country (admittedly to different degrees and in different forms), at the very least by staining their moral conscience and resulting in the necessity to make reparations.  Had those who are eventually deemed culpable for the harms and the resulting reparations been operating from a position of fully informed consent at the time of the actions which brought harm to themselves and others they would not have made the decisions they made.  For all practical purposes the moral normativity that accepted and justified slavery as an institution existed as a result of ignorance that is not present now, and is therefore like holding a two year old child culpable for accidentally harming an adult, at least as far as the relationship between the actor and ignorance is concerned.  Furthermore, if it is true that there has also been some harm to at least some of the rest of the population, who or what should be held accountable for those reparations?  Should the governments or the people of the United Kingdom, Spain, France, Portugal, or descendents of those who were complicit in the African kingdoms during the period of transatlantic slavery be held accountable?  If so, and if this is morally correct, then they would have the same argument for whatever agency influence they were under that led them to act in such an immoral way, at the time somewhat unknowingly, or so common understanding of what was deemed right and wrong would lead many to believe based on the normative views held during those times.  How far back should this moral culpability go?  Ideally, and for the sake of moral consistency, it should end up finding some causal agent in the mists of antiquity.  If those earlier damages may not be rectified and they were the direct causes of later injuries and harms, it seems somewhat unfair to demand reparations from a party who is also owed reparations for the same or similar morally reprehensible acts who cannot be made whole.  The reparations made from a similarly damaged entity unable to be repaired could be considered an additional injustice in a whole string of injustices.  All of the above is valid as an assemblage of potential criticisms, notwithstanding any arguments dealing with the role of determinism, if any. 
If one sees this argument as specious, ask what harm slavery or Jim Crow laws have done to all African American embryos and newborns.  If damage has not been done to all, then an argument can be made that newborns who have suffered harms have suffered those harms not as a result of slavery or Jim Crow laws, but from intervening causes in the lives of the parents, grandparents, or other ancestors of the child, and not from the two causal elements of slavery and racist laws.  Another argument at this point might be one that claims secondary or tangential harms stem from those two causal targets, and reparations should be made for them.  However, if those elements are deemed secondary or tertiary causes of harms, then the newborn should be able to demand reparations for the harms done by their ancestors as those would be the primary causal agents in this case.  For some reason, this argument has not been found to be addressed in any of the arguments for or against African American reparations.  It also could result in the argument that just because one agent in the causal chain is unable to receive reparations it does not absolve it of making reparations for its part in the harms further down the causal line.  This is a stronger argument from a deontological standpoint (though distribution of liability for harms would still need to be a consideration), but not necessarily from a utilitarian or natural law perspective.
Inheritance Argument Rebuttal
            Notwithstanding causal culpability arguments, Boxill relies on an appeal to Locke’s position on the right to inheritance in order to justify his position for reparations.  In his argument pressing for reparations to be paid by the state and federal governments, he addresses the idea that the governments now may arguably be different from those which were around during the time of slavery.  However, he proceeds to address the idea that the governments “are in all relevant respects the same governments that now exist” (70).  What is relevant is that nations and governments exist over long periods of time, sometimes centuries, and that their identities cannot be tied to the identities of those who make up the governments (71).  This, however, does not show what those relevant aspects are.  Instead, it is a way of disputing the idea that the governments are so different that the culpability for reparations does not presently hold true.  Boxill goes on to claim that this, however, is not enough. He must also show that the citizens have inherited more than they needed to merely be free.  Boxill admits that his ideas, at this point, require the inheritance argument to be repaired in order to justify the position he has taken.  For this he refers to sections 179, 180, and 183 in Locke’s The Second Treatise of Government.
            Locke’s basic argument in those sections is that a lawful conqueror acquires rights and powers over the citizens of the conquered country.  Section 179, speaking of the despotical power the conqueror has, states that it is, “Secondly…only over those, who have actually assisted, concurred, or consented to that unjust force, that is used against him” (111).  Boxill goes on to quote a small part of section 178, without referencing, which asserts the lawful conqueror “has an absolute power over the lives of those, who by an unjust war have forfeited them; but not over the lives or fortunes of those, who engaged not in the war, nor over the possessions even of those, who were actually engaged in it” (111).  As Boxill rightly points out, this is a limiting factor and is more succinctly put when Locke states in section 182 that by conquest one has “a right over a man’s person to destroy him if he pleases, has not thereby a right over his estate to possess and enjoy it,” and, “The right then of conquest extends only to the lies of those who joined in the war, not to their estates, but only in order to make reparations for the damages received, and the charges of the war, and that too with reservation of the right of the innocent wife and children” (113-114).
            Boxill applies Locke’s statements to the question of reparations by positing;
1)     Slaveholders did, in fact, harm slaves.
2)     Slaves had a right to reparation from the slaveholders.
3)     The right of reparation extended to the estates of those who assisted, concurred, or consented to the transgression which caused the harm(s) (74).

Another restriction addressed is that the right to reparation may extend only so far that it would not endanger the lives of the heirs.  Boxill then goes on to require a critical assumption that, “present day white U.S. citizens are the heirs of the slave holders and those who assisted, concurred or consented to their transgressions, and that present day African American are the heirs of the slaves” (76).  His argument rests on this unqualified statement, which he reiterates when he states, “it maintains that the slaves had titles to reparation against the assets of the entire white population, not just against the slave holders.” What is curious here is how he can state that such a claim necessarily follows from what he says is his premise for the aforementioned statement upon which his argument rests, and immediately follows, saying, “this is because most white citizens consented to the government’s support for slavery and consequently entitled the slaves to seek reparation from them” (77)  This immediately demands an explanation as to how the pronoun “them” in his premise, which refers to some, necessarily becomes all in his conclusion.
            Utilizing Locke may or may not persuade others as to whether or not reparations should or should not be paid.  There are some relevant points, however, that should be made.  One such point is the glaring absence of the prerequisite, according to Locke, for what Boxill relied on for his argument in favor of reparations.  While Boxill did, without attribution, refer to a line from section 178, what he did not do was provide the introduction which states, “But supposing, which seldom happens, that the conquerors and conquered never incorporate into one people, under the same laws and freedom.  Let us see next what power a lawful conqueror has over the subdued” (111).  This prerequisite requires that the lawful conquerors and conquered have not incorporated into one people and are not under the same laws with the same freedoms.  The argument against Boxill’s position, which would rely on this prerequisite condition, is that the citizenry of America is “one people” and are “under the same laws and freedom.”  This is not to say that disparities in treatment between whites and African Americans do not exist, but that they are not sanctioned by law, are arguably not based on race, and therefore those disparities do not have the support of the governments involved.
            Another point is that Boxill fails to address, in his analogy of the lawful conqueror and the unjust ruler, which is which and who are their respective heirs.  Does Boxill mean to say that African Americans are the lawful conqueror with the rights and powers enumerated by Locke, and if so, was it the whites who were conquered?  This seems a farfetched claim considering the existential realities of the fight over reparations nowadays.  He cannot mean to say that the current government is the lawful conqueror over the old government which was complicit in slavery as he has already argued that the governments are the same in all relevant respects.  Boxill does not address how the act of conquering would look or what its relevant characteristics would need to be in order for the analogy to be meaningful. As it stands, it seems the analogy does not provide any clarity whatsoever when it comes to how it should be applied to the question of reparations.              
            It has been shown that Boxill’s argument in favor of reparations has some serious failings, if not flaws.  The counterfactual argument has problems when it is conceded, as it should be, that all of the citizens in the U.S. have been harmed to varying degrees and in different ways by the idea of racism, the institution of slavery, Jim Crow laws, and the ways in which our society often fails to account for the injustices that have and continue to exist.  It also requires an appeal to a strictly deontological moral philosophy, whereas a utilitarian one is likely to be more pragmatic and mandate a forward looking perspective regarding reparations, and as a result be more aligned with remedies to class issues than racial issues with the idea being that they are currently intertwined to such a degree that addressing the one is the most effective way of addressing the other.  His inheritance argument also has, as this paper has shown, serious failings.  First, it presents an analogy that relies on a prerequisite that Boxill left entirely out of his argument, which had it been included would have risked the entire argument being invalidated.  Second, the failure to characterize the conqueror, the conquered, and their heirs makes the entire analogy incoherent in relation to the specific issue Boxill is attempting to address.  Even if the argument made perfect sense, Locke had this to say in A Letter Concerning Toleration: “But to come to particulars.  I say, first, no opinions contrary to…those moral rules which are necessary to the preservation of civil society, are to be tolerated by the magistrate” (424).  If reparations are contrary to the moral rules that are necessary to the preservation of civil society, as some utilitarians, pragmatists and legal positivists might claim they are, then they should not be allowed. 
Works Cited
Boxill, Bernard R.. "A Lockean Argument for Black Reparations." The Journal of Ethics 7.1 (2003): 63-90. Print.
Locke, John, and Richard Howard Cox. Second treatise of government. Arlington Heights, Ill.: H. Davidson, 1982. Print.
Locke, John, and David Wootton. "A Letter Concerning Toleration." Political writings. New York, N.Y.: Mentor, 1993. 424. Print.

MLA formatting by BibMe.org.

Wednesday, November 27, 2013

Political Violence: A Discussion of Competing Conceptions

There are several competing definitions for violence. This paper will examine a “legitimist” definition such as that put forth by Robert Paul Wolff, a “wide” definition such as that put forth by Johan Galtung, and a “restricted” definition such as that put forth by C.A.J. Coady. An analysis of these definitions will show ways in which they are all similar, ways in which they are different, and then conclude that there no possible definition that does not in some way rely on some presupposed moral notions through which the term must be defined if it is to be understood in any way similar to the way it is commonly understood now. Furthermore, this paper will show how each of the authors apply their own normative moral judgments to the concept of violence: each seeking to promote a view of violence that supports what is arguably a conception that agrees with each author’s particular political bias. However, each author provides valuable insight into the concept of violence and how it operates within a socio-political framework. The end result will show how the definition of violence, assuming compromise between two extreme understandings of the same word is a virtuous goal, should be one that more resembles the one provided by Newton Garver.  While his definition is also problematic in some areas, it serves as the most reasonable one overall, most closely accords with what people believe violence is, and seems to be a workable midpoint between those presented by Galtung and Coady even if it is somewhat closer to the wide definition than it is to the restricted.
Robert Paul Wolff, in his essay On Violence, opts to use an operable definition of violence, and states “Strictly speaking, violence is the illegitimate or unauthorized use of force to effect decisions against the will or desire of others” (55). His essay is a criticism that violence itself is an inherently confused term which relies on the notion of there being a legitimate authority. Wolff denies there is such a thing as legitimate authority, politically (57). This is unsurprising considering he is an anarchist and claims there is no such thing as a right of command by the state, and without such a right of command political violence cannot exist as the illegitimate use of force because state legitimacy does not exist.
The use of the word “illegitimate” in his definition is only relevant when considered a characteristic present when there is such a thing as a political authority: an authority of the political, defined by the Oxford English Dictionary (OED) as “of, belonging to, or concerned with the form, organization, and administration of a state, and with the regulation of its relations with other states” (“Political” def.1.a.).
Wolff’s position is absolutist in terms of moral autonomy. He argues that moral autonomy and a state having de jure authority (the right to command and be obeyed) are antithetical to each other. His a priori position that all people have a duty to exercise full autonomy is such that it denies the existence of any external de jure authority, at least insofar as a government is concerned (56). Wolff argues there are four basic views on violence, depending on one’s position in society and the financial or political aims present. However, only the first view comes with a definition and it is the legitimist definition he is arguing against (61-62). The other views are mere assertions which serve his own interests, which he may feel justified in doing as he states, “The concept of violence serves as a rhetorical device for proscribing those political uses of force which one considers inimical to one’s central interests” (61).
The OED lists twelve entries for defining violence (“Violence” def.1.a.-6.). None of the entries use legitimacy as a characteristic of differentiation between applied force that is violent and applied force that is not violent. Wolff has, in this author’s opinion, put forward a straw man argument in support of political anarchism by making the assertion that violence, defined such that legitimacy is a component, is an incoherent concept. The response to this should be, “That’s nice, but violence is not defined in this way, so arguing against such a definition is really only a ploy to serve the author’s rhetorical purpose of promoting anarchism by way of an absolutist view of personal autonomy which is antithetical to coercive force of any kind, especially governments; but also includes the force applied through social opinion.” Wolff knows his position is likely an exercise in futility as he finds what is necessary to realize his utopian ideal is highly improbable. What he seeks as an end is an actualization of the following, which can be found in his book, In Defense of Anarchism:
When rational men, in full knowledge of the proximate and distant consequences of their actions, determine to set private interest aside and pursue the general good, it must be possible for them to create a form of association which accomplishes that end without depriving some of them of their moral autonomy (78).

               Legitimacy is not a concern for Johan Galtung, who says in his essay Violence, Peace and Peace Research, “Violence is present when one is being influenced so that actual somatic and mental realizations are below their potential realizations” (80). Galtung came to this definition as the logical conclusion of two asserted premises:
1.     The term ‘peace’ shall be used for social goals at least verbally agreed to by many, if not necessarily by most.
2.     The statement peace is absence of violence shall be retained as valid (79).

It is unlikely that the word “retained,” in the second premise, means anything comparable to “kept and continued to be used,” as prior to this publication the word peace was rarely, if ever, commonly defined to be the absence of violence. It is much more likely that the word means “employed,” which makes this conception of peace either rare, or unique, at the time of the writing. However, by choosing to make the assertion that peace is the absence of violence, Galtung is able to create a conception of peace and violence where each is the logical opposite of the other, being two sides of the same coin. This is problematic, as Galtung admits when he says it is clearly an obscurum per obcurius (defining the obscure through the use of the more obscure), but he also continues and makes the claim that such an understanding accords with common understanding: which is arguable because, as has already been stated, his conception of peace in his essay was either rare or unique at the time of its publication (79).
While Galtung’s conception may help in the overall promotion of peace, his definition of violence is so broad that some may see this view of peace as being synonymous with perfect justice and violence synonymous with injustice. This interpretation has some support, as Galtung uses the terms structural violence and social injustice interchangeably (84). This understanding of violence, like Wolff’s relies on normative issues relating to justice, and is likely to be, as Wolff said, another rhetorical device which serves the author’s central interests.  However, a literal application of Galtung’s definition of violence is also problematic as it will lead to some very unusual acts being considered violent/unjust, as C.A.J. Coady identifies in his essay, The Idea of Violence. For example, a person who gives another a sleeping pill upon request would be committing an act of violence since the act will result in the recipient losing some somatic and mental realizations and therefore be below their potential, at least for a time (249). Such an understanding in this way is not in accordance with “common understanding.”   
               J.A.C. Coady, in his essay The Idea of Violence, uses an appeal to authority to support his argument against both wide and legitimist views of violence. Specifically, he quotes the OED definition, which he seems to rely on mostly for criticism against Galtung’s wide definition, “The exercise of physical force so as to inflict injury on or damage to persons or property; action or conduct characterized by this” (“Violence” def.1.a.). While the definition provided does serve as a fairly strong starting point to criticize the expansive definition of violence put forth by Galtung (as well as Wolff’s due to the lack of reference to legitimacy), either Coady was being disingenuous with his use of the source, or the source has changed since the time he quoted it. The OED provides a different definition than the one Coady used. The correct, or new, definition from the OED is the same as the one used by Coady except for the ending which, picking up from within the definition used earlier, adds “treatment or usage tending to cause bodily injury or forcibly interfering with personal freedom (“Violence” def.1.a.). In Coady’s defense, he equivocates somewhat by saying of the OED definition that he wants to endorse something like it, and admits “it faces certain difficulties and requires some clarification” (247). He points out that the definition relies on an understanding of force, which an emergency medical responder might use to save the life of a dying person, and to call such a use of force violence does not accord with a common understanding.  He attempts to resolve this by positing that there is a need to distinguish between force and coercion, claiming that, “Violence is, of course, one way of coercing, but only one,” implying that coercion is a necessary consideration for determining whether violence is present, though coercion being present does not, in and of itself, mean that violence is necessarily present (259).  He does not make the claim that violence is ever not coercive, which leaves open the possibility that violence is always coercive in some way. 
Another consideration left unaddressed by Coady is the idea of whether or not a threat of force is a de facto use of force.  This author is inclined to believe that threats, explicit or not, are acts of force.  One potential problem with this particular understanding is whether the threat needs to be intended, or if the perception of coercion by another is enough to claim the other has used force, though unintentionally.   While Coady did not define force, here is a workable definition from the OED: “An influence operating on a body so as to produce an alteration or a tendency to alteration of its state” (“Force” def.11.a.). This definition of force would allow for the possibility of violence being done on a subject strictly through the force of words and their effect (influence) on the subject.  However, Coady’s preference for a strictly physical understanding of violence would likely cause him to reject this understanding of force.
               Newton Garver, in his essay What Violence Is, explores the etymology of the word violence before attempting to define it.  He says the word comes from the Latin words ‘vis’ (force) and ‘latus’ (to carry).  He then shows how those two words come together in the present participle ‘violans.’  Another word that comes from this source is ‘violation,’ giving the sense that the force being carried is to be used to violate something (171).  Assuming this is true then violence is the application of force that violates someone.  To understand the idea of violating a person requires an acceptance of the idea that people possess rights that are inextricable from their personhood.  Garver is “forced to accept natural rights in order to understand the moral dimensions of violence,” and goes on to assert that “the most fundamental right a person has is a right to his body.”  Garver further claims that in addition to this fundamental right, there are things apart from one’s body that are necessary to one’s being.  One such thing is “a kind of dignity or ‘autonomy,’ as Kant put it,” an aspect of which is one’s right to the product of one’s labor, including the normal consequences of one’s actions (172).  Garver then proceeds to discuss a typology of violence that centers on whether it is personal or institutionalized and whether it is overt or covert (173).  This typology results in violence being defined as force directed at a person which results in a violation of the person (including their property, tangible and intangible), whether overt, covert, personal, or institutional.  Even with this definition there is the same problem as mentioned previously regarding whether or not the violence needs to be intentional or not.  As stated, unintentional violence could be nothing more than a less than kind word spoken to the wrong person, at the wrong time, resulting in that person committing suicide because of the immense emotional pain they suffered as a result of those words.  While unlikely, the fact is that from the suicide’s perspective, they were violated.  A possible definition of violate that may mitigate this problem would need to revolve around the idea of harm, damage, or injury.  One thing this particular view does is ignore whether an act is justified or not, as in the case of capital punishment and murder respectively, but would require one to determine whether or not it was the spoken word that did the damage to the suicide victim, or whether the suicide wrongly perceived a harm that was not truly present and then harmed themself.  
This conception of violence is substantially broader than Coady’s, and somewhat narrower than Galtung’s.  Garver also addresses two very important ideas about violence, only one of which was given any real focus by the other authors discussed.  Like the others, Garver states that violence is inherently a moral concept, but in his case the moral notion is a result of the idea that violence is a violation, though the violence may or may not be justifiable or excusable.  Unlike the others, however, he states that what is clear to him is that there are varying degrees of violence.  Everyone will have a sense of where a violation will fall along the scale even if they differ greatly in where the violence should be placed on the scale.  This is merely the result of people having different experiences and different ideas about what is and isn’t a violation and how bad a particular violation is in relation to other, different violations.  I agree with Garver that “it is possible to achieve considerable intersubjective agreement about comparisons of pairs of cases” when judging the relative degrees of those violations (181).

Works Cited
Oxford English Dictionary. N.p., n.d. Web. 24 Nov. 2013. <http://www.oed.com/>.

Monday, August 26, 2013

Unavoidable Conclusions: Reasoning & the Role of Identity

          Supreme Court Justice, Sonia Sotomayor, delivered a speech in 2001 on the role one’s identity plays in making judgments.  The transcript of this speech was published in the Politics section of the May 15th issue of the New York Times online. The speech was largely about equality and minority representation in the judiciary, and how increasing minority representation will undoubtedly change how cases are decided.  Her thesis was that the individual experiences of people, specifically those who make up minorities, because of their different perspectives from their positions within the society, affects the way they see the issues they deal with and necessarily will result in different judgments.  Sotomayor’s beliefs were echoed and expanded on in Linda Martin Alcoff’s article, Sotomayor’s Reasoning, in the March, 2010 issue of “The Southern Journal of Philosophy.”  There can be little doubt that experiences and perspectives leave an indelible mark in a person’s psyche and affects how they interpret their environment, situations, issues, and no two people can possibly see a complex problem and interpret each of the components with exactly the same.  While this may be a fact, some believe that to accept this position threatens the idea that there is a truly objective measure of justice, and is why merely giving voice to this fact can be seen as undermining the idea of justice in a way that might make many believe that justice is purely subjective, arbitrary, and grounded in nothing more than another’s beliefs, and could result in a less civil society as the rule of law cannot have been based on a universal and objective sense of justice.
Sotomayor pointed out the changes that were already happening in court rulings as a result of increasing numbers of women judges, specifically in the arenas of family law and domestic abuse.  One could easily argue that her speech was a criticism of objectivity in general by denying its existence with her use of the quote, “there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging,” by Professor Martha Minnow, and her stated acceptance that the experiences of a person affects their decisions.  Sotomayor referenced a position held by Justice Sandra Day O’Connor that states, “…a wise old man and wise old woman will reach the same conclusion in deciding cases.”  The rebuttal of O’Connor’s sentiment, which very nearly kept her from having her appointment to the Supreme Court confirmed by the Senate, was, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”  This statement by Sotomayor resulted in a firestorm in the world of politics and the press, and during her confirmation hearings made the decision to recant that statement.  That she qualified her position by noting that not only are there variations between groups, there are wide variations within groups, and used Justice Clarence Thomas, a conservative leaning African-American as an example of just how extensive within-group variations can be.
Linda Martin Alcoff addresses the concerns of Sotomayor’s critics who feel that identity must not play a role in judging, and fear that an acceptance of views based on identity based experiences will lead to partisan identity politics.  This fear stems from the critics’ belief that identity groups discard concepts of justice and begin political debates and arguments with their self-interested conclusions already firmly fixed to achieve a beneficial end for themselves, and are not approaching disagreement with the goal of fairness or justice.  Alcoff goes on to show how identity, regardless of its content, has a subconscious affect on how people behave by citing various scientific studies and experiments.  These various studies show that if snap-decisions, also called “thin-slicing” are based on prior knowledge, experiences and perspectives then it becomes possible to make changes to those variables in a way that future generations’ decisions and judgments will differ from those of prior generations.  This is important because people will believe, for example, that they do not treat others differently based on color, but the experiments show that their actions do not agree with their belief.  Alcoff asserts that learning one’s beliefs and behaviors do not agree with each other can have, “transformative effects on our motivations and modes of attentiveness” (131). 
Alcoff closes her article by explaining Hans-Georg Gadamer’s concept of the hermeneutic horizon.  Hermeneutic is a fancy philosophical way of saying interpretation.  The horizon is explained as, “a substantive, perspectival location from which the individual looks out at the world; thus it is…in constant motion both temporally and spatially” (135).  The idea is that where a person is physically, and within the social groups they are a part of, and the time at which something is perceived or experienced, makes a difference.  If this view is accepted, and it is further accepted that no two people can occupy the exact same hermeneutic horizon, then it must be accepted that interpretation of events and circumstances must vary between individuals and groups.
While both Sotomayor and Alcoff point out the role identity plays in reasoning and reaching conclusions, and they both address to varying degrees what shapes ones identity, what is missing is an explanation of right reasoning or good judgment.  The ideal of justice requires both.  A critic interested in seeing that legal institutions seek justice will need reassurance that justice is not sacrificed by the role identity plays in adjudicating disputes, and the knowledge or belief that social identity affects adjudication needs amelioration.  A civil society, especially a democratic one based on traditional western thought, needs to believe that justice is attainable within its legal system. 
While it is understood that the focus of their arguments was to identify the role identity does play, and not to rectify the disconnect between the commonly understood belief that knowledge and experiences shape reasoning and judgment, and the also commonly understood desire for blind, objective justice, it is important to look at how their arguments may be used this way.  Sotomayor lent much credibility to the idea that how people and societies understand justice is constantly changing.  By pointing out the various changes in law resulting from the women’s suffrage movement and the civil rights movement, she shows that the justices who had opposed these changes over hundreds of years did not have a monopoly on the meaning of justice.  This signifies that, generally, when it comes to questions of justice, regardless of their belief in justice and their goal of seeing that justice is served, old white men in robes and wigs were either wrong in their interpretation or that justice itself changes, and not just people’s understanding of what is just and unjust.  Providing, for the sake of the critics, that justice is an ideal that does not change, it becomes necessary to explore how the understanding of justice has changed, arguably for the better. 
As Sotomayor pointed out in her speech, the most profound changes to how justice is understood by society have taken place in the legal system and were spearheaded by minorities.  This indicates that there is a possibility that the broader the experiences and the more empathetic one is to those who have experienced what a judge has not experienced, the closer the system gets to realizing and incorporating “true justice”.  This tactic would require the critics to acknowledge that judges and people in general are always fallible as the result of their lack of knowledge and experiences, and that the search for justice is just that, a search; a striving for a currently unrealizable ideal.  It further requires the acknowledgment that the only practical way to broaden the experience and empathy, in the interest of justice, is to involve more diversity into the judiciary.  Treating the conflict between the realities of human life and the search for an objective justice in this manner does not deny that there is, or may be, such a thing, but serves as a clarion call to diversity in the interests of getting closer to the ideal of justice that people have such a strong desire for. 
Personal Comments & Observations  
I remember the controversy over Sonia Sotomayor’s comment fairly well, but what I don’t remember hearing was others aggressively coming to her defense.  I also remember thinking at the time that her comment was poorly phrased and warranted the criticism, but there was no way she could have meant exactly what she said, though if so, she should not be confirmed.  What I did not do, however, was track down the speech in an attempt to gain context for the comment.  Reading her speech just proves that context is vitally important.  I still hold that the comment, on its face, was not just impolitic, but wrong.  There is no way, after examining the entirety of the speech, that anyone can reasonably claim that she honestly believed that merely being Latina put her into a better position to determine what is and is not just in all possible disputes.
Considering the importance of context, the source of criticism levied against Sotomayor for her comments, and the valid concerns held by the critics, I find it odd that Alcoff’s piece did not address the idea of justice.  While she made a great argument that people’s knowledge, experiences, and perspectives from within society affect their interpretations, I’m not sure the argument was very relevant to the concerns.  Alcoff made a case for what I believe most people already know, at least intuitively.  If there are any arguments that both support the ideal of justice, or at least what should count as acceptable judgment, in a civil society while incorporating the facts that there will be different interpretations at some level, I’d love to know of it.  A quick search on the library database and Google scholar was fruitless.
I think one important criticism of the perceived status quo that was missing from the speech and Alcoff’s response was the fact that there are already stated interpretive preferences by the Supreme Court justices.  An exploration into what leads a judge to apply a specific type of frame to their interpretation of the U.S. Constitution, whether contextualist, literalist, or framer’s intentions, might have been somewhat effective.  This could have forced the critics to acknowledge that the interpretive problems they have with justice are already present to some degree, and the problem they have with allowing, for example, Sotomayor’s or Thomas’, or O’Connor’s interpretations, may be based to some degree on fear of “other” and not merely on their concerns that differing interpretations are an inherent risk to the concept of justice.               

Works Cited
Alcoff, Linda Martín. "SOTOMAYOR'S REASONING." The Southern Journal of Philosophy. Volume 48. Issue 1. (2010): 122-138. Print.
Sotomayor, Sonia. "Lecture:‘A Latina Judge’s Voice’." The New York Times. May 15 (2009). Print.