Full text of gene patents judgment

Here is the published opinion of Justice Sweet, thanks to JJE in the comments yesterday. It's 156 pages, so I'm not sure when I'll have time to read the whole thing. I'll try to get to it in the next few days. Meanwhile, it's a resource for those who are researching the issue of gene patents or just interested in it.

New York court strikes down gene patents

I don't know whether the original judgment is available - but over at Science Progress, Andrew Plemmons Pratt reports that US District Court Judge Robert Sweet handed down his judgment last week in the long-running dispute about gene patents. This case is based on litigation brought by a coalition of groups that have sought to challenge the controversial patents owned by Myriad Genetics on two genes connected to breast and ovarian cancer.

The ruling went further than invalidating the patents on the relevant gene sequences themselves. It also invalidated Myriad's patented methods on the processes for analysing the genes.

There has long been debate as to whether it is legitimate to patent things found in nature, such as DNA sequences. Prima facie, such things should not be patentable, as they are not inventions or anything similar, any more than other things that scientists discover (the moons of Jupiter, perhaps) are inventions. In principle, it should, perhaps, be possible to patent methods for isolating and identifying genes, processes that make use of genes, genes that have been modified to achieve some purpose, but not naturally-occurring DNA sequences. It is well known that this kind of distinction has become virtually meaningless.

In addition, there is an economic argument that patents on short sequences of DNA are contrary to public policy because they actually hinder innovation. A tragedy of the anti-commons is created in which highly fragmented property rights can mean that no one in particular is able to proceed to apply scientific knowledge in useful ways. Or so it is argued.

And of course, there are also various spooky arguments, such as that genes are somehow the province of God or a spiritualised Nature that we must not violate.

I agree with the argument that naturally-occurring sequences of DNA are not themselves the kind of thing that should be patentable, and that patents purporting to relate to something else (such as processes) are often contrivances. Still, I'd like to know more about why Myriad's process patents were struck down. If I find the actual judgment, I'll comment further.

The case will be appealed, and it may even find its way to the US Supreme Court. This is a fundamental issue in intellectual property law, and with far-reaching implications, so there'll be further opportunities to discuss the issues.

Some speech deserves to be marginalised

The Good Friday editorial in yesterday's Melbourne Age newspaper gallops over a whole host of issues involving the relationship of religious belief and non-belief in contemporary society. I can't deal properly, or at all, with every irritating sentence. For example, what can I say about the observation, cited from Barney Zwartz, that the atmosphere of Melbourne's recent Global Atheist Convention (GAC) resembled that of evangelical meetings that Zwartz has covered? Well, it's a cheap shot, for a start, and in any event this can only mean he's been to very tame evangelical meetings.

If Barney Zwartz thinks the good-humoured, but relatively sedate, atmosphere of the GAC resembled the atmosphere of an evangelical meeting, then he hasn't been out much. Barney, you need to get yourself along to some wilder and wackier evangelical meetings, like some of the ones I've been to in my time.

Again, I don't want to say much about the issues of whether or not to retain Christmas and Easter in modern liberal-democratic societies characterised by pluralism and by lawmaking based on secular reason. As a non-believer (to use the term popularised by Barack Obama) I'm relaxed about these festivals. They were originally pagan, and they are largely pagan again. I feel no affront that they continue, even if some of the sanctimonious pontificating (as it were) by religious leaders at these times of year makes me want to grab for the nearest sick-bag.*

But one claim in the editorial does merit more than a quick, off-hand comment. This is an issue relating to free speech and to the marginalisation of religious speech.

According to the editorial, "the rhetoric of some militant atheists, which is dogmatic rather than sceptical in tone, should worry anyone who values tolerance and cultural diversity." Oh, go on: please, name names.

It then adds:

It is not only censorship - now rarely encountered in the West - that can threaten freedom of speech, but also any campaigning movement that denies intellectual legitimacy to its opponents.

Well, I'm not so sure that censorship is rarely encountered in the West. This seems like an odd thing to say at the very time when our federal government is planning large scale censorship of the internet that will be wide open for scope creep in future years. But leave that to one side.

Some ideas do merit marginalisation, and some opponents do lack intellectual legitimacy. That isn't to say that these ideas and opponents should be censored. There are many reasons why it is best to allow people to speak their minds. But the political freedom to speak your mind does not entail a right to be taken seriously or given deference, or even to be accorded intellectual legitimacy. Indeed, there are plenty of ideas that people should be free to advocate, but which are so clearly foolish or even repugnant that they will, quite rightly, be ignored or treated with derision. Often, ideas that are treated with respect in one generation come to fall in this category in later generations.

For example, a contemporary defence of slavery would fall on deaf ears. Or it might, depending on its context and the way it was expressed, provoke nervous laughter, scorn, repugnance, or even fear. It would not receive a respectful hearing, and anyone who put this idea forward would instantly lose all intellectual credibility (at least in Australia!).

Of course, we should not censor someone who wants to defend slavery. They should have that freedom. They can plug away with their arguments and try to persuade us to take them seriously. But the playing field is strongly tilted against them, and quite properly so. The onus is on them to explain why it shouldn't be. Likewise for someone who advocates torture or suicide bombing or female genital mutilation or forced abortions.

Furthermore, to take less troubling matters, it is unlikely that anyone advocating public policy by telling us that her proposals are in accordance with the will of Aphrodite or Zeus or Odin would receive a respectful hearing in 21st-century Australia. She should be allowed to put her case, can try to persuade us that it is not so outrageous, that it deserves a respectful hearing, and so on. However, the playing field is tilted against her speech, and again quite properly. The onus is on her to explain why not. Prima facie, the will of Zeus is a very poor reason for public policy, and anyone claiming otherwise will, quite properly, be marginalised in serious policy debates.

While slavery is an extreme case, there are some other cases that are almost as extreme. One would be any proposal to reinstitute the criminalisation of homosexual conduct. I hope that we have now reached a point in our society where any proposal along these lines would be looked at with no more sympathy than a proposal that we reinstitute slavery. Why inflict serious harm - in the form of criminal penalties and stigma - on somebody merely because of his or her consenting sexual practices? The idea is barbaric and outrageous, and it no longer deserves a respectful hearing. It had its chance, and we can put the very idea behind us.

Over time, some speech does become marginalised, and there is nothing wrong with this as long as political freedom remains and the proponents of this speech are not condemned as criminals or otherwise subjected to punishments by the state. In Victoria, where The Age is published, there is a controversial and poorly-drafted code in place forbidding some speech that supposedly "vilifies" people on the grounds of religion. This should be repealed; if it is replaced with anything, and I'm not sure that it should be, it must be a very narrowly-drafted provision that bans only the most extreme kinds of hate speech that dehumanise classes of people (homosexuals for example) or foment violence. We should reduce actual censorship to a minimum.

But some ideas, though not censored, should be given only a marginal place in our society. In every generation, we continue to debate which those are. I am hopeful that future generations will include not only the examples I've given, such as the ideas of reinstituting slavery or punishing homosexuals, but also such examples as the ludicrous idea that the Earth is only 6000 years old (contrary to all conclusions from rational investigation). Likewise for the idea that there is something even "sinful" about (as opposed to grounds for banning) consenting homosexual conduct between sufficiently mature people, or that "sin" attaches to the use of contraceptives or to masturbation. Like the advocacy of slavery, these foolish ideas no longer deserve a level playing field in our society. Let them be freely derided, ridiculed, and driven to the margins. The sooner, the better.

As for religious leaders, they certainly do not deserve the kind of deference they currently receive, or the megaphones they are provided by the news media for their pronouncements. They do not deserve to be looked upon as moral or community leaders, or to be given a privileged voice in public debate. Some - such as those Protestant fundamentalists who claim the Earth is only 6000 years old or the celibate, white-haired dinosaurs of the Vatican who think that the use of contraception is a sin - deserve to be accorded little more intellectual credibility than would be given, in a modern city such as Melbourne, to a slavery advocate.

Not all ideas deserve to be taken seriously and considered respectfully, and not all people deserve to be accorded intellectual legitimacy. We can argue about who and what falls into which category, but there is no doubt that some speech deserves to be marginalised ... and that certainly applies to a lot of religious speech. There's no need to be backward about saying so.

===

* Leaving aside the current mass, so to speak, of extraordinary statements by the Catholic hierarchy as they defend their thin shreds of credibility over institutionalised sexual abuse of children.

A case note on the Simon Singh appeal

Case: British Chiropractic Association v. Simon Singh

Court: Court of Appeal for England and Wales (2010)

Facts: The British Chiropractic Association (BCA) contended that it had been defamed by Simon Singh, a scientist and science writer, who'd criticised it in an op.ed. piece in The Guardian, including this passage:

"The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."

The trial judge had been asked to determine, as preliminary issues, (1) what defamatory meaning the words bore and (2) whether they constituted assertions of fact or comment. He held that the words would mean to a reasonable reader:

i) that the BCA claimed that chiropractic was effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, although it knew that there was absolutely no evidence to support its claims, and

ii) that by making those claims the BCA knowingly promoted bogus treatments.

Further, he held that these were assertions of fact, not expressions of opinion. This meant that Singh would need to prove that they were factually true or lose the case. [Proof that the BCA knowingly promoted bogus (or "quack") treatments would have been almost impossible.]

In appealing, Singh argued that the trial judge elided the issues of meaning and comment when he used an unwarranted "verifiable fact" test to eliminate comment as a defence; overlooked the context of the words and paraphrased them damagingly; and marginalised or underrated the value placed by the law on public debate regarding issues of public concern.

Held: Appeal allowed.

The court said:

The issue posed by the judge is in reality two distinct issues: first, was there any evidence to support the material claims? and secondly, if there was not, did the BCA's personnel know this? If, as Dr Singh has contended throughout, the first issue is one of opinion and not of fact, the second issue ceases to matter.

The trial judge erred both in conflating the issues and in treating the first of them as one of verifiable fact. It is one thing for a court to investigate the truth of clear assertions. It is another for it to "evaluate published material as giving no evidential support to a claim and, on the basis of this evaluation, to denounce as irresponsible those who make the claim." The material words were expressions of opinion. In the scientific context of this debate, no evidence (or "not a jot of evidence") meant no worthwhile or reliable evidence. This is an evaluative comment which a court cannot treat as one of verifiable fact. Singh was offering an opinion, backed by his reasons for it.

Once this is established, the word "happily" loses its sting, and it is in any event doubtful that happily meant more than, say, "blithely", as opposed to "knowingly". Accordingly:

The natural meaning of the passage, in other words, was not that the BCA was promoting what it knew to be bogus treatments but that it was promoting what Dr Singh contended were bogus treatments without regard to the want of reliable evidence of their efficacy [which is a matter of opinion]...

Singh was entitled to a fair comment defence (the court observed that it would be better henceforth, in contemporary circumstances, to refer to this as "honest opinion"), and it was necessary to substitute the court's preferred meaning for the trial judge's. Accordingly, Singh can now use this defence in the trial. [The effect of this will make the case of the BCA far more difficult.]

Comment: The judgment purports not to create new law, despite the recommendation that the defence of "fair comment" henceforward be called "honest opinion" within its jurisdiction. It claims to apply existing law to the facts of the case before the court. Nonetheless, it gives judicial backing to the high importance of free speech on matters of public interest, and of scientific controversies being settled by the methods of science rather than by litigation. The dicta on these matters will be persuasive in future cases.

In future defamation cases in England and Wales, opinions on matters relating to the cogency of scientific evidence will be treated ... as opinions. [Edit: There needs to be some limit to this, though, as Scepticlawer worries about over here. Beyond a certain point, well-established science must simply be accepted by the courts as fact.]

Should the case proceed to trial on the basis of the appeal court's ruling, it's difficult to see how the BCA could win. Its better tactic might be to appeal, but the judgment is unanimous, comes from a very strong bench of the Court of Appeal, and is (I submit) clearly correct. Its logic appears unassailable.

If so, a further appeal by the BCA would have little prospect of success. Will the BCA now try to settle, or will it risk a further appeal hearing? Perhaps it will offer to settle all accrued causes of action between the parties on the basis that they each bear their own costs to date. But Singh is now in a good tactical position, and perhaps he can do better than that (should he push for his own costs, or at least part of them? Obviously, his lawyers will be thinking about what settlement might be realistic and acceptable...).

In all, the outcome to this point is a highly favourable one for science and for free speech. We await the next step.

Jack of Kent on the Simon Singh case

Simon Singh has won his appeal in the long-running defamation case brought against him by the British Chiropractic Association. Note that this was only an appeal on a preliminary point, but it makes it much more likely that he can defend the substantive case.

I'll try to find time to read the whole judgment and provide an analysis. Meanwhile, Jack of Kent has given a summary and promised a full analysis soon.

Oh, and I hope it's clear that this is a huge victory for freedom of speech! Yay!

Edit: This portion of the judgment brought tears to my eyes:

Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:

"I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought."

That is a pass to which we ought not to come again.

Setting the bar too high?

I'd like to move onto some other things, including a couple of very important court cases where judgments have issued this week - the case on gene patents in the US, and the Simon Singh libel case in the UK.

But one loose end from all the debate about Sam Harris was whether we are setting the bar too high by maintaining the "is/ought" distinction.

My answer is, "No." Hume pointed out that no number of propositions that use the copula "is" can ever logically entail a proposition with the copula "ought". Yet, he says, we often see philosophers slip into "ought" conclusions without ever explaining how they did it. That's a shrewd observation, and we should not throw it out in the name of being able to study morality more easily. It imposes a discipline on us, that if we start introducing "oughts" we must explain how we did it, and it can't simply be a logical entailment from a string of "is" statements.

Hume's own approach is to connect "ought" with human psychology - he tends to speak of desires, but he means this in a broad sense. Today, we should talk, with some vagueness, about desires, values (or maybe this should be valuings), fears, hopes, sympathies, etc. This is a place where the "etc." is okay, because it is possible in principle to sort out the detail of how all these things relate to each other, though it's difficult to get precisely right in practice. These aspects of human psychology connect up with facts about the world to give us reasons, or rational motivations, or "oughts". For example, if I desire the amelioration of suffering, I am rationally motivated, other things being equal, to give money to certain charities (if they will be effective), or to interfere (if I'm likely to be effective) to stop a bully beating up someone smaller.

There are other ways to try to derive "oughts": e.g. the will or purposes of a God, some process of souped-up Reason; some kind of non-natural, metaphysical properties of things. In my view, none of these work. (Note that the Euthyphro problem remains even if we invoke the will of God or the gods.)

We are left with a world in which "oughts" ultimately depend on features of human psychology (plus facts about what will be effective). Since I can't see what else they could ultimately depend on, I'm not too embarrassed by this, but I do concede that there is this psychological craving to find a basis outside of human psychology, i.e. an external or "objective" basis. Even I can get myself in a mood where I feel this. It's the creepy feeling of not wanting to deny that torturing babies is not just really wrong ... but really, really wrong.

But that external basis doesn't exist. Therefore, morality is not objective: it is not grounded solely in something external to our psychological makeup. Since our psychological makeup is not identical from person to person, this leaves room for some indeterminacy, but perhaps not all that much if we can agree on all the non-moral facts. The more we agree on the facts, the more we tend to converge on agreement about what should be done.

Morality is, however, non-arbitrary: it is grounded in widespread human values, sympathies, desires, needs, etc., combined with facts about the world.

You might think that "needs" are objective, but even what counts as a need has some subjective element to it; survival itself is not important because of some external thing such as the will of a god, but your survival is important to you and to those who love you or depend on you. Even what counts as your flourishing has some subjective element; it will depend on what you value, or on what another person making judgments about your flourishing (or otherwise) values. I can't see any prospect of a plausible concept of flourishing that is not value-laden (laden with the values of somebody) to some extent.

The elements of human psychology that I've mentioned - desires, sympathies, fears, and so on can give us reasons to act in ways that are not narrowly selfish, e.g. if we want to be able to enjoy loving relationships, live in peaceful societies, or ameliorate some of the immense suffering in the world. They can give us reasons to favour certain laws, to support entire systems of social or legal norms that govern conduct, or to try to inculcate certain dispositions into children. We have many reasons to act in ways that are not narrowly or short-sightedly self-interested. Importantly, our desires, sympathies, fears, and so on can give us reasons to try to dismantle moral systems that fail to advance such things as human happiness (which almost all of us value) and which actually operate cruelly.

All of this can be examined objectively, in the sense of carefully, disinterestedly, attempting to get at the truth rather than to confirm our biases, without throwing away Hume's point. In fact, Hume's point is a fundamental finding that we ought(!) to work with if we wish to make progress in the study of morality.

Some thoughts on the concepts of "objective" and "subjective" that are in play

Moving on

I'll return, maybe tomorrow, to some loose ends about the Sam Harris debate. Meanwhile, I note the info from one commenter that Harris has now apologised to Sean Carroll. I'm not sure exactly what he said (though I'll check), but it sounds like a very positive move; hopefully Sean will be able accept the apology, and that will help us all move on constructively.

Meanwhile, this post is a slightly re-edited and slightly enlarged version of a long comment that I just made over at RD.net, where I began by saying that those of us who say there is a subjective element in morality are really saying that morality has something to do with the psychology of individual human beings, which may, indeed, be similar amongst all (or almost all) human beings. Hume would have been fascinated by recent psychological research, but he'd probably think it confirmed his views (morality is based on human nature) rather than undermining them. It was important to Hume that we all share fundamental sympathies as part of our psychological makeup. We have a natural empathy, at least for other humans (and probably beyond), a natural unwillingness to cause suffering.

For now, I'll stick with this rather than trying to sort out where I agree and disagree, line by line, with the reply to critics by Harris. The latter would be incredibly time-consuming and would lead to a book-length post.

Objective, subjective - oh my!

What sophisticated subjectivists are saying is not that morality cannot be studied objectively. We are saying that it does not come from a supernatural or metaphysical source or from some kind of pure reasoning that leaves out contingent facts about human psychology. The classic "objectivist" positions, such as those of Plato, Kant, and Divine Command theory deny this. Modern Kant-like theories such as those of Thomas Nagel, Christine Korsgaard, and Alan Gewirth appear to do likewise, though we could get into some very interesting debates about the subtleties of those theories. By contrast, such classic theories as those of Hobbes and Hume relied on claims about actual human nature, in all its contingency.

I'm with Hobbes and Hume. Although it's a very large claim to make, and I can't defend it here, I think that modern psychological research should incline us to take the side of Hobbes and Hume, rather than the side of Plato, or Kant, or Divine Command theory.

As I've said elsewhere on this blog, part of the problem seems to be that various conceptions of "objective"/"objectivist" and "subjective"/"subjectivist" are in play. Sam Harris' position could be described as a subjectivist one insofar as he avoids such things as Kantian pure practical reasoning (which is supposed to apply to all rational creatures, irrespective of their psychological makeup), Platonic metaphysical ideas, the will of God, and so on. He wants to ground morality in human psychology (just as the arch-subjectivist, Hume, did).

Moral naturalism

However, his response is to adopt a position known as moral naturalism. I.e. he seems to want to define "morally right", "morally wrong", etc., in terms of facts about the natural world, basically facts about well-being. Leaving aside whether we have a non-moralised conception of well-being for humans, this is, of course, remote from the classic "objectivist" positions with their supernatural, metaphysical, etc., claims.

Part of the problem is that Harris simply didn't express this very well when he said something like "values are facts about the welfare of conscious creatures". That caused a lot of confusion. If he is advocating moral naturalism, he should say, "moral facts are facts about the welfare of conscious creatures". It sounded as if he was trying to say something much more direct than he apparently was about the fact/value distinction.

The trouble with moral naturalism, is that it seems to leave open whether you actually ought to act morally! Since morality is no longer defined in terms of what you ought to do, but in terms of facts about the natural world, moral claims translate in a way that does not immediately give you a reason to act on them.

To try to explain this, a non-naturalist says:

"It is morally good to avoid torturing babies."

This translates as:

"Torturing babies is something you ought to avoid doing."

I.e. the sentence is making a claim about what you ought to do and not do. The claim may be true or it may be false, but there's no doubt that such a claim is being made.

But the naturalist translates the sentence as, for example:

"Torturing babies causes pain to conscious creatures."

This sentence makes no claim as to whether we ought to do it or not. For most people, that is surprising. We take it that moral claims are supposed to be action-guiding, telling us what we ought or ought not to do, rather than just providing facts about the world. (This is the kind of thing that is at stake in the confusing debates about "internalism", "externalism", etc.)

I could be told by a naturalist, "It is morally good to avoid torturing babies." I then translate it using the naturalist's definition of "morally good". And I am then entitled to complain, "But you still haven't told me whether I ought to do it!"

So the naturalist still needs some kind of story about what I ought to do. And again, that story is likely to involve things about human psychology - I want to avoid causing pain and so on - rather than things about the will of God or the existence of metaphysical properties or whatever. The total story about how I should act is still going to involve those sorts of elements.

Human psychology again

I don't think Sam Harris necessarily wants to deny any of this, but when he uses language such as "objective" he opens this entire can of worms. That's (partly) why I keep saying that it would be better to abandon the traditional language which has all this baggage and instead say, with some kind of rhetorical flourish that we know he is capable of: "Morality is not arbitrary. It is based on human needs and human values. Those values (typically?) relate to the welfare of conscious creatures."

Again, the arch-subjectivist, David Hume, would agree with this. As far as I can see, the arch "moral sceptic", JL Mackie, would also agree with it. Mackie's vaunted scepticism amounts to this: he thinks that anything like the classic objectivist positions is wrong; but he also thinks that something like this pervades everyday moral thinking; therefore he concludes that an element of error pervades everyday moral thinking. I tend to agree. But most people have not read the second half of Mackie's book (Ethics: Inventing Right and Wrong). He certainly doesn't think that this error is fatal to our ability to engage in moral reasoning. Again, I agree.

And, to labour the point, those of us like me, Hume, and Mackie, who say that morality has a subjective element, are not simply saying (unless we have been hit by the stupidity stick and have become very unsophisticated) that "It's all relative, man," or "Dude, it's all subjective". We are saying that morality can be studied objectively, that many objectively-true statements will result, but that many of the important ones will be about the psychology of human beings. Thus, we are denying the classic "objectivist" positions that ruled this out, at least at the base of morality, and found the basis of morality in something outside human nature, and in that sense "objective": say, a Platonic form or the will of God or objectively-binding pure practical reasoning.

My point about psychopaths related to this. It was that we can easily imagine rational beings (not necessarily, as I pointed out, like real psychopaths ... we might have to imagine a Martian human-eating monster) who do not share our psychological makeup, and act differently from us, even in ways we'd consider immoral, without making any mistake of reason. We can imagine that these beings are not mistaken about any matter of fact and are not reasoning poorly. The point was directed at such positions as Kantianism, and Harris should actually agree with it.

David Hume can out-consume ...

We don't even (necessarily) need to say that there is an unbridgeable "is"/"ought" gap. Even Hume didn't say that when you look up the famous passage in the Treatise on Human Nature. Rather, he complained that many philosophers go from sentences containing "is" to sentences containing "ought" with no explanation of how they did it. Read it closely. Then, when you read the passage in the larger context of the Treatise he appears to be saying that the explanation will always have to involve such things as human desires. In other words, Hume thought that the way we bridge the "is"/"ought" gap is via human psychology.

I don't think that Harris really disagrees with this, either, but maybe he'll turn up and correct me. In any event, he's very hard on Hume in his response to his critics ... but the reason to go back to Hume isn't to argue from authority, as he seems to think his critics are doing. It's to look at the original arguments that are actually more powerful and subtle than the parodies and drastically abbreviated versions that are thrown around freely in much of the discussion today. Admittedly, they have never obtained universal acceptance from philosophers, but nor have they ever been decisively refuted. Going back to what Hume actually said is a good way to get our bearings.

Another manifesto that I won't be signing

The new "Neo-Humanist Statement" on Paul Kurtz's website is in many ways a good attempt at a synthesis of what I and most of my friends believe and would want to support. Importantly, it contains a very useful let-out clause that I recommend to people who are drafting manifestos: "Those who endorse this Statement accept its main principles and values, but may not agree with all of its provisions."

With that in mind, you may want to sign it. However, you might also want to consider the counter-argument over here, from Ron Lindsay - and the comments following. In the end, I'm with Lindsay. I could just about agree with the statement's "main principles and values", but there is just too much detail that might come back to haunt me. In particular, it is too specific in its plans for international regulation and is too negative about the current "New Atheism". Given the let-out clause, I might have been prepared to sign something shorter, less specific, and less carping about the efforts of allies.

However, my readers will want to be aware of such developments. By all means sign the statement if you think you can do so without too many reservations (and bearing in mind the let-out clause).

Sam Harris clarifies position, replies to critics

For the moment, this is just a heads-up. As I said previously, I think that Harris is approximately right, but I don't think he has successfully defended himself against the criticisms that have been made of his fundamental metaethics (e.g. his reply to my point about psychopaths or unsympathetic, but rational, alien monsters misses the point). Still, see for yourself.

There's a note of exasperation in the whole piece. Understandable, I suppose, but most of the people he's replying to are his allies on more general issues, and are attempting to engage in courteous and rational discussion. We simply have our own views about the relationships among metaethics, normative ethics, empirical inquiry, and so on. Some of us may even fondly imagine that it would help him refine and strengthen his position if he accepted the force of some of our points. We're basically on his side.

In my case, it's a well-developed view. I don't have a book coming out about it, but I've sketched aspects of it in refereed journal articles. The book is a project for another year.

I'll return to this in more detail over the next few days.

Moral by definition? (Some slightly technical philosophy.)

Introduction

The recent TED talk by Sam Harris brings important metaethical issues into the popular arena. Is there a way to establish the objectivity of morality, and in particular the objective bindingness of utilitarian morality?

I'm afraid not. A good place to start with this is Peter Singer's concluding chapter of Practical Ethics, immediately prior to an appendix about his unfortunate experiences of being silenced in Germany. Here, Singer presents a searching inquiry into the question of why we should act "morally" in a sense that he defines (which amounts to acting like a preference utilitarian). This chapter, which is actually entitled, "Why Act Morally?", evidences how difficult - nay, impossible - it is to establish that anyone has a reason to be moral, or act morally in the stipulated sense.

Morality by tautology

Singer makes clear that he is not using the word "morally" and its cognates, such as "moral", to refer to action in accordance with whatever principles we happen to find overridingly important. This must be stressed, because it means that he cannot use the argument: acting morally is acting is acting in accordance with the principles that are overidingily important; we ought to act in accordance with the principles that are overridingly important; therefore we ought to act morally. That is all just tautological, and gets us nowhere.

Nor, evidently, do these words ("morality", etc.) refer to actions that we might have best reason for, all things considered, in which case a similarly tautological argument could show that we ought to act morally. Again, that gets us nowhere.

Such definitions do not tell us what actions are those we have best reason for, all things considered, or what actions are in accordance with principles that are overridingly important. There seems no room for doubt that we should act morally in these senses of the word - it's pretty much true by definition - but that tells us nothing at all about the ways in which we actually should act.

Morality as impartiality

Rather, Singer defines "morality" as action that is impartial with respect to the interests of all affected sentient beings. To act morally in this sense, then, I must first accept that my own interests do not count more than the interests of any other being that actually has interests. I then respond by acting in a way that maximises - or, perhaps, is objectively likely to maximise - the summed interests of all. I can then be said, according to Singer's stipulated usage, to be acting in accordance with "the ethical point of view".

To illustrate Singer's conception of moral action, if I wish to act in accordance with the so-called ethical point of view, and if I see that Φ-ing (say, selling my house and donating the proceeds to Community Aid Abroad) is the unique way for me to do so in my current circumstances, then it can be said that Φ-ing is what I ought to do.

Notice, however, that I expressed this as a hypothetical imperative. It is what I have reason to do if I already wish to act from the ethical point of view. At this stage, no good reason (some kind of non-moral, or pre-moral, "ought") has been given as to why I should, or might, wish to act in accordance with the ethical point of view. It's no good saying that my interests are not objectively more important than anyone else's. So what? They are still my interests, and I may desire to further them. How have I made any error if I set out to do so? My desire to further my own interests is not the sort of thing that can entail any truth-claims that might be in error. I simply have desires ... and they motivate me.

Thus, Singer's question is actually a question about what reasons (of a non-moral, or pre-moral, kind) there are to adopt the ethical point of view or to act morally, as he defines these expressions.

Universalisation

Singer insists that his definition of morality is more than an arbitrary stipulation. The supporting claim is that morality, even as understood before we get to his theoretical account, takes a universal point of view. This claim, in turn, is supported first by an argument that when we justify our acts in a way that we recognise as "moral" or "ethical", and not just any justification will do. For example, it is not a moral justification if I seek to explain my commission of a murder in terms of its expediency for pursuing, like Macbeth, my "vaulting ambition".

Note, though, that this immediately creates a problem that Singer appears to pass over: surely I can adequately explain my decision to study philosophy simply by stating that (1) I am interested in the subject (which is not, by itself, a justification) and adding (2) studying philosophy breaches no moral constraint that applies to me. Singer's example of Macbeth does not rule out a conception of morality, such as favoured by Kantians, that allows for a wide range of permissible - but not obligatory - actions within certain deontic constraints.

Singer then looks to the historical teachings of a range philosophers and moralists, who have all agreed "that ethics is in some sense universal." However, it is not obvious that all these teachers have considered morality to be universal in the same sense. While Jesus of Nazareth is reported as teaching that we should love our neighbours as ourselves, which may mean giving their interests equal weight, other interpretations of morality's universal component might be much weaker, such as the idea that the same moral constraints, if any, apply to everyone, given relevantly similar circumstances.

J.L. Mackie has suggested that a system of norms need not reach such an advanced level of universalisation as that described by Singer to conform to the concept of a moral system, while Neil Levy also refers to a more basic level when he describes the social need for rules that ensure we are responsive to each other's actions in predictable ways. Elsewhere, Steven Pinker notes that no one could argue with pragmatic success that moral restrictions in a society should apply to everyone but not herself, so the price of having any sort of moral code, with its benefits, is that it also apply to oneself. Similarly, Sober and Wilson emphasise that moral principles are, like other principles, general in application. They specify "general criteria or relevant considerations for deciding what one ought to do." In short, the idea is widely acknowledged in the literature.

Pace Singer, all these considerations, moral principles, rules, or maxims may take many different forms: for example they may prescribe that we act in certain ways to people within the group, or to all humans, or to all sentient beings. They need be universalisable only in the sense of saying that "anyone with such-and-such feature is to be treated thusly." I.e., they involve rules, principles, criteria, and so on, that are of general application.

From his claim that morality has a universal aspect "in some sense", Singer moves to the position that acting morally involves taking into account everyone's interests and give equal weight to them. Hence, it involves giving no more weight to our own interests than those of anyone else.

However, this is a non sequitur. Nothing forces us to adopt such a specific, and arguably extreme, sense of "universal" and related words as Singer actually uses. There are forms of universality that do not require giving equal weight to all interests in all circumstances, but merely that the rules be of general application.

Most obviously, a system such as that favoured by Kant can allow for a wide range of merely permissible actions that might be chosen on some other basis than the one recommended by Singer, perhaps prudential or perhaps eroscentric (favouring those one loves). No such system may be correct, but that is not the issue; the point is, it may well be recognisable as a moral system in our ordinary understanding of what a moral system is like.

Singer himself is aware that the universal aspect of morality can be described in a thin, formal way involving general applicability of norms of conduct, and that this would embrace many theories of correct action. Conversely, as he mentions, there is a danger of giving the universal aspect so much substance as to smuggle in "our own ethical beliefs into our definition of the ethical". Unfortunately, he appears to err in the latter way. As a result, we should be aware that his definition of what it is to "act morally" is not the only one available. But all this, and other considerations adduced in the last few paragraphs, can establish is that we are not compelled to adopt Singer's terminology.

We are not compelled - on danger of being illogical or making a mistake about the world - to define morality in terms of impartially maximising preference-atisfaction while also thinking of acting morally as acting in the way that we ought to act in all the circumstances (or acting in accordance with principles of overriding importance).

Conclusion

We can define "moral", "morality", and related words such as "ethical" and "ethically" and so on, however we choose - but choose we must! If we define these words in terms of how we ought to act in all the circumstances (or something similar), then, sure enough, the definition entails that we ought to act morally, but it cannot tell us what this amounts to in practical detail. The latter is still an open question.

Conversely, if we define the words in Singer's way, we know what is involved, but it becomes an open question whether we ought, all things considered, to act morally (rather than, say, egocentrically, or eroscentrically, or in accordance with some compromise approach).

Utilitarians can't have it both ways. If they define morality in terms of acting in the way that we ought to act in all the circumstances, then they still need to demonstrate that this involves acting like a utilitarian. They cannot succeed in convincing us of this if our most basic (or highest order) desires are to the contrary (e.g. if they contain egocentric or eroscentric elements).

Conversely, if they define acting morally in terms of acting like a utilitarian, then they still need to demonstrate that this is the way that we always ought to act in all the circumstances. Again, they cannot succeed in convincing us of this if our most basic (or highest order) desires are to the contrary (e.g if they contain egocentric or eroscentric elements).

Thus, even if we defined such words as "morality" or "ethics" in accordance with Singer's usage, this could not be relied upon to derive an acceptable system of action-guiding norms, as R.M. Hare arguably attempts to do in such works as Freedom and Reason. As Simon Blackburn has pointed out, if a word such as "ethically" refers to reasoning of this kind, "we may still prefer and campaign for other ways of reasoning." I.e., if we think of the word "ethically" in this way, we may quite rationally decide not to act ethically! We are not making a mistake if we so decide.

There is no prospect of defining words such as "moral" and "morality" in such a way as to compel us to act as a utilitarian would wish, on pain of making a mistake about the world or being irrational (at least in a sense of "irrational" that we need care about, since this word can also be defined in more than one way). As Singer himself ultimately concedes in Practical Ethics, it is not possible to compel someone to accept utilitarianism, or "the ethical point of view", by anything like a brute exercise in logic. His own eventual approach is to try to sell us the attractions (the sense of meaning it can give us, and so on) of living a "moral" life.

This entails that we do not necessarily have reasons to be moral. Morality can be objective if we define it in a way that refers to something naturalistic and does not include its power to give reasons (as with "what you ought to do in all the circumstances"). But it is then not necessarily mistaken to act immorally, or even to reject morality. You can't retain both of these aspects (the strict objectivity of morality and the rational requirement to act morally) at once.

A better approach to morality is to point out that almost all of us wish, all things being equal, that other lives go well and that suffering be ameliorated. Accordingly, from within our own value systems we (almost) all have reasons to act in ways that have these effects. At the same time, there is always the possibility of a clash with other values, such as our own survival and the happiness of loved ones. At least for beings like us, who are not omnipotent and cannot deal benevolently with all interests at once, morality is not about perfect altruism. It is about constraining ourselves and living within the constraints, particularly in such respects as accepting the strong prima facie requirement to act honestly and non-violently.

This is the kind of thing that actual moral systems tend to demand, and it is the kind of demand that others around us can reasonably expect us to accept. People who want us to support a particular system are stuck with appealing to the structures of desires that we actually have, though they can, of course, ask us to subject those desires to rational reflection (they can ask us to consider which of our desires are really most important to us). They cannot, however, compel us to accept and abide by a system of morality by the clever use of definitions.

In this field, definitions always have their price.