-The philosophy of law is like a galaxy of stars. There are many philosophers in the galaxy, but some are so massive and so full of hot gas that their gravitational pull influences all others. one of these supergiants is Ronald Dworkin. There’s a cool paradigm between how Ronald Dworkin says the law should be applied, like by courts and judges and so on, and how comic book writing and tabletop gaming work. A while ago, PBS Idea Channel did a video on how comic book writing and being the gamemaster in tabletop gaming are kind of similar — if you wanna see it, there’s a link to it in the doobly-doo — and Mike suggested that the two are linked because of their relationship with continuity. If someone is writing a comic book or GMing a tabletop game, then the next step in the story needs to be consistent with what has come before and appropriate right now. Like, if the X-Men have been fighting the Mutant Brotherhood for the last twelve issues, you can’t suddenly make a change and say “Oh, uh… Professor X and Magneto were actually the same person all along,” and if your party has been travelling through an ancient forest for twenty minutes, you can’t suddenly say “Oh, everybody was killed by Daleks,” or, rather, you could do that, but a lot of people would be pissed off and you wouldn’t be a very good comic book writer or GM, but, nevertheless, you could technically do it. Remember that, ’cause it’s gonna be important in a minute. And this is pretty much exactly what Ronald Dworkin says about the law. He said that sometimes judges need to make a decision about how to apply the law in a case, and when they do, their ruling needs to be consistent with the body of law that already exists, like the precedents and the previous cases, and it needs to be appropriate right now. It needs to be fair on its own and it needs to fit the particulars of the case and so on, just like comic books and tabletop GMs. Now, in case you think I’m stretching Dworkin here or misinterpreting what he’s saying, he literally makes almost this very analogy. He says that judges should think of themselves like an author that’s writing a chapter in a novel, where all the previous chapters have been written by different authors. They need to make sure not only that their chapter is good on its own, but also that it is a good addition to the story. I don’t know how he failed to realize that a comic book would make a much better analogy in that situation than a chain novel, but apparently he preferred yachting to comics, so that might explain it. The analogy doesn’t run all the way through, though. Remember earlier on I said that if you’re a comic book writer or a GM, you could technically make up loads of crazy ways to continue the story that don’t fit with the continuity? Well, Dworkin says that when a judge makes a decision, there are actual legal rules constraining what moves they can make. There’s more constraining their decision-making than just the potential disapproval of their audiences. Also, a comic book writer or a tabletop GM could come up with multiple ways of continuing the story, which would all be equally good, whereas Dworkin says that when judges make a decision about the law, there must be only one correct answer. He says that the correct ruling is whatever an ideal judge would deliver. He imagines a fictional judge with infinite time, patience, and access to all legal resources and says whatever that judge would say, that is the one correct answer, and he called his ideal judge “Hercules.” THALIA:
-Honey, you mean HUNKULES! OLLY:
-And the reason there can only be one correct answer is that if Hercules delivered two verdicts, both of which were equally good but incompatible, then the law couldn’t justly coerce anybody. It couldn’t make sense for the law to say “You must do this,” if, by its own admission, it would be perfectly fine if you did not do that. There’s one other point of disanalogy. When comic book writers or tabletop GMs continue the story, they are making something new. They’re being creative, whereas Dworkin says that when a judge applies the law, they are not creating new laws. That’s to do with various technical reasons about what he thinks law is exactly, which we won’t go into. But if you’re writing an essay on Dworkin or anything, just remember, according to him, judges do not make new laws. OK, so there’s this analogy between the way comic books and tabletop GMs work and how law should be applied in Dworkin’s eyes, and that’s cool, but why does Dworkin think that the law should be applied that way? Well, again, it’s to do with what exactly he thinks the law is, and here we need to be a little bit careful, because we’re starting to drift quite close to a supermassive black hole in our galaxy of legal philosophers around which almost all other discussion orbits, and we need to not get sucked into that, so everything I’m about to tell you, take it as controversial and much debated. Dworkin thinks that the law has a point. The concept of law has a purpose built into it, and we cannot use the concept without referencing that purpose, and the purpose of the law, he says, is to portray the law in the best possible light, as a coherent body that treats all citizens equally, speaking with one voice, in order to justifiably coerce them. That, he says, is the point of the law. It is what judges must aim at, and that’s why they need to do this thing that comic book writers and GMs do, focusing on the continuity and how they fit into it, and he called this “law as integrity.” What do you guys think? Is there a useful analogy between the way the law should be applied and the way comic book and tabletop GMs work? Next time, we could either do some ancient philosophy and talk about stoicism, or we could do scientific naturalism and God. So leave me a comment and let me know what you want the next one to be about, and for more philosophical videos every Friday, please subscribe. Yes, I am filming in a different location because I am staying with my girlfriend this week. This episode was sponsored by my top patrons this month, Intimidating Scones, D.J. MacIsaac, Rich Clarke, Emiliano Heyns, and Jeffrey Peckham, so thank you so much to all of you guys who support the show on Patreon. I really, really do appreciate that. Everyone else who donated, all your names are in the description. Last time we asked “What morally should be done if someone is pregnant and wants to keep it and the father doesn’t?,” so let’s see what you guys had to say. James Buchanan made the point that the two-parent family is very much a Western model and it doesn’t fit for all families in all cultures at all times, and, yeah, I think that is a very good point. Christine Overall, the philosopher we were discussing, does have that model as a background cultural assumption. That doesn’t necessarily mean that her arguments don’t work, but I think you have identified some important cultural background stuff there. It’s very fashionable at the moment in philosophy, and arguably very right as well, that philosophers do talk about how our culture implicitly influences the arguments we make, so, yeah, I don’t think she would have to change any of what she said, but that is a very good comment and kudos to you for recognising that. wolfman571, Fred Swann, and Samen pancak, and a whole bunch of other people said that if a gestator, somebody who is pregnant, decides to carry the pregnancy to term, then they are voluntarily assuming solo responsibility for any child that results, like, they could have gotten an abortion, they chose not to, so aren’t they assuming all of that responsibility on themselves? Why should we say that inseminators, the traditionally male parents, have a duty of care towards the offspring? Well, I think there are lots of reasons that someone might choose not to get an abortion. They might choose not to get one for religious reasons or reasons of bodily autonomy or just they might not be able to get one. A lot of people in the comments seem to think that getting an abortion is as easy and pleasant as just taking a stroll down the road, and, guys, it’s really, really not, so I don’t think that just because somebody stays pregnant means that they voluntarily assume all that responsibility solo, and it doesn’t mean that they aren’t either entitled to or potentially the beneficiary of aid from the inseminator. Zach Martinez and Dallas Wood said that if an inseminator is forced to be a parent, against their will, well, then surely that kind of resentful environment isn’t going to be a good one for the offspring to grow up in. Well, yeah, uh, Overall does actually anticipate that, and so did Max Schneider a little bit in the comments. She said that, yeah, OK, that might be true, so child support payments might be one way of getting around that, so inseminators don’t have to spend any time with their offspring if they really, really don’t want to, but, also, I think she could say that just because some inseminators do or would fail to fulfil their moral duties of care or fulfil them in a bad way doesn’t mean that all inseminators don’t still have those moral duties. A lot of people said that if it’s unfair for an inseminator to get a “financial abortion,” then it must be unfair for a gestator to get a regular abortion, because both “impact negatively the welfare of the child,” and the fact that so many people left this comment means that there was a problem with my script. I shouldn’t have pitched the script quite so high because I thought that the reply to that argument would be so obvious that it wasn’t worth actually putting it in the script, because obviously that was a mistake on my part. The reply to that is to say that a financial abortion does affect some person. It does affect the child, even though the decision is taken at a time when the child does not yet exist because it’s a fetus, its effects do affect the child when it does exist, whereas the decision to terminate the pregnancy does not affect any child because it actually prevents the child from existing. so, basically, a lot of people tried to take one of the arguments we discussed and turn it on the philosopher who made it, saying “No, you!,” and, actually, it really, really doesn’t work. Shangori said that a gestator can give up a child for adoption after it’s been born and we don’t morally condemn them for that, and therefore that blows Christine Overall’s argument out of the water. Well, no, I don’t actually think it does quite. What Overall could say is that we can say that some gestators have a moral duty not to give up their child for abortion [adoption], namely, they have that duty in those cases where the decision to do that would negatively and unfairly — the same points she makes about other children — impact the child’s welfare, so I think she could take those points on board fairly easily. Since you’ve watched this far into the video without clicking away, I only assume that you are a keen bean when it comes to philosophy, and therefore this might interest you. As well as all my patrons on Patreon, this episode was sponsored by Audible.com. If you go to audibletrial.com/philosophytube, you can get a free 30-day trial of their audiobook service and a free audiobook comes with it. This time I think I’m gonna recommend Bertrand Russell’s “History of Western Philosophy.” It’s a great primer for, well, lots of Western philosophy and a great introduction to a lot of what a lot of different people thought, so you can get that whole thing completely free, and you can cancel anytime.