Repeat names (other than mine) make derogatory comments about any party, supply links or raise the substantive issues in dispute on this blog and your comment will be deleted. The MandM blog will show respect for the Judicial process and respect to all the parties to the proceeding.

The Respondent has chosen to bring this matter into the public realm by blogging it and publishing selective parts of our affidavits minus the exhibits; therefore I now deem this statement necessary to mitigate harm.

On 2 May 2012 my Barrister filed two applications in the Auckland District Court on my behalf against a blogger; these were:

• An application for a Restraining Order, with special conditions, brought under the Harassment Act 1997. The specific acts of Harassment I alleged in my application were: defamation and threats to employment.
• An application to have my Restraining Order application heard together with another Applicant who had also filed two applications on the same day against the same blogger. The specific acts of Harassment that the other Applicant alleges she has been in receipt of from the blogger were: defamation, threat to employment, threat to mental-well-being, breach of privacy.

The Applications were joined under one CIV number, the Respondent served, and a court date was set down. The matter will be heard in the Auckland District Court on 31 May 2012 at 11am. It is open court, anyone wishing to be there can sit in the public gallery.

There are a number of myths floating around in respect of this case; I will correct these here:

• The other Applicant’s and my case has not been tossed out or dismissed; reports to the contrary are false. The hearing remains set down for 31 May 2012.
• I am not acting in this case. I have, at times, acted for myself in this case, I have drafted all my own papers, but acting for onself is not what is meant by the term “acting in a case”.
• I would not personally bring a case that lacked cause, neither would I ask for my case to be heard with one that I honestly thought did not. My motives are genuine and I believe the other Applicant’s to be also.
• I have adhered, to the best of my ability, with Matthew 18; so has the other Applicant. We both tried to settle this, more than once, before taking the step of filing as a last resort.
• Neither of us wanted to make this move, neither of us are enjoying this process, we would much have preferred that it was never necessary in the first place.
• Whilst the Respondent has not filed a defence, she has blogged, emailed and tweeted her position. The Court has been provided to the best of our ability every single word she has said of relevance to this case including things she has has alleged, both publicly and in correspondence to our Barrister, as her evidence. We take our obligation to provide the Court with all the relevant evidence seriously. We want an impartial third party to rule on all the evidence. We are not interested in trial by blog, media or only one person’s word. Truth and justice is best served when all sides are considered in an environment where they can be tested impartially. It is my sincere hope that the Respondent reconsiders her position and files a defence.
• It is patently false that poor people in New Zealand cannot defend themselves when facing civil suits. Civil Legal Aid is easy to get if the person applying is on a benefit and has debts; the forms are available online here. I know this because I have just applied to become a supervised provider of Civil Legal Aid. (Notably, neither I nor the other Applicant qualify for Civil Legal Aid.)

Both the other Applicant and I work in careers that require us to maintain certificates of standing in terms of our character. Both of us are the primary earners in our households and we have others depending on our incomes.  We both accept that people do not have to like us, not agree with us, they can even call us names and write highly critical things of us if they choose to, that is their right – and I have certainly been subjected to my share of that over the years as a blogger – the issue here is speech and conduct that harms or poses a real risk of harm, and each of us feeling we were no longer able to ignore the Respondent’s actions because they were impacting us adversely. This, we are entitled under New Zealand law to seek legal remedy for.

I remind all reading this that only a small handful of people have access to all sides of the story and the evidence each party has raised in support of their position. I urge everyone to wait on the court before passing judgement or forming an opinion on the evidence.

Update
The media have reported on a without notice interlocutory injunction filed in this matter which was ruled on on Friday. The media have reported that it was “denied on a legal technicality … But the Auckland District Court judge said she would reconsider the case if the paperwork was amended.” They have also said that it was an “injunction to have her website pulled down.”

I will address this:

1. The injunction filed last week was not a request to have the blogger’s website pulled down. It was a request for an interim restraining order preventing any further acts  of harassment between now and the hearing and requesting a return to the status quo at the time of filing, this would have meant that all material published after we each filed must be removed from public view pending the hearing.”

2. As stated above, the Court had before it every thing we could possibly find to show the Court the blogger’s case, right down to her “evidence” she emailed our lawyer, explanations she gave our lawyer, her blog posts, comments on her own blog and others blogs, her tweets.

3. The Judge did deny the injunction on a technicality; the technicality being that in the Judge’s opinion, the Harassment Act does not permit injunctions. No one had tested that before and we figured it was worth a try on an equitable argument because another Judge had indicated it was possible. Lawmakers currently considering revisions take note: there is no way of getting interim relief from harassment under the Harassment Act, which states in s15 that all applications must be on notice.

4. The Judge did indicate that had we just filed Defamation or Breach of Privacy, she would have considered granting our request. This is quite outstanding; injunctions for Defamation are almost unheard of. She even went so far as to encourage us to refile and give us suggestions:

“Whilst I have sympathy for the predicament that the applicants express themselves to be in because they have not filed and do not propose to file a substantive proceeding asserting the existence of cause of action in protection of an underlying legal or equitable right, the Court cannot grant then as interlocutory injunction.
An application for a Restraining Order under the Harassment Act does not qualify
: – it does not seek to protect an underlying legal or equitable right.
The Harassment Act itself does not provide for interim relief and without a separate substantive claim the Court must decline the application.
However were the applicants to file a Notice of Claim alleging Defamation or Breach of Privacy for example, the Court would then be able to reconsider the Injunction application in that light.
The applicants have referred to breaches by the defendant of certain XXXXX XXXXX.
They should refer these breaches to the XXXXX Judge when made the XXXXX on the basis that contempt proceeding maybe appropriate.”

5. An interlocutory injunction is a separate action within a case, an injunction not succeeding because of a technicality, and not because of deficiency of the evidence, does not in any way entail that the case itself has been thrown out or that the case itself lacks merit. The hearing remains set down for 31 May 2012 at the Auckland District Court.

You can listen online here.

You can listen online here.

You can listen online here.

Interestingly, there is some overlap in his comments and mine, particularly the issues regarding “social obligations” and how moral obligations constitute reasons for action.

Enjoy

In my previous post, I noted that Robert Adams has argued that if God exists, then divine commands “best fill the role assigned to wrongness by the concept”.[1] He argues that if moral obligations are divine commands this explains the fact, that (i) “wrongness is an objective property of actions,”[2], (ii) it accounts “for the wrongness of a major portion of the types of action that we have believed to be wrong,”[3]   (iii) it “plays a causal role … in their coming to be regarded as wrong”,[4]  (iv) it explains how moral obligations constitute a “supremely weighty reason” for acting or refraining from an action,   and (v) he contends that DCT explains the intuition that moral duties comprise “a law or standard that has a sanctity greater than that of any merely human will or institution”.[5]

Moreover, in my last post, I also argued that, for Armstrong to conclude his arguments call into question any theistic account of ethics, he must argue that his harm account of moral obligation provides a better explanation of all these features. Failing that, if his account doesn’t preserve these features of moral obligation, then he must provide us with a reason to suppose that they are not part of the concept of moral obligation. Or he must provide reasons for revising our concepts.

In his monograph “Morality without God” he attempted to do this. It’s my contention that he has failed in this task.

1. Social Requirements

Let’s begin with (v), In “Morality without God”, Armstrong purports to address this line of argument, he claims that “the best line of argument-because it is the only argument is that moral laws require a lawgiver”[6]. He attributes to popular writer Dinesh D’Souza. He then proceeds to make short work of D’Souza’s argument.

However, this is neither the best, nor the only argument offered in favour of a DCT. In subsequent articles and a monograph, Adam’s has developed (v) in some detail.[7] Adam’s proposes a “social requirement theory” of obligation whereby “being obligated to do something consists in being required (in a certain way under certain situations) by another person or groups of persons not to do it”[8]. Obligations are a kind of social relationship where one person makes a demand on another, failure to comply results ruptures in the relationship expressed in terms of blame, censure, punishment and alienation, which can be expiated by forgiveness. Adam’s offers a sustained argument that the role of guilt, censure, punishment, social inculcation, moral motivation, moral knowledge and forgiveness plays in our concept of obligation, make a social requirement theory plausible.[9] Nowhere in Armstrong “Morality without God” does Armstrong even cite let alone address this argument.

2. Supremely Weighty Reason

Similar problems afflict  (iv) In “Morality without God”. In this regard Armstrong provides two arguments as to why his account provides a better explanation of this feature of moral obligation.

First, he argues that divine commands do not constitute the right sort of reason for action. “If our only motivation to avoid hell or go to heaven, then our motivation is far from ideal”[10]

Second, he argues that the fact that “harming others is sometimes in our best interests”[11] does not entail people have no reason to refrain from harming others. Because, as Armstrong carefully goes on to argue, people can have reasons to not harm others which are independent of self-interest.

Both arguments attack a straw man. The first assumes that the only reasons divine command theorists give for obeying God is “divine punishment”. This, however, is false. While Adam’s social requirement theory does allow censure, blame and social estrangement and punishment to provide some reason for compliance with a person’s commands, he argues this is insufficient to turn a person’s demand into a moral one. The reason to comply with social requirements becomes stronger if the demand is a reasonable one. This reason becomes stronger again if the person who makes the command is a just person who loves us and is committed to our welfare. It becomes stronger still if the person is significantly more informed about the matter in question than we are. The commands of God, a perfectly rational, omniscient just and loving person, then provide supremely weighty reasons for compliance.

It’s hard to see how Armstrong could dispute this given he thinks an act is irrational if “normal people” would never advise someone “they cared about to do it”. If it’s irrational to act in such a way that normal, loving people would advise us against, how is it arbitrary to act in accord with the commands of an omniscient, rational, loving and just person?

The second argument assumes that defenders of DCT claim that if harming someone is in our best interests we have no reason to refrain from harming others. This is also false: Hare[12], Layman,[13] and Craig[14] argue that unless self-interest and morality ultimately coincide, one does not have an overriding or supremely weighty reason for so acting.  One can have reasons for not harming others, but these reasons can be overridden by self interested ones.[15] Or they don’t count as reasons for “virtually everyone”[16]

Armstrong fails to address this criticism. Showing that we have a reason to not harm others does not show we cannot have other stronger reasons to harm others. In fact Armstrong later explicitly states that his account does not “establish a strong reason to be moral”, which he defines as: “a reason strong enough to motivate everyone to be moral or to make it always irrational to be immoral”[17] So far from refuting this claim he appears to concede  the point.

3. Accounting for the content of obligations 

Armstrong also fails to address (ii). Adam’s contends:

The property that is wrongness should belong to those types of action that are thought to be wrong- or at least it should belong to an important central group of them. It would be unreasonable to expect a theory of the nature of wrongness to yield results that agree perfectly with pre-theoretical opinion. One of the purposes a metaethical theory may serve is to give guidance in revising ones particular ethical opinions. But there is a limit to how far those opinions may be revised without changing the subject.[18]

Our pre theoretical intuitions suggest that there are a number of important cases of wrongful actions which cause no harm. Acts such as recklessness or attempted murder or conspiracy to commit harm, are obvious examples. Here however I will focus on one important example. Suppose a doctor derives sexual gratification fondling a child under general anaesthesia. Providing that the child was not informed of the event, it’s difficult to see how any of the typical, psychological harms associated with child molestation would occur. Nor, from fondling, need there be any physical harm involved in such an instance either. Yet the action is clearly wrong.[19]

In “Morality Without God” Armstrong provides two responses to this kind of counter example.

First, the while the doctor causes “no actual harm”[20] he created a significant risk the patient would find out and suffer harm in the form of “pain and humiliation”[21] This is an implausible response, if wrongness is identical with the property of causing harm, then, if there is no actual harm, the action is not actually wrong.  Moreover, this response entails that a person who knows about such molestations and covers them up is acting in a morally laudable way, while the person who reports the incident engages in serious wrongdoing. The former act decreases the chance that anyone will find out, and hence decreases the risk of harm. By contrast, in virtue of the fact that it elevates the risk of the victim discovering what the doctor had done, the latter significantly increases the risk of harm.

Second, Armstrong contends that actions like this qualify as harm. Discussing a similar case involving the rape of an unconscious woman Armstrong states:

“the doctor causes his victim to lose her ability to control what happens to her body in a very intimate way. He also violates her rights and dignity and such violations can count as harms”[22]

Here Armstrong identifies harm with loss of ability to do what happens in one’s  body, and violation of rights. He elaborates the relationship between these two ideas in an earlier paper [23] where he distinguishes between a neutral loss and a moral loss. The former involves the loss of something valuable; the latter involves the loss of something valuable that the looser has a right to. It’s morally wrong to cause moral losses on others, not neutral ones. This elaboration suggests that Armstrong understands the harm of sexual assault to be violation of the right to control one’s body intimately. This right is grounded in that person’s dignity.

However, this raises an immediate challenge. One important criticism of naturalistic ethics is that it cannot provide a plausible account for human dignity and rights.  Craig himself has argued that “on the atheistic view, there’s nothing special about human beings”. Rather, it’s a human “temptation to species-ism, that is to say an unjustified bias in favor of one’s own species.”[24] Craig’s references to “speciesism” – a term associated with Peter Singer – allude to a serious point made by both Singer and Nicholas Wolterstorff. In Justice: Rights and Wrongs Wolterstorff challenges the secularist who believes in human dignity and rights to identify a non-theological or non-religious property that:

(a) is possessed by all members of the human family;
(b) is not possessed by a terrestrial non-human animal;
(c) can be plausibly said to give humans worth sufficient to account for the standard rights we grant to humans; and,
(d) is not a property that is possessed by different humans to different degrees.[25]

Criteria (a) and (b) are required if rights are going to be granted to all human beings and not to animals like cows or dogs; (c) is required for the property to ground the kinds of human rights we recognise; (d) is necessary if all people have “equal rights”. If the property that grounds rights comes in degrees, and some people have it more than others, then people will not have equal rights. The problem according to Wolterstorff, is that no non-theological property we know of appears to fill this roll. Singer, a non-theist, has made the same point: arguing that our moral codes must be radically revised so that the welfare of human infants is not given more importance than that of pigs.

Armstrong anticipates this objection and responds:

[H]umans are moral agents, because they are free and have freewill….The kind of freedom needed or useful here involves the ability to reflect on and respond to reasons… Because normal adult humans have the ability to tell what is moral and immoral, and because they have the ability to reflect on their choices and conform to what they take to be moral, they are governed as well as protected by morality…they have moral duties in addition to moral rights, in this respect humans are special even according to secular morality[26]

This is far too quick, as Wolterstorff[27] and Singer[28]  have both pointed out, normal adult humans have these properties but infants and small children do not. Infants do not have free will, children are not moral agents in this sense either. David Boonin has noted “by any plausible measure dogs, and cats, cows and pigs, chickens and ducks are more intellectually developed than a new born infant.”[29] So this answer gives us no reason for thinking a child or infant has a rights or dignity, over and above any other animal, and so fails to address the counter example I mentioned.

[1] Robert Adams “Divine Command Meta-Ethics Modified Again” Journal of Religious Ethics 7:1(1979) 74.

[2] Ibid, 74

[3] Ibid, 74.

[4] Ibid, 75

[5] Ibid, 75.

[6] Walter Sinnott-Armstrong “Morality without God” 97

[7] See Robert Adams Finite and Infinite Goods (New York: Oxford University Press, 1999) and “Divine Commands and the Social Nature of Obligation” Faith and Philosophy 4 (1987) 262-275.

[8] Robert Adams Finite and Infinite Goods (New York: Oxford University Press, 1999) 242.

[9]Ibid chapters 10 and 11, see also  “Divine Commands and the Social Nature of Obligation” Faith and Philosophy 4 (1987) 262-275.

[10] Walter Sinnott-Armstrong “Morality without God” 119

[11] Ibid, 114

[12] John Hare The Moral Gap (Oxford: Clarendon Press, 1996; Paperback 1997); Why Bother Being Good? (Downers Grove, Illinois: InterVarsity Press, April 2002); “Moral Faith and Providence” a paper presented at the 1996 Annual Wheaton Philosophy Conference, accessed 27 December 2010; “Is Moral Goodness without Belief in God Morally Stable” in Is Goodness without God Good Enough: A Debate on Faith, Secularism and Ethics eds Robert K Garcia and Nathan L King (Lanham: Rowman & Littlefield Publishers, 2008).

[13] C. Stephen Layman “God and the Moral Order” Faith and Philosophy 19 (2002) 304-16; “God and the moral order: replies to objections” Faith and Philosophy 23 (2006) 209-12; “A Moral Argument for The Existence of God” Is Goodness without God Good Enough: A Debate on Faith, Secularism and Ethics eds Robert K Garcia and Nathan L King (Lanham: Rowman & Littlefield Publishers, 2008) 49-66.  Layman is not himself a divine command theorist, he simply argues theism accounts for the overriding nature of moral obligations better than atheism does.

[14]  William Lane Craig “This Most Gruesome of Guests” in in Is Goodness without God Good Enough: A Debate on Faith, Secularism and Ethics Eds. Robert K Garcia and Nathan L King (Lanham: Rowan & Littlefield Publishers, 2008) 182.

[16] Robert Adams “Moral “Moral Arguments for Theistic Belief” The Virtue of Faith and Other Essays in Philosophical Theology (New York :Oxford University Press 1987) 158

[17] Walter Sinnott-Armstrong “Morality without God” 118

[18] Robert Adams “Divine Command Meta-Ethics Modified Again” Journal of Religious Ethics 7:1 (1979) 74

[19] See Matthew Flannagan, Is Historic Christian Opposition to Feticide Defensible in the 21^st Century? 274

[20] Walter Sinnott-Armstrong “Morality without God” 58

[21] Ibid

[22] Ibid, 57.

[23] Walter Sinnott-Armstrong “You Can’t Lose What You Aint ever had: A Reply to Marquis” Philosophical Studies 96, 1997: 59-72

[24] William Lane Craig “Opening statement” in Are the Foundations of Morality Natural or Supernatural? A Debate between William Lane Craig and Sam Harris. University of Notre Dame, 7 April 2011, transcript available at http://www.mandm.org.nz/2011/05/transcript-sam-harris-v-william-lane-craig-debate-%E2%80%9Cis-good-from-god%E2%80%9D.html

[25] Nicholas Wolterstorff Justice: Rights and Wrongs (Princeton NJ: Princeton University Press, 2008) see chapter 15.

[26] Walter Sinnott-Armstrong “Morality without God” 70-71

[27] Nicholas Wolterstorff Justice Rights and Wrongs 325-341

[28] Peter Singer Practical Ethics

[29] David Boonin, A Defense of Abortion (Cambridge: Cambridge University Press, 2003), 121, the neurological data is summarized in Michael Tooley’s  Abortion and Infanticide (New York: Oxford University Press, 1983) Ch. 11.5.

You can listen online here.

You can listen online here.

You can listen online here.

In the past week we’ve had people phone, email, text and raise in conversation that Easter was invented by Constantine, that the bunnies and the buns are pagan and thus consuming them is an offence against God. We’ve heard that the dates are wrong and that Easter dates do not coincide with Passover, that it is a Roman festival, while others say that Easter is tied up with Ishtar. This wasn’t limited to people coming to us; Matt was on the Pat Brittenden Mornings Panel earlier in the week and because of that we heard that talkback radio was full of this too. So, it was very cool that Matt and I were able to have a word with the producers at Radio Rhema after the Panel, and put them in touch with Dr Tim McGrew whose interview as to Whether Easter is Pagan aired on Tuesday – click the link to listen.

Tim is a good friend, a world renowned scholar whose expertise on miracles and particularly the historical accuracy of the resurrection qualifies him as an authority on some of these Easter-is-pagan claims. While he does not touch on all of the above in the interview he debunks a lot of it.

Normally Matt and I try to do a Passover-ish meal – we do lamb, rosemary and red wine – and the kids all get to choose a king size block of chocolate each (they reason they get more chocolate for the money than buying Easter Eggs) and I try to ensure indulgement in a decent hot cross bun. Throughout the weekend we focus on Christ, his death and resurrection. We read relevant passages, we have conversations about the Passover and the fact that Christ is the fulfillment of it, in years gone by when the kids were younger we’ve made Easter story cookies. Basically we enjoy the food, the public holiday and we weave learning opportunities and ways to focus on Christ in as we go so that the thrust of Easter is on him.

We are not worried about taking this approach because Christ conquered all and our focus and heart and intent is on him. Don’t get me wrong, it is important to pause and check that one is not engaging in Paganism but just because something at some point had something to do with Paganism does not mean it is Paganism presently. Tree worship is common among Pagans so must we eschew wood? What about Pythagorus’ theorem? If Easter was just Ishtar worship then we would not be celebrating it; how many of us wanting the spiritual side of Easter are heading to the local Ishtar temple this weekend? As for Constantine inventing Easter, direct evidence for Easter being celebrated by Christians can be identified in the 2nd century, some couple of hundred years prior to Constantine – Wikipedia can tell you that much.

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