A Tool for Assessing Globalisation Affinity Among Groups of Specific Cultural Backgrounds.

Philosophy

Journal of Globalization Studies, Vol. 9 No. 1, May 2018 38–47 DOI: 10.30884/jogs/2018.01.03 38 A TOOL FOR ASSESSING GLOBALISATION AFFINITY AMONG GROUPS OF SPECIFIC CULTURAL BACKGROUNDS  Arnold Groh To investigate cultural lifestyle preferences in different cultural contexts, a forced-choice questionnaire was constructed, based on Thurstone's Law of Comparative Judgement, an almost forgotten statistical method of 1927, which is a useful tool for assessing groups. This study's questionnaire items targeted job and living conditions in the spectrum from traditional to globalised lifestyles. Subjects were indigenous representatives at the UNO in Geneva, and students in Nigeria, Cameroon, South Africa and Germany. The preferences ascertained reflect attitudes on a scale ranging from very traditional to very globalised lifestyles. Although being an uncommon assessment tool, Thurstone's Comparative Judgement indicates to yield highly valid outcomes, as the results of the African university students, though from three different countries, resembled each other, but were complementary to the results of the indigenous representatives, which, in turn, mirrored the Berlin controls' profiles, according to expectations. Findings are discussed in light of the Symbolic Self-Completion Theory. Keywords: globalisation assessment, comparative judgement, symbolic selfcompletion, cross-cultural. Theoretical Background The Law of Comparative Judgement The basic idea of the Law of Comparative Judgement, as proposed by Thurstone (1927), is that repeated assessments of an object or of a stimulus are theoretically not identical, but normally distributed around a focal value. This is claimed to hold true for repeated assessments of an object or of a stimulus made by the same person, as well as for repeated assessments of the same object or stimulus made by several persons. If two comparable objects or stimuli are assessed, then the differences of these assessments are normally distributed too. When we expand this to more than two objects or stimuli, in order to compare their assessments, each of these objects or stimuli is tested against each other. This is done by way of a forced-choice questionnaire, in which a subject has to choose one out of two alternatives, which are offered as pairs each time. The first step yields a frequency distribution, showing each instance of each presented object or stimulus being presented with each alternative, and also showing how often in each of the instances the object or stimulus presented was favoured over the alternative presented. These preference frequencies are then, in the second step, transGroh • A Tool for Assessing Globalisation Affinity among Groups 39 formed into relative frequencies. In further steps, the z-values finally lead to scale values as measures of the preference of each object or stimulus in comparison to the other objects or stimuli. This procedure is known as the Thurstone method of paired comparisons. It has proven helpful for assessing culture-related differences (e.g., Allison et al. 1999). Here, it shall be shown that the method of paired-comparison scaling is a useful tool for measuring cultural lifestyle preferences of persons within the spectrum reaching from traditional culture to a globalised context. Motivational Factors of Globalisation Cultural changes are evident in the presently globalising world. These changes, as we see them in progressive modernization, are effects of human behaviour and interaction. Human behaviour, in turn, is determined by cognitive and motivational factors. Thus, cultural changes go along with changes in cognitive patterns, which are interlinked with, and influenced by, processes that take place in the external context. Emergence of Cultural Dominance Cultural changes are triggered by the overlap of hitherto separate cultural systems. Examples can easily be found in paradigms such as language (Cherubim 1975), architecture, music, or food (Mintz and Du Bois 2002). As long as a cultural group is not exposed to factors that bring about any need for change, it represents a stable system that perseveres in its current state. However, when members of such a cultural group are confronted with members of another cultural group, they perceive alternatives to their own cultural elements, which up to that point had been but singularly known to one cultural group. Through the encounter, the individuals of each cultural system become aware of the alternative behavioural patterns of the respective others (Groh 1993a, 1993b). These patterns, as well as any cultural element or artefact, correspond to cognitive elements. During the synthesis of the overlapping cultures, equivalent elements of either side are weighed against each other. Those that are considered effective are approved, whilst the equivalent others are dismissed. On the one hand, due to this mechanism a culture has a greater overall effectiveness if it results from many preceding syntheses, because with each synthesis selection processes take place with regard to the elements contributed by the respective cultures going into synthesis with each other. On the other hand, a culture without such a record of syntheses in its history has not accumulated a comparable store of effective cultural – and at the same time cognitive – elements with their respective behavioural patterns. When a culture of the first kind (many preceding syntheses, high overall effectiveness) comes into contact with a culture of the second kind (less preceding syntheses, less overall effectiveness), cultural dominance results as an effect of this contrast. On the individual level, a person exposed to that dominance strives for strategies to mitigate the feeling of inferiority (Groh 2005, 2018). Symbolic Self-Completion According to the Theory of Symbolic Self-Completion as proposed by Wicklund and Gollwitzer (1982), an individual tries to bridge the gap between the ideal self, defined by personal goals, and the actual self, as realistically perceived, with the help of symJournal of Globalization Studies 2018 • May 40 bols. These symbols are communicated, and they have the function of creating an impression in orientation towards the aspired, identity-relevant goals. If, for example, a person believes, for whatever reason, that tennis is an important thing in life, although he or she is not a top-ranking tennis player, then there is a dissonance in the sense of an incompleteness, which he or she will try to reduce with the help of symbols (hence the name of the theory) that he or she communicates to others. The communication of the symbols can be of verbal, visual, or various other natures. The person could invest time and money by taking tennis lessons; he or she could invest just money and buy tennis wear, targeted at creating the impression of being very much involved with tennis; or, when lacking financial resources, he or she could just invest time by speaking a lot about tennis, thus urging people as to the importance of tennis, thereby likewise attempting to create the impression of being a tennis expert. With all of these behaviour patterns, the person aims at being seen as closer to the identity goal. This serves as a compensation for a lack of capabilities as perceived with regard to those identity goals that are seen as relevant by that person (Braun 1990). The Theory of Symbolic Self-Completion is of great importance when it comes to explaining cultural change in a globalising world. This can easily be shown within the difference of the so-called North (social systems of European style) and South (indigenous, non-European social systems). Whereas the North picks up only very few cultural elements from the South, there are radical changes taking place in the South, where, at least in urban settings, a majority of its cultural elements are being replaced by those from the North. In the terminology of the Theory of Symbolic Self-Completion, Southern individuals feel inferior when confronted with Northern life style. However, within the constellation of cultural dominance, which the North exerts over the South, Northern cultural elements are widely regarded as attractive. Conceding attractiveness to a life-style, which is different from one's own, implies, in another terminology, cognitive dissonance (Festinger 1957), and a need for its reduction. Thus, the identity-goal for Southerners feeling inferior in that sense, would be to become like a Northerner (n.b. vice-versa, Northerners generally would not like to become like Southerners, since that would mean losing their dominant position). The lack, as perceived by a Southerner with regard to his or her self, is a lack of Northern characteristics, as manifest in cultural elements or behaviour patterns. Again, under the perspective of the Theory of Symbolic Self-Completion, what is important is the communication of symbols. Though the individual might strive to become like a Northerner, he or she would try to compensate for the supposed lack. Such a compensation often takes place through the acquisition of material symbols (Braun and Wicklund 1989). Attractiveness of the Globalised World? At first sight, it seems to be logical that people want to be on the side that is dominant, because otherwise, they would be in an inferior position, which to avoid can be seen as a natural reaction. However, cognition enables us to reflect the processes of cultural change critically and on meta levels. The state of a cultural system and its contextual relations are subject to interpretations. Inferiority is one of them, but in the indigenous discourse,1 a long-term perspective is often taken, questioning the sense of globalisation and pointing at globally destabilising effects arising from the dominance of the First Groh • A Tool for Assessing Globalisation Affinity among Groups 41 World, such as the destruction of nature and climate change. Since 2006, these positions are backed by the United Nations' Declaration on the Rights of Indigenous Peoples. Therefore, it can be expected that indigenous representatives at the UN will not unreflectingly take a position in favour of globalisation. Under the aspect of social-cognitive approaches it depends on his or her position within the social setting, whether or not an individual takes a critical position towards the problems of globalisation. Especially under the aspect of the Theory of Symbolic Self-Completion, the commitment the individual has taken is decisive for his or her further behaviour, be it the claiming of a traditional identity or in the direction of globalisation. Gollwitzer (1986) points out that striving for an identity, as is manifest in selfsymbolising, is a non-strategic behaviour pattern, which may not be confused with strategic self-presentation. Cultural Determinants Individuals internalise behaviour patterns and cognitive elements that are available within their context of socialisation. Cultures can be positioned within a theoretical spectrum, with indigenous cultures being at one end, and globalised social systems being at the other end. Accordingly, the position of an individual is affected by his or her cultural background, which can be located within that spectrum. The position of a culture within the spectrum, in turn, is a result of historical processes, which have led to resources of behaviour patterns within that specific culture, that account for its characteristics. We should bear in mind that culture is not an autonomous entity, but that it is composed of people. Their behaviour and cognitions are determined by their collective memory and communications that are specific to that social system they had been born into (Assmann 1992). If we try to reconstruct the emergence of globalised from formerly non-globalised culture, then we can find processes of accumulation (due to cultural syntheses) on the one hand, and loss of cultural information (due to selection processes) on the other (Groh 1993a, 1993b). The overall effectiveness of the dominant and presently globalising industrial culture only contains strategies that have been relevant in the previous course of its history; it does not contain strategies outside its scope. Indigenous cultures, in turn, have a very specific effectiveness within their context with regard to knowledge and strategies, which the industrial culture does not have, like how to manage habitats and complex ecological systems. It can be assumed that the extent to which an individual feels attracted to the globalising industrial culture depends on his or her specific cognitions. Yet, it is often taken as a premise that people prefer the dominant First World culture, without having an empirical foundation for such a proposition. This study presents a way of measuring the extent to which persons of specific backgrounds feel attracted to globalised culture, by means of a tool that is based on the method of paired comparisons, and a discussion of the outcome from the perspective of the Theory of Symbolic Self-Completion. Journal of Globalization Studies 2018 • May 42 Method Questionnaire Characterisations of cultural lifestyles, briefly describing job and living conditions, were rank scaled within a continuum reaching from very traditional to very globalised situations. The items were as follows: – 'Living on agriculture in a rural, non-industrial area' (a), – 'Small business in a minor 3rd World town' (s), – 'Middle-class job in a 3rd World city' (m), – 'High-class job in a major 3rd World City' (hc), – 'High-tech job in a 1st World city' (ht). In Cameroon and in Geneva, translations of the original English questionnaire were used parallel to the English version. These parallel versions, which had been provided by official translators at the United Nations in Geneva, were the French translation in Cameroon, and French and Spanish translations in Geneva. Minor adjustments had been made for Africa, reading 'African' instead of '3rd World', and for the University of Ibadan in item (m), 'Ibadan' instead of 'a 3rd World city'. The questionnaire is shown in the appendix (Fig. 2). Subjects and Procedure The questionnaires were administered to students at the Department of Psychology at the University of Ibadan, Nigeria (N = 63; mean age: 29.15, SD = 7.59; 55.9 per cent male, 44.1 per cent female), to indigenous representatives during a session of the Working Group on Indigenous Populations of the UNHCHR at the United Nations in Geneva (N = 35; mean age: 37.1, SD = 11.45; 71.4 per cent male, 28.6 per cent female), to students at the Universities of Yaoundé and Buea, Cameroon (N = 128, 108 students at Université Yaoundé I and 20 students at the University of Buea; mean age: 22.31, SD = 3.06; 62.7 per cent male, 37.3 per cent female), to students at the University of Limpopo, South Africa (N = 53; mean age: 20.15, SD = 2.14; 51.0 per cent male, 49.0 per cent female) and to students in Berlin, Germany (N = 81, 77 students at the Technical University and 4 students at Humboldt University; mean age: 22.62, SD = 3.18; 65.8 per cent male, 34.2 per cent female). From the collected data, preferences were calculated according to the Law of Comparative Judgement (Bortz and Döring 2003). For details of the procedure, see above (section on The Law of Comparative Judgement). Results The data gathered from the African students show very similar patterns, with the fourth item on the scale, (hc), being on rank 1 of the preferences, and the first item, (a), being on the lowest rank. This holds true for the data gathered in Nigeria, Cameroon, and South Africa. Both the data of the indigenous representatives at the UN and the data of the TU Berlin students show very different patterns: In the UN data, the fifth item, (ht), is on the lowest, and the first item, (a), is on top rank. Thus, the results of the indigenous representatives show a nearly inverted distribution in comparison to those of the students in Africa. In the Berlin data, the fifth item, (ht), is on rank 1 of the preferences, and the Groh • A Tool for Assessing Globalisation Affinity among Groups 43 second item, (s), is on bottom position, so that this distribution, in turn, is also almost laterally inverted when compared to the UN data (Fig. 1). Fig. 1 (a). Lifestyle preferences found in Nigeria Fig. 1 (b). Lifestyle preferences found among indigenous representatives at the UN Journal of Globalization Studies 2018 • May 44 Fig. 1 (c). Lifestyle preferences found in Cameroon Fig. 1 (d). Lifestyle preferences found in South Africa Groh • A Tool for Assessing Globalisation Affinity among Groups 45 Fig. 1 (e). Lifestyle preferences found in Germany Figure 1 (a-e): Scale values Conclusions The validity of the results obtained with the tool presented is underlined by several aspects. First, the data of the African students yielded nearly equal profiles with regard to the three different countries. Second, the indigenous representatives' data, in sharp contrast to the former ones, reflect positions explicitly claimed by that group. And third, the data of the Berlin students strongly reflect their positions, which they implicitly claim by studying in a capital of the industrialised world. Whereas for the other groups, the life roles and goals are rather blended, the roles and goals of the Berlin students, who can be seen as a control group, are quite clear; by definition, they strive for a 'High-tech job in a 1st World city', especially as most of the students of that sample study at the Technical University (see above, Subjects and Procedure). Consequently, the preference of the Berlin students for a 'High-tech job in a 1st World city' accounts for the validity of the instrument. Also, their data is well compatible with the Theory of Symbolic Self-Completion, since they reflect the claim for a 'high-tech' identity. Likewise, Braun and Wicklund (1988) had shown that among students, the striving for a professional identity is reflected in respective claims, which serve as symbols to complete the yet incomplete identity. On the other hand, the item, 'Living on agriculture in a rural, non-industrial area', in third place, can be interpreted as the effect of the counterbalancing idea of a very different lifestyle, contrasting to the industrialised world. Similarly, the same item ('Living on agriculture in a rural, non-industrial area') being in the top position in the UN data reflects the claim of the indigenous representatives; anything else would be contradictory to their role, since they have been sent by their communities to demand recognition and respect for their indigenous cultures. The indigenous representatives' claim is completely reflected in the ranks of their preferences. Journal of Globalization Studies 2018 • May 46 Strikingly, the data of the African students, who actually are indigenous as well, are exactly contrary to the data of those, who represent indigenous peoples within a globalised context. The attractiveness of the First World is evident in the African students' data, and is only slightly counterbalanced by the maintenance of an African identity, as which the fact can be interpreted that not (ht), but just (hc) is in their top ranking position. Attention should be paid to the fact that African students are by no means representatives of their cultures of origin. Rather, they belong to a very small upper class that contrasts very much with the large majority of the population. Due to colonial history, European life style is usually regarded by the Third World's upper class as a standard to strive for. This means that people from this segment generally aspire to abandon traditions in contrast to the subjects surveyed at the UN. This study, therefore, cast severe doubt on all cross-cultural surveys that rely on data collected from Third World university student samples, since these subjects are a minority within their societies, following very different values, as pointed out by our results. The method of paired comparisons has proved to be a useful tool for the assessment of culture-related preferences. This application of the Law of Comparative Judgement also clarifies that preferences of specific job and living conditions result from various internal and external factors. Therefore, any interpretation of such data should always consider that the results are determined by the specific individual-context constellation, in which goal-related, compensatory and other cognitive factors take effect. NOTE * Research in Africa was supported by the Alexander von Humboldt Foundation (Nigeria), DAAD (Cameroon) and the University of Limpopo (South Africa). 1 At UN level, cf. relevant communications e.g., at URL http://ohchr.org/EN/Issues/IPeoples/ Pages/IndigenousPeoplesIndex.aspx. REFERENCES Allison, P., Locker, D., Jokovic, A., and Slade, G. 1999. A Cross-Cultural Study of Oral Health Values. Journal of Dental Research 78: 643–649. URL: https://doi.org/10.1177/ 00220345990780020301. Assmann, J. 1992. Das kulturelle Gedächtnis. Schrift, Erinnerung und politische Identität in frühen Hochkulturen. Munich: C. H. Beck. Bortz, J., and Döring, N. 2003. Forschungsmethoden und Evaluation. Reprint of 3rd ed. Berlin, Heidelberg: Springer. Braun, O. L. 1990. Selbsteinschätzung der Fähigkeit: Realistisch oder kompensatorisch? Zeitschrift für experimentelle und angewandte Psychologie 37 (2): 208–217. Braun, O. L., and Wicklund, R. A. 1988. The Identity-Effort Connection. Journal of Experimental Social Psychology 24: 37–65. Braun, O. L. and Wicklund, R. A. 1989. Psychological Antecedents of Conspicuous Consumption. Journal of Economical Psychology 10: 161–187. Cherubim, D. (ed.) 1975. Sprachwandel. Reader zur diachronischen Sprachwissenschaft. Berlin: de Gruyter. Festinger, L. 1957. A Theory of Cognitive Dissonance. Stanford: University Press. Groh • A Tool for Assessing Globalisation Affinity among Groups 47 Gollwitzer, P. M. 1986. Striving for Specific Identities: The Social Reality of SelfSymbolizing. In Baumeister, R. F. (ed.), The Private and the Public Self (pp. 143–159). New York: Springer. Groh, A. 1993a. Ein Ansatz zur mathematischen Modellierung kulturellen Transfers. Grundlagenstudien aus Kybernetik und Geisteswissenschaft / Humankybernetik 34 (3): 110–118. Groh, A. 1993b. Formal-informationswissenschaftliche Überlegungen zu den Effekten kultureller Dominanz auf die Stabilität von Symbolsystemen. Grundlagenstudien aus Kybernetik und Geisteswissenschaft / Humankybernetik 34 (4): 172–182. Groh, A. 2005. Globalisation and Indigenous Identity. Psychopathologie Africaine 33 (1): 33–47. Groh, A. 2018. Research Methods in Indigenous Contexts. New York: Springer. URL: https://doi.org/10.1007/978-3-319-72776-9. Mintz, S. W., and Du Bois, Ch. M. 2002. The Anthropology of Food and Eating. Annual Review of Anthropology 31: 99–119. URL: https://doi.org/10.1146/annurev.anthro.32. 032 702.131011. Thurstone, L. L. 1927. A Law of Comparative Judgment. Psychology Review 34: 273–286. Wicklund, R. A. and Gollwitzer, P. M. 1982. Symbolic Self-Completion. Hillsdale, N. J.: Erlbaum. Appendix Fig. 1. The forced-choice questionnaire


Child rape, moral outrage, and the death penalty

Philosophy

Electronic copy available at: http://ssrn.com/abstract=1210862 Copyright 2008 by Northwestern University School of Law Vol. 103 Northwestern University Law Review Colloquy 17 CHILD RAPE, MORAL OUTRAGE, AND THE DEATH PENALTY Susan A. Bandes* Is raping a child as heinous an act as taking a life? How should the comparative moral depravity of child rapists and murderers be measured? By what metric can the irrevocable harm murder inflicts on its victims be weighed against the long-term anguish inflicted on child rape victims? What is the judicial role in gauging the societal outrage and revulsion elicited by these two crimes, and in determining whether the death penalty is an appropriate response to those emotions? In Kennedy v. Louisiana1 the Supreme Court struggled with this daunting set of issues, which called for judgments that are inescapably moral and emotional. The Court also faced contentious questions about the nature and longevity of the psychological injuries to child rape victims and to their families,2 about whether a capital prosecution would ameliorate or exacerbate those harms,3 and about whether the strong emotions jurors feel in child rape cases are likely to overwhelm their capacity to decide fairly.4 The Kennedy decision is a vivid illustration of the central point Douglas Berman and Stephanos Bibas make in Engaging Capital Emotions: that it is impossible to evaluate the legal issues raised by capital punishment without addressing the role of emotion.5 I've argued that once we acknowledge "the emotional wellsprings of the retributive calculus" we can have "a more clear-eyed debate about retribution's proper role in our capital punishment system."6 Berman and Bibas begin this debate.7 They argue that child rape should be a capital crime, * Distinguished Research Professor, DePaul University College of Law. 1 No. 07-343 (U.S. June 25, 2008) (link). 2 See id., slip op. at 24 (majority opinion); see also id., slip op. at 21–23 (Alito, J., dissenting). 3 See id., slip op. at 32 (majority opinion); see also id., slip op. at 16 (Alito, J., dissenting). 4 See id., slip op. at 29 (majority opinion); see also id., slip op. at 18–19 (Alito, J., dissenting). 5 Douglas A. Berman & Stephanos Bibas, Engaging Capital Emotions, 102 NW. U. L. REV. COLLOQUY 355 (2008) (link). 6 Susan A. Bandes, The Heart Has Its Reasons: Examining the Strange Persistence of the American Death Penalty, 42 STUD. IN L., POL. & SOC'Y 28 (2008) [hereinafter Bandes, The Heart Has Its Reasons]. 7 Robert Blecker has also prominently argued in favor of the death penalty based on what he calls "emotive retributivism." See, e.g., Robert Blecker, But Did They Listen? The New Jersey Death Penalty Commission's Exercise in Abolitionism: A Reply (July 24, 2007) (unpublished manuscript), available at http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=robertblecker (link). Electronic copy available at: http://ssrn.com/abstract=1210862 NORTHWESTERN UNIVERSITY LAW REVIEW COLLOQUY http://www.law.northwestern.edu/lawreview/colloquy/2008/27/ 18 drawing support from the widely shared moral outrage the crime evokes, and from the crime's emotional toll on child rape victims and their families. Although I reach the opposite conclusion on the merits, their essay models precisely the sort of conversation we ought to be having. Part I of this Reply considers the role of emotion in capital jurisprudence. Section A discusses the importance of confronting emotion's role in capital punishment. Section B explores the difficulties with using moral outrage as a metric. Section C argues that the penal system should not merely reflect moral outrage, but channel and educate it. Part II focuses on the role of emotion in deciding whether child rape should be a capital crime. Section A considers the relevance of victim harm to the question facing the Kennedy court. Section B argues that there are three particular problems with allowing juries to sentence child rapists to death: the deleterious impact of anger and empathy, the problem of generic prejudice, and the issue of race. I. EMOTION AND CAPITAL PUNISHMENT A. Why Emotion Must be Part of the Conversation As Berman and Bibas argue, it is important to bring emotion into the legal conversation for several reasons. First, emotions help explain why people hold the views they do about the death penalty.8 When we engage in formulaic, affectless doctrinal discussions of deterrence, retribution, and incapacitation,9 we talk past each other and grow increasingly polarized. These doctrinal categories have little to do with why people in fact support or oppose the death penalty.10 The more we understand about why people take the positions they do, and why they adhere to them so vehemently, the more likely we are to persuade one another and move toward consensus. Second, the capital system-like any legal institution-is premised on assumptions about human behavior. For example, it is built around assumptions about what motivates or deters criminal acts, about how judges and jurors decide, and about what victims need. As I mentioned above, the Kennedy opinions are rife with assumptions about human behavior, sometimes backed by empirical evidence, and sometimes not. When courts premise decisions on assumptions about human behavior, they ought to determine whether the available evidence supports those assumptions. The third reason is the most challenging. Once we acknowledge that, as a descriptive matter, emotion pervades the law, we can proceed to the necessary normative discussion about which emotions should play roles in various legal contexts. There are many ways to approach this question. For example, there are philosophical debates about whether certain emotions are 8 Bandes, The Heart Has Its Reasons, supra note 6, at 22–23. 9 Id. 10 Id. 103:17 (2008) Child Rape, Moral Outrage, and the Death Penalty http://www.law.northwestern.edu/lawreview/colloquy/2008/27/ 19 normatively desirable, such as the debate between Martha Nussbaum and Dan Kahan about the role of disgust in criminal law.11 There are psychological, sociological, and neuroscientific arguments that certain emotions contribute to better decisionmaking.12 But it is often difficult to navigate around what the philosopher Hilary Kornbluth called "the very hazy borderline between epistemology and empirical psychology."13 That is, what relevance does the way we do reason have for the question of how we ought to reason? Does the fact that we feel certain emotions itself demonstrate that they deserve respect?14 Philosopher Anthony Appiah aptly describes the tension underlying many moral intuition analyses, observing that although we are right to "complain of normative systems that seem impossibly unmoored from human judgment," we ought not to perpetuate objectionable or outmoded intuitive assumptions on the theory that "whatever is, is right."15 Retributive theory tends to straddle this hazy borderline. Retributive arguments often draw support from the fact of the outrage engendered by crime, and the fact of the desire to act upon that outrage. When Berman and Bibas refer to retributive anger's "deep roots in the law,"16 they are in part arguing that this retributive emotion deserves respect because it is such a basic and longstanding part of any punishment regime. Their argument is also, in part, empirical and pragmatic-an assertion that because the emotion is so entrenched, efforts to squelch it will fail, resulting in distortion, a loss of respect for the system, and even vigilante justice. And finally, their argument is explicitly normative. It is a contention that the legal system ought to reflect righteous anger and outrage, as a way of holding a moral agent accountable for his crime, expressing the community's condemnation, and vindicating the victim. The relevant question for the legal system is what government actions should follow from the fact that certain crimes evoke widespread and intense moral outrage. Is the depth of the moral outrage a normative argument for a certain degree of punishment or a certain type of punishment? My response, in brief, is that emotions, and the actions that follow from 11 See Martha C. Nussbaum, "Secret Sewers of Vice": Disgust, Bodies and the Law, in THE PASSIONS OF LAW 19–62 (Susan Bandes ed., NYU Press 2000); Dan M. Kahan, The Progressive Appropriation of Disgust, in THE PASSIONS OF LAW 63–79 (Susan A. Bandes ed., NYU Press 2000). 12 See generally ANTONIO R. DAMASIO, DESCARTES' ERROR: EMOTION, REASON, AND THE HUMAN BRAIN (QUILL/ HARPER/COLLINS 1994). 13 Hilary Kornblith, The Laws of Thought, 52 PHIL. & PHENOMENOLOGICAL RES. 895, 896 (1992). 14 For a discussion of the relevance of emotion in decisionmaking processes, see Susan A. Bandes, Emotions, Values and the Construction of Risk, 156 U. PA. L. REV. PENNUMBRA 421 (2008), http://www.pennumbra.com/responses/03-2008/Bandes.pdf [hereinafter Bandes, Emotions, Values, and the Construction of Risk] (commenting on Dan M. Kahan, Two Conceptions of Emotion in Risk Regulation, 156 U. PA. L. REV. 741 (2008)) (link). 15 KWAME ANTHONY APPIAH, EXPERIMENTS IN ETHICS 76–77 (Harv. Univ. Press 2008). 16 Berman & Bibas, supra note 5, at 360. NORTHWESTERN UNIVERSITY LAW REVIEW COLLOQUY http://www.law.northwestern.edu/lawreview/colloquy/2008/27/ 20 them, must be evaluated in light of constitutional objectives. Moreover, as I will discuss below, the legal system should not simply reflect or evaluate emotional commitments. It must also channel, shape, and educate them. Emotions are not inherently normative.17 Whether they are desirable depends on what function they are meant to serve and what goals they are meant to attain. The question is not whether retribution ought to be encouraged, or victims ought to be helped to heal, as an abstract matter, but what role retribution or healing ought to play in the American system of capital punishment. Under current Eighth Amendment law, capital punishment is permitted to the extent it comports with "the evolving standards of decency that mark the progress of a maturing society,"18 avoids wanton and unnecessary infliction of pain, is proportionate to the severity of the crime, and minimizes the risk of arbitrary and capricious action.19 Of course, there is deep disagreement about the meaning and interpretation of the Eighth Amendment generally, and about the proper scope and application of these constitutional standards.20 Nevertheless, these standards provide the framework within which interpretation must take place. B. Taking the Measure of Moral Outrage Does our understanding of the deep roots of the retributive emotions shed light on the questions of proportionality and evolving standards of decency the Court faced in Kennedy? Do the retributive emotions help us find a metric for determining what sorts of crimes, or what sorts of offenders, deserve the death penalty? Retributivists "seek[] to punish an offender because she deserves to be punished in a manner commensurate with her legal wrongdoing and responsibility . . . . Not more, not less."21 Although this principle has strong intuitive appeal,22 it is in danger of being circular and indeterminate-an assertion that "we punish because it is the right thing to do, and we mete out the punishment that is right."23 Paul Robinson and his coauthors have explored the notion of "empirical desert," arguing that people share robust in- 17 See Susan A. Bandes, Empathy, Narrative and Victim Impact Statements, 63 U CHI. L. REV. 361, 405 (1996). 18 Kennedy v. Louisiana, No. 07-343, slip op. at 8 (U.S. June 25, 2008) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)) (link). 19 See generally Gregg v. Georgia, 428 U.S. 153 (1976) (link). 20 Compare Justice Stevens's concurrence in Baze v. Rees, 128 S. Ct. 1520, 1551–52 (2008) (Stevens, J., concurring in the judgment) (link), which draws on his own experience implementing the death penalty to buttress his conclusion that capital punishment is unconstitutional, to Justice Scalia's concurrence, 128 S. Ct. at 1552–53 (Scalia, J., concurring in the judgment), in which he argues that Justice Stevens's conclusion is insupportable as a matter of constitutional interpretation and that the legitimacy of capital punishment is a legislative question. 21 Dan Markel, Against Mercy, 88 MINN. L. REV. 1421, 1441 (2004). 22 See Mary Sigler, Mercy, Clemency, and the Case of Karla Faye Tucker, 4 OHIO ST. J. CRIM. L. 455, 464 (2007) (link). 23 Bandes, The Heart Has Its Reasons, supra note 6, at 27. 103:17 (2008) Child Rape, Moral Outrage, and the Death Penalty http://www.law.northwestern.edu/lawreview/colloquy/2008/27/ 21 tuitions about how serious punishment ought to be for a range of crimes. But Robinson notes that "modern notions of desert are ordinal rather than cardinal."24 They tell us where on the continuum punishments should fall, but not what types of punishment should bracket the continuum. In short, people share strong intuitions about which crimes deserve the most serious punishments, but, at least thus far, the research has no implications for the question of what the most serious punishments ought to be.25 As I will suggest shortly, it is plausible that the available punishments frame attitudes about appropriate punishment. Another difficulty with gauging moral outrage as a measure of proper punishment is that people rarely feel one emotion in isolation. To get at the issue of what people want from punishment, it is necessary to examine a complex set of emotions. For example, it is important to disentangle moral outrage from fear. Studies show that when fear of returning the defendant to the community is taken out of the equation, and life without parole is offered as an option, support for the death penalty falls significantly.26 One final difficulty with measuring the retributive urge is that it is not static and does not always arise from the bottom up. The public's moral outrage not only influences penal policy, but is influenced by it, as I will discuss in the next section. The public's level of outrage is also influenced by media, political discourse, and all the other factors that routinely inform (or misinform) public opinion. C. Channeling and Educating Moral Outrage Berman and Bibas argue that "[g]rave moral wrongs demand righteous indignation and action," and that the death penalty is a way of "[d]enouncing and punishing [child rape] in the strongest possible terms."27 They suggest that since child rape is as terrible a crime as capital murder, we ought to express our condemnation by punishing it the same way. This argument assumes that capital punishment is the proper expression of the strongest moral outrage. My difficulty is with the authors' claim that the emotion of moral outrage provides support for the death penalty. It is one thing to say that the emotion deserves respect; it is quite another to say that the particular punishment does. I will first consider whether an understanding of the retributive emotions leads to a normative argument for capital punishment. In the next section, I will consider what guidance these emotions offer for the question of whether some child rapists should be executed. 24 Paul Robinson & Robert Kurzban, Concordance and Conflict in Intuitions of Justice, 91 MINN. L. REV. 1829, 1835 (2007), available at http://local.law.umn.edu/uploads/images/6298/Robinson_Kurzban_Final.pdf (link). 25 See id. 26 See Baze v. Rees, 128 S.Ct. 1520, 1546 (2008) (Stevens, J., concurring in the judgment) (link). 27 Berman & Bibas, supra note 5, at 360, 362. NORTHWESTERN UNIVERSITY LAW REVIEW COLLOQUY http://www.law.northwestern.edu/lawreview/colloquy/2008/27/ 22 Courts and other legal institutions play a role in guiding public reactions to crime and public expectations about punishment. The legal system is not a mere conduit for outrage. Rather, it channels outrage, ensuring that punishment is proportional and the product of deliberation. It separates the vengeful impulse from the legitimate retributive urge. Ideally, it ensures that serious decisions are not made in the initial stages of grief and fury that follow a heinous, high profile crime28 and that all relevant voices are heard-even those in danger of being overwhelmed by public outrage. Moral outrage does not merely well up from the populace; it takes shape in a political and social context. When respected institutions send the insistent message that only the death penalty can truly express appropriate condemnation for the most heinous crimes, and that only the death penalty can honor the worth of the victims of these crimes, that message has consequences. It guides the public to feel moral outrage when it is deprived of the death penalty. It creates a set of emotional expectations. Once the death penalty is advertised as a sign of the highest respect for the victim, a prosecutor's failure to bring capital charges, a jury's failure to sentence the defendant to death, or the system's failure to execute the defendant are branded as signs of disrespect for the victim and inadequate moral condemnation.29 If child rape is declared a capital crime because of the emotional devastation it causes, victims of other serious crimes might reasonably experience the decision as denigrating the nature and intensity of their suffering. They might come to feel that only a capital sentence can properly express society's condemnation. There may be widely shared intuitions about which crimes are the most heinous, but the Court and other institutions play an important role in the debate about what punishments those heinous crimes deserve. Studies of "anchoring effects" suggest that those who define the initial outer boundaries for decisionmaking exert significant influence.30 If life without parole were the ultimate punishment, it might be viewed as an appropriate reflection of moral outrage at the crime and respect for the victim. The expressive function may be served by imposition of the most serious punishment 28 See Susan A. Bandes, The Lessons of Capturing the Friedmans: Moral Panic, Institutional Denial, and Due Process, 3 LAW CULTURE & HUMAN. 293 (2007) [hereinafter Bandes, The Lessons of Capturing the Friedmans] (discussing high profile child sexual abuse prosecutions in which legal institutions exacerbate rather than channel public outrage). 29 See Susan A. Bandes, Victims, "Closure," and the Sociology of Emotion, LAW & CONTEMP. PROBS. (forthcoming 2009) [hereinafter Bandes, The Sociology of Emotion], available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1112140 (discussing the deleterious consequences of this message) (link). 30 See J.J. Prescott and Sonja Starr, Improving Criminal Jury Decision Making After the Blakely Revolution, 2006 U. ILL. L. REV. 301, 325–26 (discussing the importance of providing the jury with a well-chosen "base anchor" to guide sentencing discretion, given the strong influence that the anchor will exert on deliberation) (link); see also Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463, 2516–18 (2004) (discussing the strong "anchoring" influence of a prosecutor's initial charge on subsequent plea negotiations). 103:17 (2008) Child Rape, Moral Outrage, and the Death Penalty http://www.law.northwestern.edu/lawreview/colloquy/2008/27/ 23 available, rather than by imposition of the death penalty per se. This question deserves further study. II. EMOTION, CHILD RAPE, AND THE DEATH PENALTY In the next two sections, I will address the role of emotion in determining whether child rape should be a capital crime. This short Reply is meant primarily to address the Berman and Bibas essay, which was written prior to the Supreme Court's Kennedy decision. Therefore, I will address the authors' arguments in favor of making child rape a capital crime, with reference to the Kennedy opinion where relevant. A. The Relevance of Harm to Victims In the Kennedy case, Justice Kennedy acknowledges the anguish child rape victims suffer,31 but despairs of "quantifying" this harm in the way one can "quantify" the harm caused by murder.32 He rests his distinction between murder and child rape on the fact that only the former is irrevocable.33 Justice Alito's dissent cites empirical evidence of the grievous and often long-term harm caused by child rape in support of his argument that Louisiana's legislative judgment was not unreasonable.34 Berman and Bibas, too, cite the emotional devastation suffered by victims and their families as a compelling reason to treat the most heinous child rapes capitally. The focus on harm to victims poses some difficult issues for the criminal justice system. Most centrally, there is profound uncertainty about what role the emotional needs of victims ought to play in Eighth Amendment jurisprudence. Berman and Bibas argue that the grievous harm suffered by child rape victims and their families makes child rape a crime worthy of capital punishment. In large part their argument is premised on the need for fitting retribution for this horrific crime. In taking the measure of a crime's heinousness and a criminal's depraved heart, it seems reasonable to ask whether it is the sort of crime that is likely to cause long-term harm. Nevertheless, the reliance on predictions of future harm poses some problems for the retributivist rationale. Retributive rationales for punishment are generally backward-looking. They focus on the crime, or perhaps on the character of the defendant as inferred from the crime. As Mary Sigler said in explaining why "pickaxe murderer" Karla Faye Tucker did not deserve clemency despite her exemplary and remorseful conduct during her years on death row: "[from] the retributive perspective that provides the primary rationale for the death 31 See Kennedy v. Louisiana, No. 07-343, slip op. at 24 (U.S. June 25, 2008) (link). 32 See id., slip op. at 29. 33 See id., slip op. at 27. 34 See id., slip op. at 22 (Alito, J., dissenting). NORTHWESTERN UNIVERSITY LAW REVIEW COLLOQUY http://www.law.northwestern.edu/lawreview/colloquy/2008/27/ 24 penalty,35 . . . predictions about an offender's future conduct are irrelevant to determinations of desert."36 Berman and Bibas defend retributive punishments for child rapists because of what the future might hold-for both defendants and victims. They refer to the possibility of additional abusive acts by the defendant against the victim.37 But an argument for capital punishment that relies on the future behavior of the defendant for support needs to encompass the possibility that the defendant's behavior will change in ways that could be helpful rather than harmful to the victim and her family. For example, as Justice Kennedy observed, the defendant might come to accept responsibility and express remorse for the harm he has caused.38 Moreover, their prediction of future harm to victims requires speculation on what victims and their families will come to feel with the passage of time. It is difficult and dangerous enough to generalize about what victims need in the present.39 Predicting how they will feel in the future is an even riskier endeavor.40 The discussion of victim harm contains some troubling ambiguities for the question facing the Kennedy court. Evidence of future harm might be offered as a general measure of the heinousness of child rape-an argument that this type of crime is worthy of the harshest form of retribution. But that argument flows almost imperceptibly into another: that the death penalty is needed to help individual victims heal. For example, Berman and Bibas argue that "[t]he death penalty unequivocally proclaims society's empathy and outrage, that these victims bear no blame and need never fear that their abusers will repeat or keep exploiting their trauma."41 The question of whether society has a right to express its moral outrage by executing child rapists, however, is not the same as the question of what will help victims heal. Justice Kennedy recognizes this distinction between the needs of society and the needs of the victim, suggesting that "[s]ociety's desire to inflict the death penalty for child rape by enlisting the child victim" in a lengthy 35 Sigler, supra note 22, at 477. 36 Id. at 473. 37 The authors raise the possibility that the victims "may have their horrifying treatment captured on film and then peddled around the world" and will "spend their lives not only grappling with the anguish of rape, but fearing that any computer could replay their childhood horror." This scenario seems to encompass additional abuse by both the defendant and unknown third parties. Berman & Bibas, supra note 5, at 362. 38 See Kennedy, No. 07-343, slip op. at 36 (majority opinion) ("In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.");; see also Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 YALE L.J. 85 (2004) (arguing for the importance of remorse in the criminal justice system). 39 Bandes Empathy, Narrative and Victim Impact Statements, supra note 17, at 405. 40 Lynne Henderson, The Wrongs of Victims' Rights, 37 STAN. L. REV. 937, 964 (1985). 41 Berman & Bibas, supra note 5, at 362. 103:17 (2008) Child Rape, Moral Outrage, and the Death Penalty http://www.law.northwestern.edu/lawreview/colloquy/2008/27/ 25 and wrenching capital case might have the effect of inflicting additional harm on the child victim.42 Justice Alito dismisses this argument as a policy concern irrelevant to the constitutional calculus, asserting that "the Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down . . . laws on the ground that they are not in the best interests of crime victims or the broader society."43 Yet if the future wellbeing of victims is at issue,44 surely it is reasonable to seek evidence about whether the death penalty will contribute to that wellbeing or detract from it. The move toward justifying capital punishment based on the emotional harm to individual victims creates an additional problem. It puts courts and juries in the position of passing judgment on that harm. Despite the Supreme Court's overconfident prediction to the contrary,45 courts have consistently shown themselves unwilling and ill-equipped to regulate the admission of victim impact testimony by murder survivors in capital cases.46 It is likely that courts would find evaluating child rape victims' testimony about emotional harm at least as unpalatable. But if capital charges and capital sentences are to be determined, in part, by the level of emotional devastation to victims, then prosecutors, judges, and juries will indeed need to evaluate claims of emotional harm, and defense attorneys will need to refute them.47 This is a prospect that ought to give us pause.48 B. Juror Emotion and Child Rape Thus far I have addressed the argument that moral outrage and other emotions lend support to making child rape a capital crime. I now turn my attention to the effect of these emotions on the trial process itself. Accusa- 42 Kennedy, No. 07-343, slip op. at 32. 43 Id., slip op. at 16 (Alito, J., dissenting). 44 Later in his dissent, Justice Alito argues at length that the harm to child rape victims is severe and long-lasting, and that the "problems that afflict child-rape victims often become society's problems as well." Id., slip op. at 20–23. 45 See Payne v. Tennessee, 501 U.S. 808, 836 (1991) (Souter, J., concurring) (expressing confidence in the "traditional guard against the inflammatory risk, in the trial judge's authority and responsibility to control the proceedings consistently with due process, on which ground defendants may object and, if necessary, appeal") (link). 46 See John H. Blume, Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88 CORNELL L. REV. 257, 270–73 (2003) (link); Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 ARIZ. L. REV. 143, 145 (1999). 47 See Bandes, Empathy, Narrative and Victim Impact Statements, supra note 17, at 407 & n.235; Vivian Berger, Payne and Suffering-A Personal Reflection and a Victim-Centered Critique, 20 FLA. ST. U. L. REV. 21, 50–51 (1992) (discussing the specter of "mini-trials" on the victim's character). 48 One dramatic example of this dynamic came in the oral argument in the Kennedy case, in which counsel for the State began her oral argument with an agonizing description of the injuries to the victim, and Justice Stevens inquired whether the injuries were permanent. Counsel responded that, after surgery, the physical injuries had healed. Transcript of Oral argument at 28–29, Kennedy, No. 07-343. NORTHWESTERN UNIVERSITY LAW REVIEW COLLOQUY http://www.law.northwestern.edu/lawreview/colloquy/2008/27/ 26 tions of child rape evoke emotions in jurors, prosecutors, judges, and the public at large that may interfere with the ability to implement the death penalty in a constitutionally acceptable manner. There are three overlapping concerns: the problematic role of anger and empathy in this context; the problem of generic prejudice; and the issue of race. The authors assert that "legislators, prosecutors, and juries are well equipped to decide which child rapes are so heinous as to call for the ultimate punishment."49 There is substantial evidence casting doubt on this claim. As Berman and Bibas observe, accusations of child rape evoke understandable empathy for the victim and rage against the perpetrator. The law needs to make a difficult distinction between taking account of what people understandably feel and taking steps to ensure that those feelings don't adversely affect the fairness of the legal process. Empathy and anger are both emotions that can have deleterious effects on the operation of the criminal justice system when not properly channeled. Both of these strong emotions evoke the desire to act. There is evidence that anger interferes with sound judgment by causing misattributions of blame,50 and some evidence that it translates into harsher sentences.51 In child sexual abuse prosecutions, this anger is coupled with intense empathy for the victim, and this empathy may drive jurors to want to alleviate the victim's suffering.52 This combination of emotions renders child sexual abuse prosecutions particularly vulnerable to distortion and miscarriages of justice. The concept of "generic prejudice" is useful in understanding one source of the concern. As Neil Vidmar explains, although any case may trigger prejudices that interfere with fairness, in some types of cases, the nature of the crime charged evokes prejudice against any person accused of committing that crime.53 Generic prejudice implicates the jury's ability to decide whether a crime occurred or, if it occurred, whether the defendant was the perpetrator. As Vidmar found, generic prejudice is a significant problem in child sexual assault cases.54 The issue was not mere disapprobation or abhorrence of sex abuse but rather attitudes and beliefs that bear on the presumption of innocence when a defendant is accused of sexual abuse. Simply upon hearing the nature of the charges 49 Berman & Bibas, supra note 5, at 362. 50 Bandes, The Sociology of Emotion, supra note 29, at 21. 51 See Janice Nadler & Mary R. Rose, Victim Impact Testimony and the Psychology of Punishment, 88 CORNELL L.REV. 419, 445–46 (2003) (link). 52 See, e.g., DANIEL GOLEMAN, SOCIAL INTELLIGENCE: THE NEW SCIENCE OF HUMAN RELATIONSHIPS 96 (2006) (discussing the neural dynamics of empathy and compassion). 53 Neil Vidmar, Generic Prejudice and the Presumption of Guilt in Sex Abuse Trials, 21 LAW & HUM. BEHAV. 5, 6 (1997). 54 Id. The well known "moral panics" that led to child sexual abuse allegations against hundreds of daycare workers in the 1980s are a painful illustration of the results of this dynamic. See generally Bandes, The Lessons of Capturing the Friedmans, supra note 28. 103:17 (2008) Child Rape, Moral Outrage, and the Death Penalty http://www.law.northwestern.edu/lawreview/colloquy/2008/27/ 27 against the defendant, substantial numbers of jurors swore under oath that they could not be impartial in deciding guilt or innocence and were found partial by the triers.55 Capital sentencing hearings, which focus on the more subjective question of whether a defendant deserves to die, raise particular problems in this regard. Jurors may want to ensure that the ultimate punishment available is meted out, and that desire may override their ability to determine whether the particular defendant deserves to die. The life and death decision is inherently moral and emotional, but it must also be particularized. There is no mandatory death penalty for any type of crime, no matter how repugnant. The decision must focus on the question of which child rapists deserve to die, and there is reason to seriously question the ability of juries to make this decision based on constitutionally acceptable criteria.56 Finally, there is substantial evidence that race can play a distorting role in capital murder cases. As sociologist Craig Haney explains, jurors must cross an "empathic divide" in capital cases, and "in the case of African American capital defendants, the empathic divide" is especially wide.57 In the context of capital murder, a defendant accused of killing a white victim is significantly more likely to be capitally charged and sentenced to death than one who is accused of killing a black victim.58 As to what would occur if capital rape were reinstituted, the evidence about the role of race in capital rape cases prior to 1977 (when the Court held in Coker v. Georgia that the death penalty is a disproportionate sentence for the rape of an adult woman59) is not encouraging. Whatever one might think about the Coker decision-and I tend to agree with Berman and Bibas that it is emotionally tone deaf on the devastation caused by rape-the Court was facing a particular problem concerning race, rape, and the empathic divide. Consider these statistics from the defendant's brief in Kennedy v. Louisiana: 55 Vidmar, supra note 53, at 18. 56 Justice Kennedy's majority opinion expresses this very concern. See Kennedy v. Louisiana, No. 07-343, slip op. at 29 (U.S. June 25, 2008) (stating that when dealing with "a crime [such as child rape] that in many cases will overwhelm a decent person's judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be 'freakish'") (quoting Furman v. Georgia, 408 U.S. 238, 310 (1972)) (link). There is also reason to question the ability of prosecutors and judges to withstand the substantial pressures that arise in cases involving child rape and capital punishment. See, e.g., Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759 (1995) (discussing political pressure on judges in capital cases); JAMES S. LIEBMAN, ET AL, A BROKEN SYSTEM, PART II: WHY THERE IS SO MUCH ERROR IN CAPITAL CASES, AND WHAT CAN BE DONE ABOUT IT 169–170 (2002), available at http://www2.law.columbia.edu/brokensystem2/report.pdf (discussing factors interfering with fair verdicts, including effects of political pressure on prosecutors and judges) (link). 57 CRAIG HANEY, DEATH BY DESIGN: CAPITAL PUNISHMENT AS A SOCIAL PSYCHOLOGICAL SYSTEM 203 (2005). 58 See DAVID C. BALDUS, GEORGE WOODWORTH & CHARLES A. PULASKI, JR., EQUAL JUSTICE AND THE DEATH PENALTY 316 (1990). 59 Coker v. Georgia, 433 U.S. 584, 598–99 (1977) (link). NORTHWESTERN UNIVERSITY LAW REVIEW COLLOQUY http://www.law.northwestern.edu/lawreview/colloquy/2008/27/ 28 The practice [of executing rapists] originated in the antebellum South, where blacks were hanged (and often lynched) for raping white women; "[n]o white rapists are known to have been hanged." Even during the mid-twentieth century period ending with the last execution in this country for rape in 1964, over 89% of those executed for rape were black, while blacks and whites were executed for murder in almost identical numbers. All fourteen rapists Louisiana executed during the 1940's and 1950's were black.60 CONCLUSION There is ample reason to believe that the legal system should not simply place its imprimatur on the emotions evoked by child rape. The better path is the one Berman and Bibas recommend (though I would follow it to a different destination). We need to take those emotions very seriously. We also need far more empirical evidence on how a wide range of emotions operate and can be effectively channeled. Most important, we need to continue to evaluate the retributive emotions and debate their place in the legal system. Justice Stevens recently protested that our current death penalty jurisprudence is the "product of habit and inattention rather than an acceptable deliberative process."61 A broadly acceptable process will be one that both respects and evaluates the moral and emotional concerns animating the debate about capital punishment. 60 Brief for Petitioner at 43 n.16, Kennedy v. Louisiana, No. 07-343 (U.S. June 25, 2008) (citations omitted) (link). 61 Baze v. Rees, 128 S.Ct. 1520, 1546 (2008) (Stevens, J., concurring in judgment) (link).


Some emendations to Leftow's arguments about time and eternity (1998)

Philosophy

Some Emendations to Leftow's Arguments About Time and Eternity I am sympathetic to the view that, if God exists, then God is timeless. Consequently, I am (conditionally!) sympathetic to the project which Brian Leftow undertakes in Time and Eternity (Ithaca: Cornell University Press, 1991). However, it seems to me that the case which Leftow makes for God's timelessness is weakened by a number of bad arguments and dubious distinctions which he uses in developing his case. The aim of this note is to draw attention to some of the arguments and distinctions, and to suggest ways in which the ensuing difficulties can be circumvented. I At p.23, Leftow argues that, as a matter of physical necessity, no parcel of matter follows a discontinuous spatial path. He then uses this conclusion as a premise in a further argument to the conclusion that no non–theistic scenarios involving contingently existing entities could yield a sure way to gain evidence that a second time series exists. I think that there may be non–theistic scenarios involving contingently existing entities which yield ways of gaining evidence of other time series-it could be for example that our best theories about the very early universe entail that there are many disconnected regions of spacetime, each with its own time series-so I think that the further argument cannot be any good. However, the point I want to insist on here is that his argument for the conclusion that, as a matter of physical necessity no parcel of matter follows a discontinuous spatial path, is seriously flawed. Leftow's argument is as follows: Consider an object which moves from P1 to P4 without following a continuous spatial path. Somewhere between P1 and P4, there are two points P2 and P3 such that the object 'jumps' from P2 to P3 without occupying any continuous sequence of places between them. For convenience, suppose that this 'jump' is the only discontinuity in the object's trajectory. If the instant at which the object reaches P2 is identical to the instant at which the object reaches P3, then the object is wholly in two places at once. But that is impossible. Hence, there must be some temporal gap between the object's arrival at P2 and its arrival at P3. During this temporal gap, there is no place at which the object is located. But, if there is a time (interval) at which a physical object is not located anywhere, then at that time (during that interval) the object does not exist. But it is a matter of natural law-physical necessity-that objects do not cease to exist and then pop back into existence some time later. QED. There are various things which one might dispute in this argument. The phenomenon of quantum tunnelling-which does apply to macroscopic objects, though the probability is extremely small-suggests that it is quite compatible with what is plausibly taken to be natural law, that objects do have spatiotemporal gaps in their worldlines. Even if this were not so, it is hard to see how one could be very confident that discontinuous time travel is prohibited by natural law (physical necessity)-perhaps it is just a matter of boundary conditions that there is (or appears to be) no discontinuous time travel in our world. And so on. However, the crucial point on which I wish to insist is that a key move in the argument is invalid, and relies on an important misunderstanding about the nature of continuous motion. Leftow assumes that there must be distinct points P2 and P3 such that the object 'jumps' from P2 to P3 without occuping any points in between. And, on the basis of this assumption, he infers, from the claim that the object cannot be simultaneously at P2 and P3, that there must be a temporal gap between the object's arrival at P2 and its arrival at P3. But the assumption is surely mistaken. If an object is to follow a discontinuous trajectory with a single spatial 'jump' but no temporal 'jump', then one part of the trajectory will be an open interval and the other will be a closed interval. (Consider an ordinary continuous motion, and make a 'cut'. If the point at which the 'cut' is made is assigned to just one of the two parts which result, then one of the parts will be open and the other will be closed. The assumption that one would get two closed parts with no point in common is just the mistaken assumption that each point has an immediate successor-something which is certainly not true in the continuous case.) To think that this is impossible is just tacitly to deny that genuinely continuous motion is possible. Leftow's argument has impressive precursors. Thus, for example, we find Aristotle in the Physics, VIII, chapter 8, 262a19–263a3, arguing in support of the claim that, when Achilles is travelling continuously, we must not say that he reaches or arrives at any point which he passes through, as follows: If Achilles arrives at a point in his journey, then he clearly also leaves the point, for otherwise he would remain there, and hence never reach the tortoise. But at the time when Achilles has arrived at the point, he is at the point; whereas at the time at which he has left the point he is not at it, but beyond it. So the time when he has arrived, and the time when he has left are not the same time-and consequently they must be separated by an interval. But during that interval Achilles must evidently be at the point, since he has arrived at it but has not yet left it, and so we may conclude that if Achilles reaches or arrives at any point in his journey, he also rests at it. QED. (I have closely followed the exposition of the argument in D. Bostock "Aristotle, Zeno and the Potential Infinite" Proceedings of the Aristotelian Society, 72, 1972/3, p.42.) The problem here is that we need to think of the collection of times at which Achilles has left the point as an open interval; in that case, there need be no interval between the time in question and all the times which are later than it. Plainly enough, Aristotle's argument is a close cousin of Leftow's-both arguments depend upon not taking the notion of continuity seriously enough. Since it adds nothing to Leftow's case for God timelessness to insist that, as a matter of physical necessity, no parcel of matter follows a discontinuous spatial path, there is no reason why he should not just drop attempts to argue for this claim; if he still wishes to defend it, then he needs to find a completely different line of support. II At p.50, Leftow begins his discussion of 'the logic of eternity' with the suggestion that he needs to-and that he can-defend the consistency of the following principle: (T) 'God exists' is true, and yet for any t, 'God exists at t' is false. Given the disquotational properties of the truth predicate, there seems to be an immediate difficulty with the suggestion that (T) is defensible. After all, it is clear that if (T) is defensible, then so is the following principle: (T') At any time t, 'God exists' is true, and 'God exists at t' is false. But if at any time t, 'God exists' is true, then, by the disquotational properties of the truth predicate, at any time t, God exists-and hence, by what seems like a very small step, God exists at t for any time t. But then, using the disquotational properties of the truth predicate again, we have that, for any time t, 'God exists at t' is true. And so, just using the disquotational properties of the truth predicate (and the very small step) we can derive from (T') the contradiction that 'God exists at t' is both true and false. There is not much to object to here. One might claim that, even though 'God exists' is true, there is no time at which 'God exists' is true. But that seems desperate. From my point of view, here and now, there is no difference between the class of English sentences which is true, and the class of English sentences which is true now. If 'God exists' does not belong to the class of English sentences which is true now, then God does not exist. (Think how strange it would be to insist that the sentences of English expressing truths of mathematics do not belong to the class of English sentences which express truths now just because-we may suppose-the truthmakers for these claims are not entities which exist in actual spacetime. The truths of mathematics always have been, are, and always will be true even if they are not made true by entities belonging to the actual spatio–temporal manifold.) Since objecting to the disquotational properties of the truth predicate seems even worse, this only leaves the very small step. But how could one hope to argue that, say, 'At t, God exists' and 'God exists at t' are not merely trivial variants of the same claim? Of course, there is an important distinction to be made here, between sentences whose truthmakers are denizens of actual spacetime, and sentences whose truthmakers are not denizens of actual spacetime. Moreover, we would decide, say, that 'At t, p' is true provided that 'p' is made true by some truthmaker or other (regardless of whether that truthmaker belongs to actual spacetime), but that 'p at t' is only true if 'p' is made true by a truthmaker which belongs to actual spacetime. Under this decision, (T) and (T') are both consistent- and, in the case that there is a timeless God, both will turn out to be true. However, this decision is certainly not supported by ordinary usage, and it leads us to say things which sound very strange indeed. Surely a better suggestion is either to introduce some new terminology-perhaps we could insist on a distinction between what is true at a time and which is true of a time (the latter being the one which requires truthmakers belonging to actual spacetime)-or else simply to insist that, in the current context, we need to insist on suitable qualifying tags for all claims about truths about times where there might be confusion. ('2+2=4 is true now, but not in virtue of anything which belongs to the actual spatiotemporal manifold.' 'God exists now, but not in virtue of his belonging to the actual spatiotemporal manifold'. And so on.) Given that what Leftow needs is a language in which he can talk sensibly about a timeless God, there is clear reason to make use of the kinds of qualifying tags mentioned above (since these spell out exactly what is at issue). On the other hand, it is quite unclear how anything other than a love of obscurity and the sound of apparent paradox could lead one to embrace the suggestion that you need to show how it can be that some sentences are true but not true at any times. Since the intuition is that some sentences are true, but they are not made true by what happens in time, why not just speak plainly and call a spade a spade? III At pp.137ff., Leftow offers two analogies and two arguments on behalf of the claim that there could be a partless extension (or, any rate, that it is possible to make sense of the idea of a partless extension). It seems to me that the notion of partless extension is simply incoherent, and hence that the analogies and arguments which Leftow offers are no good. I shall begin by offering an argument for the incoherence of the notion of partless extension. The notion of extension is (roughly) correlative with the notion of measure: the volumes of extended things are measureable. It may be that the volumes of some extended things have measure zero-i.e. it may be that it is not just points (partless things) which have measure zero-but we can certainly say that things which have volumes with non–zero measure are extended. Moreover, it is simply an analytic consequence of measure theory that volumes with non–zero measure have volumes with non–zero measure as proper parts. And so it follows immediately that the notion of partless extension-i.e. of a volume with non–zero measure which has no volumes with non–zero measure as proper parts-is simply incoherent. (This argument is a little bit quick; it ignores certain complications caused by the fact that there are non–measureable volumes. However, I don't think that we need to worry about these complications here. The argument also ignores the case of extended things whose volume has measure zero-but it is clear that exactly the same considerations apply in this case.) Leftow's first analogy (pp.137ff.) involves a 'necessarily immutable atom' which 'necessarily occupies a particular volume of space'. He suggests that, in this case, the atom is clearly extended, and yet the volume which it occupies is indivisible and hence partless. However, it seems to me that this argument illegitimately conflates the properties of the atom with the properties of the volume which it occupies. Even if we can make sense of the idea that an object might necessarily occupy a particular volume of space-perhaps all universes have to be spherical, and they have to have a 'God atom' at the centre-it is just a mistake to suppose that such an occupied volume of space is indivisible because the thing which occupies it is. As I suggested above, it is analytic that a volume with non–zero measure has parts, even if it happens that the volume is occupied by an entity which is physically (or metaphysically) indivisible. Moreover, this objection does not depend upon adopting a substantivalist conception of spacetime-even on relationalist accounts of spacetime, it can be true that a physically or metaphysically indivisible entity has spatiotemporal parts. Leftow's second analogy (pp.140ff.) involves the notion of a 'chronon'-a unit of time than which there can be none smaller. He suggests that 'chronons' as typically conceived are not instants: they are characteristically supposed to have some very small duration (perhaps about 10-24 seconds). Consequently, he claims that the 'chronon' is an example of the consistent conception of a partless extension. I do not think that this can be right. If there are 'chronons', then time is discrete, and the 'chronon' provides the natural unit of time: 1 second is equal to about 1024 'chronons'. However, under this discrete measure, it is not true that an entity with 'volume' measure one has parts-the 'chronon' is not extended and it is partless. It is only if one incoherently combines elements of our distinct (and disjoint) conceptions of discrete and continuous measures that one can arrive at the idea of an extended temporal atom. Leftow's first argument (p.142f.) on behalf of the notion of partless extension attempts to establish that eternity cannot have parts (since, within eternity, nothing can overlap anything else). However, this argument does nothing at all to advance the cause of partless extension unless it can also be established that eternity is extended. Leftow suggests that, since God has experiences in eternity, eternity must be extended-but that suggestion relies on the assumption that experiences require extension, and, at the very least, that is an assumption which requires further justification. (There is also the threat that any justification which could be required would also establish that experiences have parts-indeed, if my earlier argument is any good, that is bound to be the case.) Leftow's second argument (p.143f.) on behalf of the notion of partless extension takes off from some observations about the concept of 'the specious present'. According to Leftow, 'we seem to experience a duration all of which is present'. Moreover, 'there may be .. an atomic length of human experiences such that no human experience can be shorter'. Given that these ideas are coherent, 'perhaps we can conceive of an eternal specious present as a necessarily unique, atomic–length, sole eternally enduring thing that exhausts eternal duration'. But if 'the eternal specious present' is 'atomic–length', then we must be supposing that we have a discrete metric, and hence we must be supposing that 'the eternal specious present' have no duration. So the adduced observations about 'the specious present' can lend no support to the conclusion which Leftow wishes to establish. Moreover, the data on which Leftow is relying seem to me to be doubtful. I do not think that we seem to experience a duration all of which is present; rather-if I can put it like this-we seem to experience elapsing durations. When I see something in motion, it isn't that I seem to see it here and there all at once, even if I do seem to directly experience its motion. That is, 'the specious present' seems to have parts which are given in experience (even in what we are naturally inclined to call 'a single experience'). And, even if this is denied, there is at least room for suspicion that Leftow's suggestion trades on a confusion between (i) the 'experienced' time of a 'specious present' (how much time it seems to occupy to the subject of the experience); and (ii) the 'external' time which is occupied by an experience (how much time the experience actually occupies). (There are, of course, many difficulties with the idea that we can assign 'external' measures to experiences-cf. the critique of 'the Cartesian Theatre' in D. Dennett Consciousness Explained London: Penguin, 1991.) I think that it is just a mistake to suppose that eternity must have a 'partless duration'. Either eternity has duration, in which case it is not partless, or else it has neither duration nor temporal parts. Both possibilities are defensible, but it is no part of my current brief to try to defend either of them here. IV At pp.167ff., Leftow discusses a series of modifications of the Stump–Kretzmann definition of the notion of ET–simultaneity. Since Leftow ultimately aims to do without the notion of ET–simultaneity, he is happy to conclude that he does not know whether there is any way of 'saving' it. However, it seems to me: (i) that there is a straightforward definition of the notion of ET–simultaneity to be had; but (ii) that this notion is not of any use in helping to clarify or explain the claim that God is timeless. The initial definition which Stump and Kretzmann give is as follows: (ET) For every x and for every y, x and y are ET–simultaneous iff: (i) either x is eternal and y is temporal, or vice versa; and (ii) for some observer, A, in the unique eternal reference frame, x and y are both present-i.e. either x is eternally present and y is observed as temporally present, or vice versa; and (iii) for some observer, B, in one of the infinitely many temporal reference frames, x and y are both present-i.e. either x is observed as eternally present and y is temporally present, or vice versa. Taking this definition at its word, its most obvious shortcoming is that it entails that the only times which can be 'present' to eternity are those in which there are observers. Pick some time at which there are no observers-indeed, pick a time very close to the big bang at which it is physically impossible for there to be observers: surely it ought not to be a consequence of any account of the relations between our spatio–temporal realm and the eternal realm that this time is not 'accesible' to eternity. Typically, discussions of ET–simultaneity do not take the definition at its word: by 'observer', we should be taken to mean 'potential observer' or 'possible observer', or the like. However, it is not clear that this understanding of the definition helps-for it seems plausible to think that there are many regions of space–time in which there could not be observers (e.g. at the centre of stars, in regions subject to strong gravitational tidal forces, in regions near singularities-including the initial singularity at the Big Bang-and so on). Moreover, even if this were not so, it surely could have been the case that God made a universe in which there could be no observers, and yet for which all space–time points were 'present' to God at eternity. Since the notion of ET–simultaneity ought to apply in that case, there is clearly something wrong with the definition (and with all subsequent amendments discussed by Stump and Kretzmann, Leftow, and others). It seems to me that this defect in the Stump–Kretzmann definition stems from a misunderstanding about the role of 'observers' in early formulations of the theories of relativity. While it is true that much of the early discussion of the theories of relativity is framed in terms of 'observers' and 'coordinates' and 'frames of reference', it has long been known that it is possible to frame these theories in 'coordinate–free' versions. Moreover, it is very tempting to go on to claim that the 'genuine' or 'fundamental' properties and relations are the ones which appear in these 'coordinate–free' formulations. One consequence of this claim is that certain properties and relations which were previously supposed to be 'genuine' and 'fundamental' turn out not to be so-for example, there is no 'coordinate–free' notion of simultaneity in the theories of relativity. Given that we are searching for a 'genuine' or 'fundamental' relation between the spatio– temporal and the eternal, we should not be looking for any kind of relation which is framed in terms of 'observers' (and 'coordinates' and 'frames of reference' and the like)-rather, we should be looking for a 'coordinate–free' relation. Such an account of the relation between the temporal and the eternal-i.e. of the notion of ET–simultaneity-is not hard to find: (ET*) For any x and y, x and y are ET–simultaneous iff one of x and y is (spatio–)temporal and the other is eternal. This is surely just the definition which is required: every (spatio–)temporal point is 'present' to eternity; and eternity is 'present' to every (spatio–)temporal point. Of course, this definition does not 'illuminate' the relation between the temporal and the eternal; no–one who is mystified by the claim that there might be non–spatio–temporal entities will suppose that this definition improves understanding. But exactly the same point could be made about the original definition (since 'eternally present', 'temporally present', 'observed as temporally present' and 'observed as eternally present' all require further elucidation in this context). Given that the aim is just to correctly characterise the relation between the eternal and the temporal, (ET*) does the job. At any rate, it seems clear that it does every job that the original definition-and any of the subsequent amendments-was qualified to do, but without relying on any misunderstandings about the proper formulation of theories of relativity. (For a somewhat similar critique of accounts of ET–simultaneity- though without any mention of theories of relativity-see Richard Swinburne (1994) The Christian God Oxford: Clarendon, pp.248–9.) V One of the most controversial aspects of Leftow's book is his treatment of spatial contiguity. At p.190 and p.225, he offers the following definition of spatial contiguity (I have amended the definition slightly to remove some logical difficulties): (SC) For any x which has or is a location in space and any y, x and y are spatially contiguous just in case there is no space between x and y. At pp.222ff, Leftow uses this definition to establish what he calls 'the Zero Thesis': (ZT) The distance between God and every spatial creature is zero. This thesis seems attractive because it can serve as a premise in an argument for the omnipresence of God; indeed, according to Leftow, it seems to offer the only possible literal understanding of the omnipresence of a non–spatial God. (John Earman seems to agree. See his Bangs, Crunches, Whimpers and Shrieks New York: Oxford University Press, 1995, Chapter 7, fn.9, and the paragraph to which this note is attached.) According to the standard definition of a distance function (or metric), we have that, for any points x and y, d(x,y) = 0 iff x=y. There are various options for extending this definition to give distances between entities larger than points; we need not worry about the details of these options here. However, the crucial point to note is that it is built into the foundations of measure theory that distance relations only hold between entities which belong to a single metric space. Moreover, the reason why this assumption is built into the foundations of measure theory is because it is one of the most fundamental commonsense assumptions about distances-if you are talking about relations between entities which do not belong to a single metric space, then you cannot be talking about distance relations. (How far is it from red to yellow? Is cleanliness next to godliness? Which is the nearest possible fat man in that doorway?) Consequently, it is simply analytic that two entities can only be (spatially) contiguous if they belong to a single metric space. Leftow acknowledges that his account of spatial contiguity appears to be in conflict with commonsense, but he claims that this appearance may be generated by a confusion. '... the Zero Thesis is problematic only if a zero distance is a positive distance. But a distance of zero is just an absence of positive distance.' (p.225) That isn't right, at least according to commonsense and standard mathematics. Look again at the highlighted feature of the familiar definition of a distance function: for any x and y, d(x,y) = 0 iff x=y, which entails that for any x, d(x, x) = 0. There is a single notion here-'being at a given distance from'-which applies in just the same sense in degenerate and non–degenerate cases. Commonsense agrees that to be at zero distance from something is to fail to be at some non–zero distance from that thing-but this does nothing at all towards establishing that to fail to be at some non–zero distance from a thing is to be at zero distance from it (because of the requirement that things which stand in distance relations must belong to a single metric space). Perhaps Leftow might reply that there is nothing to stop him from indulging in a bit of linguistic reform: why shouldn't we henceforth insist that everything which is 'outside' spacetime is at zero distance from everything which is 'inside' spacetime? Of course, this insistence will have other counterintuitive consequences-distance functions ordinarily obey a triangle inequality which will entail that all things which are 'outside' spacetime are at zero distance from each other unless we put further restrictions on our definition-but we could no doubt learn to live with this. However, the crucial question is: why bother? How does it advance our understanding of anything to indulge in this bit of linguistic reform? Since it is clear that this 'literal' understanding of the notion of omnipresence has nothing at all to do with traditional understandings of that notion, the most that this manouevre can achieve is to preserve the letter of traditional doctrine. But surely it would not be worth needlessly complicating fundamental mathematical theories in order to do that. Wouldn't it be better simply to say that God's omnipresence is to be understood in terms of the fact that all spacetime points are 'present' to God? Won't traditional theists be obliged to say something like this, in order to avoid falling into pantheism? (There are other places where Leftow seems to have problems with 'degenerate' relations. For example, at p.289, he claims that if a relational theory of time holds true in a one–state universe, then 'there is literally no time at which [the single event] occurs'. But that is absurd: in this degenerate relational theory, there is a single instant at which the sole event occurs- we might identify that instant with the set which contains that event, as is done in some relational theories, or we might proceed in any of a number of other familiar ways.) VI The above discussion does not come close to exhausting the places where I would want to dissent from Leftow's arguments. (Perhaps I can mention two more which are particularly important. At p.288, Leftow argues that, since every achieving of understanding could be a first event in a universe, and every achieving of understanding could be a last event in a universe, it follows that it is possible that there be an achieving of understanding which is both a first and a last event in a universe. This argument is plainly invalid: I could be the only person in the universe, or I could be one of thousands-but it is not possible that I am both the only person in the universe and also one of thousands. At p.258, Leftow argues against Lewis' analysis of 'might'–counterfactuals in terms of 'would'–counterfactuals: 'Tomorrow I will walk through my front door. I may then turn right and I may then turn left. But though I may do either, there is just one that I will do-say, turn left. Suppose now that a slightly different future were going to come about instead, one in which I do not leave the house at all tomorrow. It would then be the case that had the world been slightly different and had I been going to go out tomorrow, I might have turned right and I might have turned left, and in fact I would have turned left.' This argument is unpersuasive: for there is no reason at all to suppose that our world is a near–neighbour from the standpoint of nearby worlds. Who knows what counterfactuals will be true in that slightly different future in which I do not leave the house tomorrow. In particular, given that I am free to go left and free to go right, why won't it be that there are equally close alternatives in which I go left and in which I go right, so that there is nothing which I would do were I to leave the house?) Moreover, there are numerous other controversial doctrines on which Leftow insists, but of which I want no part-e.g. the doctrine that there are degrees of existence. (Surely it would be better to say that there are degrees of perfection amongst things, and leave it at that.) I can't hope to discuss everything here. However, all of this disagreement should not be taken to be an argument against the worth of Leftow's book. The historical discussions in the book are very illuminating, and a large part of the case for God's timelessness is very well made (in Chapter 12). There are various reasons why one might one to say that God is timeless, and Leftow has a good discussion of many of them. Nonetheless, there is a general point of criticism which seems worth making. If it is really true that an understanding of God's timelessness requires so many bizarre doctrines-degrees of existence, partless extension, the Zero Thesis, Principle T, and so on-then the upshot is likely to be a reductio of the claim that God is timeless, and perhaps also one horn of an argument by dilemma against the existence of God. (Either God is timeless or God is not timeless .... ) For this reason, it seems to me that theists ought to look favourably on attempts to explain how God could be timeless which do not invest in these doctrines. Of course, any explanation of how God could be timeless faces formidable difficulties (particularly if one insists on peculiarly Christian doctrines like the incarnation and the trinity). However, the outlines of the 'explanation' seem clear enough. Think of the universe as a complete spacetime manifold. Think of God as a being which is not located in the universe, and which does not overlap any of the parts of the universe. Do not think that there is a background spacetime within which both God and the universe are located. There can be a background framework of external relations-indeed, there must be, since we want to insist on causal relations between God and the universe. However, these external relations are neither spatial, nor temporal, nor spatiotemporal. And so on. Plainly, this sketch is the merest beginnings of an outline of an account of a timeless God. Perhaps there is no way in which it can be consistently developed. However, if it can be, then the obvious way in which to defend the intelligibility of the claim that God is timeless is simply to develop the account. In general, there is not much more that one can do in endeavouring to defend the coherence of a claim than to give a detailed description of a model in which the claim is true. Put in enough detail without threatening consistency, and things begin to look pretty good. I don't see why the claim that it is coherent to suppose that God is timeless is not susceptible of this kind of defence. Moreover, I don't see how else one could hope to mount a really compelling argument for the claim that it is coherent to suppose that God is timeless.