Critical Thinking: Primary Concepts

My Critical Thinking: Primary Concepts mini-text, suitable as a one-to-four week session in just about any class that needs a section on argumentation. Creative commons licensed so you can remix it, edit it, etc. You just can’t sell it!

Should Government Be Involved In Marriage?

Somewhat off my normal beat, but here’s a rough draft for an article on civil marriage:

With marriage rights now extended to same-sex couples, a new chorus of voices has been asking why governments should have anything to do with marriage. Some claim that marriage is essentially a religious institution, others, more libertarian, think that governments simply have no business in our personal lives.

But both of these positions seem to misunderstand what marriage is. Both historically and currently, marriage is and has been a contract. Some of the earliest written documents we have are marriage contracts from ancient Sumeria. And understanding marriage as a contract makes it clear why it is the business of government.

There doesn’t need to be any government agency involved in two people deciding to cohabit, to swear their love to each other, or to take religious vows of fidelity. And one version of marriage could be simply these informal arrangements.

But a contract, as such, is among the most central areas of governmental agency. Without a government to enforce them, contracts lose their value. Even libertarian minimalists understand that it is the business of government to make sure that those who violate contracts are punished, and that contracts that ask that people engage in illegal actions be unenforceable.

It’s a problem of contracts that written language is open to many interpretations, and that’s one reason why there are certain standardized contracts. Wills, for example, have a long history of case law that clarifies what can and cannot be enforced in such documents, and establishes how terms are to be understood. Similarly, adoption and incorporation, understood as contractual relations, are given force and shape by the legislative, judiciary and executive functions of government in establishing types of contracts, interpreting their entailments, and enforcing their terms.

A feature of contracts is that they not only affect those who sign on to them, but can clarify how others interact with the contracted individuals. For example, if an agent of an LLC commits a tort against someone outside of the LLC, but while acting specifically in the business of the LLC, the wronged party can sue the LLC. A partnership agreement can include language that allows the partnership to take on debt, such that a debtor would not see recompense from one member of the partnership, but from the partnership and its assets.

It’s in the government’s interests to make sure that only certain people sign on to contracts. A person with limited capacity to understand the meaning of a contract cannot legally sign on. An adoption contract can be entered into only by parties deemed to be capable of fulfilling its terms.

All of the above applies to marriage contracts and is part of what makes them so valuable. Only parties capable of understanding the contract may enter into it. Some parties are deemed, by statute, as too immature for the contract. And, as in many contracts, parties who are not signed on to the contract are guided in their behavior towards contracted parties. For example, it makes sense that if someone is gravely injured, a hospital should not allow just anyone to ender the injured person’s presence, especially without supervision. A marriage contract is a way of selecting someone who may make decisions for, and enter the company of, an unconscious or diminished person. The hospital is enjoined by the contract, though they did not sign it, just as someone who loans money to an LLC is enjoined by certain aspects of the terms of the LLC.

Most contracts contain many elements, provisions, rights and transferences. A strong body of case law is helpful in creating a consistent set of standards for incorporations, partnerships, mortgages, etc. A marriage contract, similarly has many elements. These can include property sharing, protection against being compelled to testify against a marriage partner; the right to reside in the country of citizenship of either marriage party member; the right to share in certain employment benefits, such as healthcare; presumption of parenthood over a child born or adopted into the marriage; priority of conservatorship; military spousal benefits; automatic renewal of leases signed by one spouse even if that spouse is deceased; the right to sue for wrongful death of a spouse; visiting rights towards a jailed spouse; etc.

This contract cannot exist without an executive to enforce it. There are obvious benefits to this contract for those who wish to enter into a particular kind of partnership with another person. None of this precludes informal arrangements, such as living together or purely religious marriages. It merely establishes a well-reviewed set of case law for those willing to make the commitment to legal marriage.

One response among some libertarians has been to call for the complete privatization of marriage, but this misunderstands the nature of a contract. There is no purely private contract, since contract enforcement still depends upon the existence of a judiciary to interpret in the case of dispute and an executive to enforce the contract in case of breach. Further, the existing marriage contract has been widely vetted and accepted, whereas a new contract will still have to be tested. This could create problems if a couple signed a contract and found, upon judicial review, that it was invalid. Finally, the way a contract enjoins third-parties in their relations with the contracted parties, and the fact that the marriage contract can grant rights such as citizenship, make it irreplaceable with any novel contract which would necessarily lack these benefits.

Of course, with the benefits of the contract come responsibilities. A spouse may cause debt that both parties must bear, for example. And this list of contractual elements has been refined over the years: at one time, in some jurisdictions, a woman lost all property rights during a marriage. In California, during the 19th century, a woman could not be found guilty of a non-capital offense if she committed it in the presence of her husband.

Rightly, these elements of the marriage contract have been jettisoned. It seems likely that the contract will continue to evolve. It’s certainly worthwhile to review this contract. As with incorporation, debt, employment and housing contracts, critical review of existing benefits, protections and responsibilities incurred by the contract can be helpful in refining it.

But to say that marriage is not something for government to be involved in is to misunderstood one important element of what marriage is: a legal relationship that is necessarily mediated by existing laws, and which is reinforced by a long history of judicial review. Romantic, religious and spiritual connections may not require this, but marriage is a more complex partnership than that, and the practical needs of many couples will be best served by this contract.


Environmental Identity

Strohminger and Nichols research (Cognition 131 (2014) 159–171) indicates that people consider moral traits to be more important than memory for identity. This is perhaps not so surprising, although the philosophical literature hadn’t really been looking at consistency of moral traits, focusing instead on other psychological characteristics, especially memory, or on physical continuity.

But it implies a disturbing conclusion when combined with situationist accounts of ethics. If, as writers like Doris (Lack of Character, Cambridge, 2002) and Gilbert Harman claim, our ethics are not so much based on our character traits but our environment, then it seems that personal identity is not internal, but environmental.

Or at least it is if we take the popular view that moral character is essential to identity, and we accept the situationist’s results. We could claim that the common view is wrong, that ethics are not a necessary part of identity. Or we could note that our internal character traits, even on situationist accounts, do provide some part of our ethical makeup, just not the overwhelming or decisive part. Then we could say that that part of our ethical makeup is where identity resides.

Still it would be interesting, and fruitful, to look at how identity is environmental; we may, in some sense, become different characters in differing environments, and even, in a real and important sense, become different people.

That is, if our character can be radically altered, we may not recognize ourselves in our actions, and those who know us best may also not recognize us. An environmental notion of identity could capture these changes and produce an expanded sense of character, self and person. Who we are and where we are may be more deeply linked than the idea of the discrete individual, containing him or herself inside of skin-boundaries and across time, can account for.

Can a Self Persist Across Time?

Hume famously noted that when he introspected, he found no self, just a constantly shifting “bundle” of impressions. The self, such as it was, was at best a fleeting thing, having identity only as long as the bundle remained consistent, and losing that identity as the bundle shifted to new thoughts, feelings, and intentions.

Galen Strawson took this idea to imply that instead of a self, we have a series of selves, “pearls” on a string, as he first conceived them, each passing to the next. The self was a thing that lasted, on Strawson’s account, only for a few seconds or minutes, until its character was dissolved by the next set of impressions.

Others, like Locke and Parfit, have noted that there is a somewhat greater consistency to the self in that it draws upon the same memories and evinces the same habits, at least for a time. These, too, drift, but they last far longer than the seconds or minutes of Hume’s bundles or Strawson’s pearls.

All of these focus solely on the experiencing self. But what if we looked at the underlying hardware, as it were. If Hume and Strawson are right, then we cease to have selves when we sleep. And when we awake, we are new selves, not at all the selves that went to sleep.

But imagine working on a computer. You have a paper in progress, you’re keeping a few browser windows open, there’s a game in another window, and  the hard drive is full of all your previous works. When you put the computer to sleep for the night, it ceases to be actively attending to any of these tasks, but they’re ready and waiting when the computer is roused in the morning.

Similarly, our brains hold much of our mental life in place. Certainly not with the precision (and parsimony) of the computer, but when we go into sleep mode, while some active processes are lost or start to degrade, much remains for when we restart in the morning. And if we think of the self not merely as the experiencing self, the passing show or bundle, but as the entire organism of subjective potential, contained, at least largely or in important ways in the matter of the brain, then there is a self across time.  And, though it isn’t doing much while we sleep (at least during dreamless sleep), that doesn’t mean it doesn’t exist. It’s there, just as our computer’s memory state and capacities are there, waiting to be woken.

Perhaps a non-active self makes no sense, perhaps  that’s not what “self” means. But if by “self” we only mean “self-experience,” there must be still be some self to be experienced, and it seems profitable to think of it as a thing that can sometimes be doing nothing. We don’t think of other things as vanishing when inactive; perhaps the self is best thought of as simply quiescient, rather than gone, when it is not in service. And if that’s the case, then the “bundle” is merely some activity of the self, and not the self itself. The self could be both the active content of consciousness, and our storehouse of ideas and memories, and our capacities to act upon them, all of which have a persistence across time that some fleeting action only gives a glimpse of.

Mind Transfer For Fun and Profit

I tend to think that the psychological and physical theories of personal identity are both insufficient. There are cases where psychological continuity wouldn’t count as identity (say, we find a way to duplicate brains), and cases where physical continuity clearly fails (for example, most people would equate a complete brain-wipe with death.)

But if we assume that our theories are determinative for our own identity, we could do the following: we find a young, healthy physical continuity theorist and an elderly, unwell psychological continuity theorist, and offer them the following deal: the psychological continuity theorist gives all of his or her money to the physical theorist, and we then reprogram the physical theorist’s brain to be an exact match of the psychological theorist. The psych theorist then gets to live in the physical theorist’s body, at least on the psych theory, and the physical theorist gets a lot of money. Both would think of themselves as continuing to exist, so it’s a win-win.

Personal identity, the identity of a sculpture, animalism, psychologism, and necessary parts.


Suppose a famous statue, say, Michelangelo’s David, was in need of restoration. The marble under the base was rotting (let’s just assume marble can rot). So the restorers dig out the rotten section, a part that would be completely invisible, and find that it goes deep. They have to hollow out the legs and torso and pretty much the entire statue. They never touch the surface, and from the outside the statue looks exactly the same. All the marks of Michelangelo’s work are there, and every surface element is the way it is because Michelangelo sculpted it that way. But the inside is completely gone. To stabilize the statue they refill the inside with a powdered marble and some fine liquid adhesive, which sets, providing what is essentially a new marble interior that bonds perfectly with the shell of the statue. Though the surface layer is untouched, the vast majority of the statue’s mass has been replaced, but of course, it was mass that was never seen by viewers.

Is this the same statue?

Suppose instead that the surface of the statue is rotting. Restorers carefully, piece by piece, remove the surface, but only the surface layer (say, no more than 1cm of depth). They replace it with replica finished by contemporary restoration experts, who are, of course, highly trained sculptors. In the end, it would be very hard to tell the difference between the pre- and post-restoration statue. The great bulk of the statue, of course, is unaffected: it’s only the thin surface layer, the parts that Michelangelo touched, that are affected.

Is this the same statue?

The continuity of the statue in the first case is perhaps analogous to what psychological identity theorist, or those who hold that the person is the brain, would hold about persons. Though the vast majority of the matter is removed, the person or statue retains identity, because there’s a special, relatively small part, which carries what is essential to identity.

The continuity of the statue in the second case is perhaps analogous to what an animalist would hold: the majority of the mass of the statue is undisturbed, and the statue would be able to continue to support its own weight, just as the person’s body remains undisturbed, and is capable of carrying on basic functions, if the cerebellum were removed and replaced with a duplicate. The persistence of the major, structural elements is what’s important, not the small element that is commonly (though, according to the animalist, mistakenly) thought to maintain the identity of the statue or person.

My guess is that almost everyone would say that it is the same statue in case 1, because what makes it the David are the elements that Michelangelo worked on. So, again I’m guessing on general response, the convention concerning the meaning of “same statue” is probably tied into the marks made by the artist. In the second case, I think there’d be more disagreement. This would correspond to studies on what people think counts as same person; they generally think of persons as constituted by mental content.

One important thing to note: a poll is not the same as metaphysics, but a person is very different from, say, an electron. The term ‘person’ is the result of social agreement about language usage over many years. Persons were not discovered and discovered in the way electrons were, and what does and doesn’t count as a person or the same person is subject to a lot more force of convention than what does and doesn’t count as an electron. So we do need to be sensitive to common usage, because if we wind up with a version of ‘person’ that is strongly at odds with that usage, we may well no longer be talking about persons, but about some other thing that we have invented for the purpose of, say, a consistent philosophical position.

The necessity of identity and its reliance on connectedness

Persons across time could have identity, unity, or connectedness:

  1. Identity: Person at time T1 and person and time T1+n are the same person. They are identical.
  2. Unity: Person at time T1 and person and time T1+n re two parts of one larger cross-temporal entity. The two “time slices” are not identical to each other, but are component parts of one, four-dimensional thing.
  3. Connectedness: Person at time T1 and person and time T1+n have some other relation which connects them: they may share memories, or bodily parts, or be connected by a chain of overlapping memories, or overlapping bodily parts, or they may hold the same “office,” that is, they may hold the same place in social or political or legal relations. They are not strictly identical, but they may be the same person for specific purposes: for example, perhaps psychological and physical continuity would be sufficient for legal responsibility; or mere physical continuity would be sufficient for continued ownership of goods, etc.

On some level, 1 is impossible. Nothing has absolute sameness across time; the platinum-iridium kilogram bar, for example, seems to have grown lighter (or its duplicates grew heavier.) People under go much greater change than platinum-iridum bars. Absolutely strict identity won’t work for them, so we have to decide if personal identity is carried by some subset of the things that the person is made up of, or is, contra the strict notion of identity, amenable to some changes in virtual any part, etc.

The unity answer doesn’t really help, because it already assume that person at T1 and person at T1+n are slices of the same person, and that’s what we need to get at. That is: how do I know that these two person-slices are slices of the same person? Surely, even a four-dimensional person has conditions which he or she cannot survive, and must come to be and cease to be at various points in time. The rotting corpse of Johan is, for most purposes, not Johan. Nor are the various bits of matter, floating around in the early universe, which will eventually make up Johan’s body.

Connectedness seems to be the area of investigation for sameness of persons. What are the conditions of connection needed for a person to be the same person as something that exists at another time? This is, indeed, where most of the theories come down: animalism, physicalism, psychological theories, all say that some part of their preferred section of the person must be preserved, though by no means the entirety of that part. So no animalist claims that the entire body must be preserved; they focus on continuity conditions for living organisms, and must make some arbitrary choices for beginning and end points. Thus, Olson claims that a person is dead even if her brain is still functioning and we have some system of communicating with that brain (say, a neural implant hooked up to audio input and output systems that allow speech and hearing) if her body has died. So a brain transplant, on this account, is the end of a person. A sudden and complete memory wipe is probably the end of a person on psychological accounts, even if the body persists and can be rehabilitated.

The question then becomes: why are we asking about personal identity or survival? Is it to apportion blame, legal punishment, ownership of goods? To re-identify loved ones? To know if my memories are in fact my memories, and not the memories of some other that I’ve inherited?

Notably, when we do legally punish, under the vast majority of systems of laws we only punish people believed to be, in some important sense, identical to the person who committed the crime. I don’t punish a twin for her sister’s crime, for example. And we want to be our friend, the very person who has identity with the person we previously identified as our friend, not someone who merely looks and acts like him.

So it seems that, for some purposes, a kind of identity is called for, though it will not be strict identity. Strict identity may be, as David Shoemaker says, “the reddest of herrings.” But identity, more broadly construed, is central to our concerns.