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This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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Saturday, December 12, 2009

Proposed principle of "judicial objectivism": Judges should try to avoid basing judicial opinions on personal opinions


JUDGE "JACKASS" JONES, POSTER CHILD OF JUDICIAL ACTIVISM

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My proposed principle of "judicial objectivism" is that judges should try to avoid basing decisions on their own biased personal opinions and should try to use reasoning that is so airtight that no reasonable person could find fault with it. I call it "judicial objectivism" to distinguish it from the general philosophy of "objectivism" and the "objectivism" of Ayn Rand in particular, though my "judicial objectivism" is related to those other philosophies' idea that there are truths or realities that are independent of individual perceptions. IMO the principle of "judicial independence" is actually harmful when it encourages -- as it did in the case of Judge "Jackass" Jones -- judges to base their decisions on their own biased personal opinions. Judges should have the humility to recognize that their personal opinions, even if valid, might be in disagreement with one or more other valid opinions. This proposed principle of "judicial objectivism" -- like my proposed principles of "non-justiciability" and the "compelling reason" test for non-literal interpretations of the Constitution -- is aimed at eliminating or reducing the courts' arbitrariness, capriciousness, "activism," and "legislating from the bench."
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"Opinion," like "theory," is a term that has a technical definition that differs from the everyday, colloquial definition. The technical definition of "opinion" in the law is, according to my Webster's New World Dictionary, Third Collegiate Edition, "the formal statement by a judge, court referee, etc. of the law bearing on a case." One of this dictionary's colloquial definitions is: "(1) a belief not based on absolute certainty or positive knowledge but on what seems true, valid, or probable to one's own mind, judgment." In comparing "opinion" to several synonyms, the dictionary also says, "opinion applies to a conclusion or judgment which, while it remains open to dispute, seems true or probable to one's own mind . . ." My "judicial objectivism" idea is aimed at eliminating or reducing the openness to dispute. As for "theory," maybe the Darwinists should hire process servers to serve process on governments in lawsuits charging that the government officially uses the term "evolution theory" even though the technical meaning of "theory" is different from the colloquial or everyday meaning.

The statement "ID cannot uncouple itself from its creationist, and thus religious, antecedents," in the conclusion section of Judge Jones' Kitzmiller v. Dover opinion, is a good example of a statement that violates this principle of judicial objectivism, because reasonable people can easily find fault with that statement. For example, many reasonable people believe that ID "uncouples" itself from creationism by strictly using only scientific arguments and avoiding religious sources. For example, intelligent design can be defined as the scientific study of the extent to which some living things appear to be designed rather than appearing to be a product of unintelligent causes, or can be defined as a scientific determination of the probability that living things could have arisen solely from natural genetic variation and natural selection.

IMO a good example of a ruling that satisfies "judicial objectivism" is the ruling in Romer v. Evans that particular groups of people cannot be barred from seeking the aid of the government, which Colorado's Proposition 2 did in effect (Proposition 2 prohibited all laws and regulations aimed at protecting homosexuals from discrimination). The majority opinion said,

Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

There was a lot of moaning and groaning that the courts, by striking down a proposition approved by the voters, had overturned the "will of the people," but IMO there is no reasonable argument against the above reasoning. The only counterargument that dissenting justice Antonin Scalia could raise was the feeble argument that this reasoning appears (in his opinion) to be new:

The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. It is ridiculous to consider this a denial of equal protection, which is why the Court's theory is unheard of.

Well, Antonin, there is a first time for everything, and the next time the principle is raised you certainly won't be able to argue that "[t]he world has never heard of such a principle."

I find other arguments of the majority to be unpersuasive -- for example, the majority said that Proposition 2 shows animus against homosexuals. But a lot of legitimate government laws and regulations arguably show animus -- for example, laws against gay marriage arguably show animus against homosexuals.
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11 Comments:

Anonymous Meteorega said...

> Judges should have the humility to recognize that their personal opinions, even if valid, might be in disagreement with one or more other valid opinions. <

What was the other valid opinion in this case?

Saturday, December 12, 2009 12:06:00 PM  
Blogger Jim Sherwood said...

One point is that ID didn't actually have creationist antecedents. Early ID proponents Kenyon and Behe were Catholics and were formerly Darwinists, as has been the rule for decades among Catholic scientists and Catholic intellectuals. Hence ID has, if anything, largely Darwinist antecedents, and Darwinist roots.

Saturday, December 12, 2009 3:28:00 PM  
Blogger Jim Sherwood said...

Although ID doesn't have any creationist roots or creationist antecedents that I can detect, it does have creationist associations of a sort, since many ID proponents are some sort of creationists as well. Dembski, Wells, Meyer and Casey Luskin all appear to me to be old-earth creationists. There are also young-earth creationists such as Paul Nelson among ID proponents. On the other hand, many other ID proponents believe that humans descended from some ancient species of monkeys, and thus are not creationists, by any reasonable definition of creationism. And some ID proponents even think that a naturally emerging intelligence designed some features of life. In any case, Behe, O'Leary, Mike Gene, and quantum physicist Ulrich Mohrhoff can hardly be called creationists. Perhaps "de judge" had some form of thinking similar to "guilt by association."

Saturday, December 12, 2009 3:55:00 PM  
Blogger Larry Fafarman said...

Meteorega said,
>>>>>> What was the other valid opinion in this case? <<<<<<<

I already pointed out that the statement that ID can "uncouple" itself from creationism is a valid opinion.

Saturday, December 12, 2009 4:16:00 PM  
Anonymous Meteorega. said...

> I already pointed out that the statement that ID can "uncouple" itself from creationism is a valid opinion. <

There is a great gulf between merely stating something and "pointing it out". How can ID "uncouple" itself? The idea of intelligent design without the need for a designer is certainly not self-evident.

Saturday, December 12, 2009 8:38:00 PM  
Blogger Larry Fafarman said...

>>>>>> How can ID "uncouple" itself? The idea of intelligent design without the need for a designer is certainly not self-evident. <<<<<<

I have already explained how ID can be defined in a way that eliminates a "need" for a designer:

intelligent design can be defined as the scientific study of the extent to which some living things appear to be designed rather than appearing to be a product of unintelligent causes, or can be defined as a scientific determination of the probability that living things could have arisen solely from natural genetic variation and natural selection.

The term "ID" can just be considered to be a very succinct way of representing those questions. "ID" can be considered to be an idiom, i.e., a figurative term that does not literally mean what it appears to literally mean.

Anyway, what is your point? If you don't like my example of a debatable ruling of a judge, certainly you must agree that there are good examples of debatable rulings of judges.

What I am particularly interested in is finding a valid argument against the ruling -- in Romer v. Evans -- that specific groups should not be barred from seeking aid from the government.

Sunday, December 13, 2009 12:32:00 AM  
Anonymous Gorfle said...

So you think this takes away the need for a designer?

"Intelligent Design" requires something that has that intelligence, i.e. a designer. There is no way around this.

If you are in a hole. Stop digging.

Saturday, December 19, 2009 11:47:00 AM  
Blogger Larry Fafarman said...

>>>>>> "Intelligent Design" requires something that has that intelligence, i.e. a designer. There is no way around this. <<<<<<<<

There are ways around that. As I said, "intelligent design" can be regarded as an idiomatic or figurative expression. ID can be considered to be the study of the extent to which living things appear to be designed instead of the products of chance, or could be considered to be the study of the probability that living things could have arisen from random genetic variation and natural selection alone. And as I have pointed out, co-evolution can be a problem for evolution even if the traits involved do not appear to be designed -- in co-evolution, there may be nothing to adapt to because the corresponding co-dependent trait in the other kind of organism may be locally absent.

>>>>> If you are in a hole. Stop digging. <<<<<<

If you are digging a hole to China and you are near your goal, keep digging.

Saturday, December 19, 2009 1:13:00 PM  
Anonymous Anonymous said...

"If you are digging a hole to China and you are near your goal, keep digging."

Maybe this was actually your fault???

Wednesday, December 23, 2009 11:52:00 PM  
Blogger Larry Fafarman said...

ha ha, very funny -- not!

Thursday, December 24, 2009 12:56:00 AM  
Blogger Lee said...

I'm not sure you really understand what Godwin's Law really means. Every time you compare someone who didn't organize a multi-million body count holocaust and one of the largest wars the planet has every known to Adolph Hitler, your argument becomes invalid because it demonstrates a complete lack of grasp on proportions..

Friday, February 26, 2010 2:34:00 PM  

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