[FRIAM] Trumps motives not judiciable because they are "in his head"

[David Eric Smith]

I’m glad to have these resources, particularly the lawfare breakdowns.

However, in this conversation I would like to see us separate the things we credit with reflecting on real ideas from patent political nonsense and bad faith.  Dershowitz exists to prove the maxim that there isn’t really any democratic robustness in the US legal system, and that in fact any outcome can be achieved through a parade of nonsense by whoever has the most money and power.  That is why he takes case after case that have no legal merits, to preen by showing that it is the singer — particularly the singer Dershowitz — entirely, and not at al the song.

The right wing of the senate is also a case study in how corruption works at the institutional level, and how systems like Venezuela develop in the stages before the society is in riots and the outside world starts to notice that they exist.  So what Dershowitz does in the senate is even more extravagant nonsense than what he would do in an actual court, to emphasize the fact that not only he, but they, achieve ends through manipulation of power without any role for principal.  

In contrast, when there is real law, and a good-faith effort to use law to create a fair playing field, there can be a good discussion of how legal precedent is the applied domain of psychology.  Then we can discuss the difference between German interpretations of the relative merits of punishment versus rehabilitation, and American positions on similar questions (perhaps more historically than in this particular distorted present).

Anyway, one more thing to feel sick about with an understanding that one has very little and limited agency in this big broken world,

Eric





> On Jan 31, 2020, at 4:36 AM, thompnickson2 at gmail.com wrote:
> 
> Hi everybody, 
>  
> I am often been hard pressed by members of the “home church” to supply examples of how locating motives “in the head” is not only a misdirection but actually a dangerous illusion.  I give you https://shows.acast.com/the-report/episodes/the-impeachment-day-7 <https://shows.acast.com/the-report/episodes/the-impeachment-day-7> which, at minute 7:40, contains an argument that Trump’s motives cannot be inferred from his behavior because motives are inherently subjective, “in the head” of the motivated person.   This, of course, contradicts long standing legal practice, where demonstrating motive from higher-order patterns in behavior (i.e., patterns distributed more broadly in time and space than in the moments surrounding the motivated act) is a necessary element in most criminal cases.  It is, for instance, the main element that distinguishes manslaughter from murder.   In fact, the whole range of offences resulting in death are distinguished by the degree to which the jury thinks the lethal act was “voluntary”.  
>  
> By the way, that link will serve to introduce you to the lawfare “reports <https://podcasts.apple.com/us/podcast/the-report/id1472798169>” which attempt to provide a neutral precis of the proceedings, day by day.  
>  
> Nick 
>  
> PS:  I just did a dive into the legal dictionary.  Interesting.  Apparently, the law makes a big distinction between motive <https://legal-dictionary.thefreedictionary.com/motivation>and intent <https://legal-dictionary.thefreedictionary.com/motivation>, the former being more like having a reason to commit a crime, the latter being more like setting about to commit the crime.  Interesting stuff, this law business  No wonder Oliver Wendell Holmes was a pragmatist.!
>  
> N
> Nicholas Thompson
> Emeritus Professor of Ethology and Psychology
> Clark University
> ThompNickSon2 at gmail.com <mailto:ThompNickSon2 at gmail.com>
> https://wordpress.clarku.edu/nthompson/ <https://wordpress.clarku.edu/nthompson/>
>  
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