What Constitutional Crisis?

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Even the middle-brow British press are now havering about a supposed ‘constitutional crisis’ in the UK.  The Speaker of the Commons has given notice that, if Theresa May attempts to bring her twice-rejected Brexit deal back for a third (or fourth…) vote, he will be forced to rule on whether that violates the established convention that Parliament may not be asked, in the same session, to vote again on a proposal it has already rejected.

This may be a crisis, but it is not a crisis in or caused by the constitutional order.  It is a political crisis of the government’s making.

How do these differ?  Almost any constitutional crisis brings a political crisis, but not every political crisis flows from a constitutional crisis.  It would be a constitutional crisis in the UK if the Queen refused to give royal assent to a bill that had passed Parliament, or if Scotland unilaterally declared independence, or if owing to austerity cuts the courts ceased to function.

It would be a political crisis if we left the EU without any deal providing for an orderly exit, or if border checkpoints were to be set up again in Northern Ireland, or if the National Health Service collapsed owing to immigration quotas.

In a non-constitutional crisis there can be profound social and economic dislocation, but if the constitution remains broadly effective and regulates the major political organs there is no constitutional crisis.   In the present case, the integrity of the UK constitution is not in doubt.  Just the opposite: a pre-existing political crisis—a failure of government—has been heightened by the Speaker signalling that he will, if needed, enforce one of the basic rules of the constitution.  Moreover, the government acknowledges that Parliament may not evade or abrogate his ruling except by lawful measures provided by the constitution itself.

Of course, no law or convention is black-or-white; they all have vague margins.   But there is no doubt that the government may not ram a rejected and unmodified bill through Parliament by bringing it back, week after week, hoping that intervening threats or bribes will eventually bend the house to its will.   In that scenario, votes in Parliament would not amount to decisions at all.  The rule exists precisely to ensure that does not happen, and it is one of the functions of the Speaker to apply the rule.

However, even in its core, one constitutional rule may conflict with another.  Sir Stephen Laws emphasizes such a conflict when he argues, for the conservative think-tank Policy Exchange, that the right of a government to get its way over money bills is also of great constitutional importance.  As indeed it is.  But that rule presupposes a government that can command a majority in Parliament.  To give absolute control over Parliament to a minority whose very survival is in doubt from week to week would be a grave constitutional error.

(Incidentally,  Policy Exchange has one of Britain’s very worst records for financial transparency, and it also funds the Judicial Power Project—a parliamentarist’s answer to the far-right Federalist Society in the US.  Actually, since Policy Exchange keeps its funders out of public view,  it may simply be a branch of the Federalist Society.  Or worse.  Charity Commissioners, please?)

Behind all this posturing about a ‘constitutional crisis’ is, of course, the fear that Brexit will be lost through delay.   There is rank hypocrisy here.  Those who say the referendum on leaving the EU must never be revisited, now say that a Parliamentary vote rejecting the Brexit plan—by the largest margin in modern history—must be revisited, and revisited, and revisited, until Parliament gives the answer that a weak and divided government wants to impose on an unwilling country.  To allow that really would be a constitutional crisis.

 

 

 

 

 

 

 

 

 

 

 

On Michael Jackson and Martin Heidegger

 

Michael Jackson had three qualities that would have made him comfortable with some members of the Roman Catholic hierarchy.  He loved an audience, he wore astonishing garments, and he pretended that young boys consented to be his lovers.

Martin Heidegger had three qualities that would have made him comfortable with some members of Alternative für Deutschland.  He loved his country, he had an astonishing way with the German language, and he pretended the Holocaust was not happening.

For work/life separatists what should engage our attention about Jackson and Heidegger is solely their work.  Yes, their lives were entangled with evil—and of course the work/life separatist concedes that merits a preface or a footnote–but no one interested in popular music of the last century can ignore Thriller and no one interested in post-Kantian German philosophy can ignore Being and Time, and that is what matters.

The separatist is correct to this extent: any suggestion that we should now stop listening to Jackson, or stop reading Heidegger, would be seriously wrong.  There are things of real value that we would lose.  Anyway, where would it stop?  Oscar Wilde may have been a brilliant writer and gay hero, but his rent-boys were boys.  Charles Maurras may have been a critic of ‘scientific racism’, but he was an enthusiast of state-sponsored anti-Semitism.   And exactly how old was Alcibiades during those early, flirty afternoons with Socrates?  And what exactly did the writer of Matthew’s gospel mean when he had the Jewish crowd chant, “His blood be on us and on our children!”

So you see the appeal of work/life separatism.

And yet:  We cannot rule out of hand the possibility that we will have a deeper understanding—musicological, not just historical—of Jackson’s work if we keep front and centre the fact that the loves in his lyrics may be pederastic.  We cannot dismiss the possibility that we only appreciate Heidegger’s disempowering metaphysics of ‘Being’ if we see it as a screen for contemptuous attitudes towards actual human beings.  But note: whatever merit there may be in such conjectures, it argues, not for erasing the works from the canon or boycotting them, but for keeping the lives conjoined to the works.  It argues against separatism, but in favour of inclusion.

However, another point also needs to be made.  Jackson and Heidegger are dead.  Jackson is not engaging in the orgy of boy-rape sheltered by misogynist religions.  Heidegger is not torching synagogues or introducing the Führerprinzip into university governance. (Though plenty of non-Nazi Vice-chancellors of English universities appear to think it has attractions.)

We would have reason to feel differently if the rapist was not a dead singer but our brilliant, energetic colleague down the hall; or if the anti-Semite were the smiling, emollient leader of our laboratory.  In such cases we have a positive duty to speak up and to speak out.   Academic freedom and tenure, where they exist, are not only there to ensure we can flog some abstruse doctrine hardly anyone cares about. They are also there to ensure we can do our other duties to the university and to our students.  In most cases, we will also have a reason (though not a duty) to deny the rapist or racist what JS Mill called our ‘good offices’—our collaboration, our collegiality, our company.

But what about the works that make them famous, or the lectures that bring them prizes?  Is their value somehow diminished by the rape, or tainted by the racism?   In most cases, no.  Nonetheless, while the rapists and racists are still alive, it is difficult for us to honour the work without also, to some extent, honouring the worker.   So there are matters of moral consequence and proportion to attend to.  And we can always return to give the work its due when the worker, like Jackson and Heidegger, is no longer in any position to derive influence from the honour.

Great artists and great thinkers often crave immortality through their works.  Some of them believe their works will bestow it.  They can hardly complain if we decide to wait before kick-starting their immortal lives.

 

 

 

 

 

 

 

 

 

 

My University is not a Platform

The current UK government found a few supporters to affirm that a primary function of England’s universities is to provide a platform for free speech.  This is a radical suggestion.  It is undeniably one of the functions of the public realm—of news platforms, of the media, of public space, of Hyde Park Corner—to provide a platform for any and all comers, provided only their speech is lawful.  These are the indigenous territories of flat-earthers and anti-vaxxers.  But until recently, no one ever thought a function of universities is to provide a platform for open debate, however ill-informed, or however inimical to teaching and research.  Nor did they think one could circumvent the main purpose of a university by an invitation from a student group.

Universities have several functions, but the primary ones are the search for and transmission of knowledge, and the exploration and preservation of culture.  As every reader of JS Mill knows, these functions are cramped without freedom of speech. But no Millian ever imagined that a Geology department should hire someone who thinks the Earth is 4004 years old, or that a Psychology department should include those who think a homosexual orientation is a ‘disease’ that it might be ‘cured’ by ‘conversion therapy’.  People who believe such things are epistemic failures, and one function of universities is to keep them well away from our core business.  Of course, as Mill also argued, their views should nonetheless  be lawful: their expression—somewhere or other—keeps us all on our toes.  But Mill did not think, and never said, that their place is in universities.  Just the contrary.  Assuming a measure of expertise in universities, Mill favoured plural voting—a qualified elector could vote, not only for a member representing the constitutency, but also for one representing the university.  (To be clear: I am not in favour of this.)

Admittedly, true cranks are now rare in universities. But there are a few faculty, mostly relics or showmen, kept on epistemic life-support by students too embarrassed to admit they share their views or too timid to challenge them.   Still, university students are adults, and open to being judged by the company they keep.  But I sometimes wonder—yes, this is paternalistic—whether those who choose to study with anti-vaxxers, homophobes, climate-change-deniers etc. know what they are getting in for, and how they will be judged by the wider world upon graduation.  Is that unfair?  Many German university students who were suck-ups, or simply silent, in the company of  Nazi professors, had to live down the evil they tolerated. Not all of them were themselves anti-Semites.

What of autonomous student organizations? They need not, and often do not, share a university’s core functions.  They may revel in foolishness and incompetence, if they wish. The Oxford Union, contrary to what many think, is no part of Oxford University.  It is a private club that sometimes gets its kicks, and its clicks, by inviting ludicrous, incompetent, narcissists to ‘debate’ serious issues.  Being sited at Oxford, it tends to get press. The  Union’s invitations have often been discouraging—a terrible waste for such a distinguished club. But I am not a member of the Union; so its doings are of no concern to me.  On the other hand, the Apollo University Lodge (of which I am a member) is Oxford’s 200-year-old Freemasons’ Lodge.  (It counted Oscar Wilde among its more illustrious members.)   Apollo, too, is just a private club.  But as a member I feel a personal obligation to ensure that idiots, homophobes, and racists are neither members nor speakers. Interestingly, at Apollo, in contrast to the Union, this has rarely been an issue.  But then Freemasonry defends Enlightenment values, and is universal in aspiration.   No wonder the Nazis, and Stalin, repressed it.

Professor Finnis and Academic Freedom

My distinguished former colleague, brilliant jurist, reactionary Catholic ideologue, and career homophobe, John Finnis, is once again attracting the attention of Oxford’s law students.  This comes in waves.  In the past, it was triggered by things like John’s attempts to defend frightening moral views, or by his legal interventions on the side of prejudice and superstition, or by his disowning Oxford’s standards of academic integrity (when breached by students who share his views).  What could have triggered the ludicrous new petition to have him ‘removed’ from Oxford?

I’ve been away on sick leave, so I may have missed something.  But reliable sources tell me there has been no fresh controversy.   Of course, each year there is a fresh group of students to be shocked by Finnis-type views.  That encounter can be like reading Hastings Rashdall for the first time. (Rashdall argued that the well-being of the ‘higher races’ matters more than the well-being of the ‘lower races’. I was first made to read Rashdall in a tutorial at Oxford.)  Actually, it is more like reading Rashdall and then, just when you stop trembling, walking into your seminar and there is Professor Rashdall! And now it’s your turn to engage in ‘more speech’.

Still, the petition to ‘remove’ Finnis from Oxford is seriously wrong in principle and mistaken in fact.  Principle: To fire someone from an academic post solely on the basis that he defends false or repugnant views is a clear violation of academic freedom.  As my friend Brian Leiter rightly says, it is pretty embarrassing to see Oxford Law students signing up for this.  (I’m hoping none of the signatories was in my classes on freedom of speech.)  Fact: one cannot ‘remove’ someone from a post he does not hold.  John Finnis is long retired from Oxford Law, though it is true that he is still occasionally invited to teach seminars, and also to participate in hiring decisions.  (At Oxford, ‘compulsory retirement’ is fully compulsory only for those who lack friends.)

But is academic freedom the only thing at stake here?  Consider whether, when Hastings Rashdall retired from New College, Oxford, they should have gone looking for a replacement to defend his articulate, philosophical form of racism, or whether they should have kept Rashdall on an occasional basis, to ensure that students of the ‘lower races’ would have some controversial views to take on.  (It was 1910—philosophical racism was still a thing.)  If such a case could be made, it would have to appeal to something like intellectual diversity or pluralism. (‘We need someone to stand up for racism around here!’) But it couldn’t be advanced on grounds of academic freedom:  that protects those who have an academic role, it doesn’t tell us who should have an academic role in the first place.  If there is an objection to not replacing (or re-hiring) racists or sexists or homophobes, it is not an objection from academic freedom.

Now, back to the future:  Oxford’s official response to the Finnis petition was as distressing as the petition itself, though for different reasons.  (I have never understood why, but this particular issue is something our administration gets wrong, time after time.)   The University says, ‘We are clear we do not tolerate any form of harassment of individuals on any grounds, including sexual orientation. Equally, the University’s harassment policy also protects academic freedom of speech and is clear that vigorous academic debate does not amount to harassment when conducted respectfully and without violating the dignity of others.’

Fair enough.  But the petition does not allege that John Finnis engaged in ‘harassment of individuals’ and, myself, I would consider any such allegation incredible. John is a kind teacher, a generous colleague, and a gracious man. However, our student lawyers do understand the University’s obligations under the Equality Act better than the University does.  The University has an obligation not only to eliminate individual discrimination against, and victimisation or harassment of, gay students, but also a positive duty to advance their equality of opportunity and to foster good relations between gay people and straight people at the University.  In its garbled (and partly unlawful) proposals, the petition fairly demands that the University take more seriously its positive equality duties, at least by clarifying how it sees those as relating to academic freedom.

We never run out of opportunities not to discriminate or not to harass, but serious opportunities to advance equality or foster good relations come up only now and then, and only in certain contexts.  In a University, retirements are among those contexts.  Every retirement frees up resources to do new and, if we can, better things.  Instead of replying in its familiar, defensive, way, Oxford should have explained to the petitioners all the ways it has used things like Professor Finnis’s retirement to advance the equality of gay students.  But perhaps that list was too short to merit mention?

 

 

 

 

 

 

The Will of the People

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In the previous post, I suggested that there is some truth in populism.   I proposed that it specifies a certain end for government, namely, that the well being of the people ought to be the ‘supreme law’ (as Cicero put it).  A number of correspondents remind me–correctly–that Cicero was not all that keen on the populists of his day.   Others write to ask how a liberal like me could possibly endorse such a view (forgetting, I suppose, that Locke chose Cicero’s tag as the epigraph for the Two Treatises).

It is unlikely that any general purpose or aim will suffice to pin down a specific political theory or, if you prefer, ideology.   Utilitarians can subscribe to the populist aim, under a certain interpretation of ‘well being’.   So can rights-based liberals, under a certain theory about rights and a theory about the division of labour among states.   Is this worrying?

I think that when we are trying to understand populism as a possible–and possibly attractive–political view we need to add to its characteristic end at least one other feature, a claim not about proper ends but about legitimate means.   Populists think (or should think) that the most fundamental political choices facing a state ought to be subject to the will of the people, in the sense that they should be responsible to the people.  Again, this is an ideal, not a description of our current mess.  (And that’s another reason that the journalists’ pejorative ‘populism’ is a such poor guide for constitutional theory.  The pejorative use just sweeps the messes into one big heap, then tells us to bin the lot.)

But now populism is starting to sound a lot like democracy.   Well, it is something like democracy;  we might say, populism is democracy for les jusqu’au-boutistes.  The point about the proper ends of government applies also to its proper means.   A democrat, regardless of how much popular input he favours, is bound to stand firm at one  point.  It is not for the people to undo or restrict democracy (in the specified form).  If, in a free and fair referendum, the people vote by a clear majority to establish a theocracy, then the populist I have in mind will hold that that is how the constitution should run.  It is not for the losing minority, or the economic elite, or powerful secular states, to prevent that people from living under the sort of constitution they chose.  Of course, opponents of theocracy are still entitled to denounce what the people have chosen, to argue against it, and so forth.  Nonetheless, at the end of the day the people are to be sovereign.  A people can be sovereign without governing, and they can govern without being sovereign.  That is why a commitment to popular sovereignty sits uneasily with a commitment to democracy.  Only under certain conditions are they mutually supporting, and those conditions are not guaranteed (and, historically, are not all that common).

I have said that a populist thinks that the most fundamental political choices should be made by means responsible to the people.  This allows for bolt-ons.  We need to have a separate argument about whether choices that are morally fundamental –say, policies about abortion or punishment–ought to be subject to popular control, or whether popular sovereignty applies only to choices that are procedurally or institutionally ‘fundamental’ (e.g., voting systems, constitutions and their amendment procedures, etc.).  But the need for bolt-ons is not an objection to a theory.  Just the contrary: we should be wary of anyone who purports to ‘derive’ everything in political morality–from the ends of government, to the limits of private property, right down to the role of judicial review– from a couple of diaphanous ideas like ‘reason’ or ‘freedom’.  We should expect to see different sorts of populism, just as we see different sorts of conservatism, and different sorts of libertarianism.  And should expect to come to different views about their cogency, according to our views about the bolt-ons.  That is how serious political philosophy works.

The idea that fundamental political choices ought to be subject to the control of people–the very same people whose well being figures in specifying the aim of a populist government–is thus flexible.  But it is far from empty.   Plato would have hated it for the same reason he hated democracy:  what do the untrained ‘people’ know about anything?   Bad enough that, say, a bricklayer should get to vote on which experts should determine monetary policy; but a populist is willing to let him vote also on the voting system, and even on constitutional rules!  Some liberals will hate it, for they will see that by letting the people shape the constitution we will inevitably be letting them shape, not only what rights we have, but how we determine and enforce what rights we have.   And some conservatives will hate it.   Like Dicey, they will say that the only ‘will of the people’ the courts can recognize are Acts of Parliament; or that populist politics are likely to be turbulent, and nothing frightens a million pounds as much as uncertainty.

That so many find so much to object to in populism as I’ve defined it is good evidence that is far from being an empty doctrine.   How it measures up against its competitors is a matter for later posts.

The Truth in Populism

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The Guardian is doing terrific work on the spread of far-right, xenophobic, racist, and mercantilist politics in Europe and the US.   It is doing it, however, under the misleading label of ‘the new populism’.  That is lazy.   If we explored the nature and sources of the grotesque inequality and greed in capitalist societies under the heading of a ‘new’ (or even ‘classical’) ‘liberalism’, examining only the ideas and followers of Herbert Spencer, Milton Friedman or (for a laugh) Ayn Rand, we would quickly sense that something had gone awry.  Sure, those writers do  mention ‘liberty’.  But that is no better reason for thinking they are ‘liberals’ than it is to think that, because they mention ‘conservation,’ the Friends of the Earth are conservatives.   It is long past time for people who can read and write to ‘use their words’.  Let’s call things what they are.

This isn’t just a quibble.  ‘Populism’ sanitizes what is, in much of Eastern Europe, neo-fascism, and, in large swathes the the US, anti-black and anti-Latino racism.  It homogenizes phenomena that differ, historically and morally.  Yet it isn’t hard to find serious paradigms of populist thought and politics:  Rousseau, Marx, the Chartists, the People’s Party, and so forth.  Admittedly, they expressed other ideologies as well:  romanticism, determinism, democracy, agrarianism etc.  But if you want to know what populism is, or what its appeal it might be–or for that matter, what its risks are–then this is where you need to look.

Actually, you could start earlier.  One reasonable definition of populism is Cicero’s: ‘Salus populi suprema lex esto’: The well-being of the people ought to be the supreme law.  Here is how I think we should best understand that:

(1)  Populism is a claim about what ought to be supreme law.  We can think of ‘supreme law’ as something like the constitution, or –better– the fundamental order underlying the constitution.  It is not a claim about tariffs, trade, or immigration except to the extent that these bear on the supreme principle.   Populism casts doubt on the idea that our supreme law ought to be the will of our ancestors, or our technocratic rulers, or our TV stars.  Populism respects democracy–but only to the extent that democracy is a system that serves the well being of the people.  (If everyone votes for a theocracy, the democrat is bound to reject their unanimous view; the populist may try to live with it.)

(2)  Populism is a political doctrine that has at its centre well-beingThis idea is capacious.  It means human welfare, flourishing;  perhaps even the perfection of human capacities and capabilities.  Maybe that sounds banal.  Doesn’t everyone think politics is about human welfare?  Readers of contemporary political philosophy know that it is not banal.  Some think the leading ideal for law and government shouldn’t be human well being, but something more pure and abstract, something that may or may not make anyone better off, for example: respecting the will of the gods, realizing ‘the right’, embodying ‘legality’ and so on.  So many words.   Yet they share one destructive idea:  the actual well being of actual people is of significance only to the extent that it serves some other ideal.  Do people have safe homes? A job?  Decent health care? Education?  A private place to shit or piss?  The anti-populist thinks of such things as of ‘merely contingent’, ‘conditional’, value.  What matters to him is something higher–or anyway different—than the plain reality of ordinary people’s lives.

(3)  Populism takes as its ‘supreme’ law the well being of the people.  It is at this point that the radical edge of populism is often dulled by lazy theorists or motivated ideologues.  Here, I can only be dogmatic : (3a)  ‘The people’ means all the people in a political jurisdiction, or at any rate all the people who normally make their lives there.  It is thus an anti-racist and anti-nationalist doctrine.  (3b) ‘The people’ does not itself explain or justify the boundaries of a political jurisdiction.  Nor it does not pretend to.  (3c) To affirm the supremacy of the well being of the people is not to disallow or negate the idea that the well being of people in other jurisdictions–foreigners–is morally important.  Just the contrary: a government should serve the well being of foreigners at least when doing so will (indirectly) serve the interests of its people.  In a complex, interconnected world, governments concerned to advance the well being of their (own) people ought to be very anxiously concerned about the well being of other peoples.  Moreover, the existence of a supreme principle (eg ‘parents ought to secure the welfare of their own children’) is compatible with, and may require, the existence of other, demanding, subordinate principles (eg ‘when the interests of your own children aren’t at stake, you should work strenuously to secure the interests of other people’s children’).

These remarks are nothing like an adequate defense of populism.  They are hardly a beginning  (I will offer some more later. ) But, unlike much of the journalistic and academic chatter in which we are drowning, it identifies populism with an intelligible ideal rather than an abusive epithet.   Moreover, it is an ideal that has serious antecedents in political philosophy and is not obviously, or absurdly, wrong.   In fact, I think that the sort of populism I have in mind  here is is not only defensible; I think it is more attractive than many of its competitors, including democracy.  But more on that later.

 

Autonomy and Identity

Sequoya Yiaueki was raised as a Native American in the US–and often treated and humiliated as a Native American—only to find that, apart from a minute fraction of DNA inherited from his mother, he is nothing of the kind.  Some family history together with a home DNA test kit showed that his grandfather was a Chinese immigrant to Philadelphia.  The nice mix of genetic material he inherited contributed to his looking like a handsome aboriginal man, an appearance that was then certified by family legend and social hostility.  But it was all false.  That was not who he ‘really’ was.

Why do I say ‘false’?  For one thing, because Yiaueki does.  He  feels his ‘Indian’ identity was ‘pulled out from under him’; he can no longer live a lie.  Many of us know stories of this sort.  I have a friend who, only in his fifties, discovered that he was adopted, and then had to go through a difficult assessment of his feelings towards the family that raised him, lovingly, but in a house of secrets and deceptions.  Another friend, a distinguished lawyer, transitioned in his forties and now lives as a woman.  Unlike many, she had  good support from her family and law firm.  Still, she now feels, sadly, that the earlier part of her life was somehow false.  And many of us in what one might, in an innocently homogenizing way, call the self-aware-non-straight-population, remember a time when that fact about our selves came as a challenge to the people we took ourselves to be.

These cases suggest something important about the value of personal autonomy.   We often defend it, and the political and social liberties that secure it, along the lines  J.S. Mill and John Rawls did:  its value lies in creating lives for ourselves, in making up identities, in choosing and pursuing ‘conceptions of the good’.  But then the cases mentioned above seem to reduce the importance of autonomy.  These are not cases about people choosing who or what to be; they are cases of people finding out who they already are.

To some, that shows that a liberal politics oriented to personal autonomy is wrong or shallow.  Many philosophers back in the 1980s were tempted by that conclusion.  Important features of our lives that orient us in the world and affect the way others respond to us are not chosen, created, or made-up; they are part of the context for any other choices we make.  People do not– cannot– choose to be indigenous, or biologically related to the parents who raised them, or gay.  That correct conclusion prompted a lot of loose talk about the importance of ‘community’ and ‘authenticity’.  (And we are are starting to hear that all over again, with complaints about rootless ‘citizens of nowhere’.)

The talk was loose because, even in the face of obdurate facts about ourselves, choices do remain.  For one thing, we can and often must choose what to do about those facts.  We can acknowledge them or deny them; we can celebrate them or regret them; we can make them a more or less central part of our identity.   So already there is a role for autonomy.   And it is an important role.  What we do about, or with, the people we find ourselves to be is often of enormous importance to our life prospects.   Even in 2018, and even in ‘liberal’ western countries, the decision whether to come out of the closet can be dangerous for young people–and so can the decision to remain there.

But that reveals a second aspect to autonomy and the rights that secure it.  It makes no sense to think about people ‘choosing’ to be indigenous, or biologically related, or gay (or black, or disabled…) but it is certainly  both intelligible and important for people to want the freedom to discover whether they are any of these things.   That can matter for exogenous reasons: for instance, knowing your genetic inheritance may be important to knowing your risks of a certain illness.  More often, it is important for endogenous, psychological reasons.  Most of us do not wish to ‘live a lie’.  Sequoya Yiaueki had no desire to live ‘as if’ he were Native American once he found out that he was not.   Of course, not everything need or should change in the face of  a momentous discovery, but to simply go on as before is often impossible.  This shows that  we have, over a certain range, a powerful interest in knowing who we really are.  And that puts a different gloss on many of the familiar liberal freedoms–freedom of speech, thought, inquiry, association etc.– they serve self-discovery as much as self-creation.

It is a matter of philosophical and political controversy whether a man can ‘choose’ to be or become a woman. (No one denies that men can choose to live as if they are women; and no liberal will deny their right to do so.)  But even for the skeptics, it should not be a matter of controversy that the freedom to find out whether one is a man or a woman (or a male or a female or neither) is of independent value.  As we blunder through these complex debates, I notice that many who are hostile to transgender people are also hostile to anyone having the freedom to explore or test their gender identity.  Another example.  In Russia, in Ukraine, and among decadent religions in the US and UK, there is not only overt hostility to gay people, but also hostility to the freedoms of expression and association that help young people find our whether they are gay.  (Here, that hostility expresses itself in arguments about sex education or pornography–both of which can lead children to discoveries about themselves that their parents would rather not be made.)

Personal autonomy is valuable for many reasons: some of them do bear, in the way Mill stressed, on our capacity for and success at self-creation;  but others bear even on those aspects of ourselves that lie beyond choice.  So we are not going to understand the importance of autonomy if we reduce it to debates about whether, or how far, some aspect of our identity is a matter of one’s own say-so.  Freedom is more valuable than that.

 

 

Self-help and Free Speech

It is important that speech (along with written communication and artistic expression) be fairly free.  By ‘free’ I mean at least from governmental and other quasi-official constraint, and by ‘fairly’ I mean at least to the extent that it does not constitute fraud, defamation, incitement, group hatred, and the like.  Why? For a number of overlapping reasons that do not add up to anything worth calling a ‘theory’ of free speech.  Speech should be free because: it helps in the quest for reliable knowledge, because it  supports good government, and because it serves individual development and autonomy.   Also (marginally) relevant is the fact that speech that is forced, whether a confession extorted by threat, or a teleprompted lie bought with bribes, tends not to be very interesting as speech.   Together, such considerations support the ‘free speech principle’, a principle that we invoke and contest as such, as a principle of political morality.

Most of the fair and feasible means of protecting speech are already well known.   But once again, there is nothing here worth calling  a ‘theory’.  In one society, a judicially enforced bill of rights may prove vital, in another plural and competing media may be more important, in a third, the willingness of intermediary institutions (professions, churches, universities etc.) to silence the silencers may be key.  And always and everywhere political culture is hugely important.  As we see now in the US, in Poland, and in Hungary, when important political actors, including  senior judges, will not or cannot make good faith efforts to protect speech,  and instead use the principle merely for ideological money-laundering, set to whatever spin cycle their masters demand, no institutional remedies can be counted on to improve things.

But what about self-help?  Two versions of this idea are worth considering.  The first is a matter of hardening one’s defenses.  Along with the Stoics and Jesus, the Buddha says that, even when subject to abuse, we should often turn the other cheek.  We read in the Dhammapada, ‘As an elephant in battle bears the arrow shot from a bow; I will endure insult; For many people have poor self-control.’  Getting angry will often make you unhappy; trying to get even will keep you very busy.   Of course, none of these texts or teachers intend that we should put up with anything and everything.   But before returning fire, it is worth at least considering whether something is an offense against us or is merely offensive to us; it is worth learning the difference between something that is genuinely harmful to individuals or groups, and something that is hurtful to them.  When silencers learn that the elephant can bear the arrow, perhaps they will aim elsewhere or, if we get lucky, lay down arms and proceed by other means.

The other aspect of self-help is more complex.   To silence speakers one needs to find the target.  So it is tempting to think that speech must be more free when speakers are harder to find, for instance, when they are anonymous.   Especially in social media and the rest of the online world, anonymous comment is the norm.   Perhaps some people think of Twitter as the acme of free expression.   But Twitter should give us pause.  What better example of the Buddha’s glum warning, that ‘Many people have poor self-control’?   The availability, and scalability, of  anonymous comment does allow people otherwise at risk of being silenced to get their message out.  But anonymity also weaponizes poor self-control: fraud, incitement, hatred, and defamation–to say nothing of brutality, self-importance, and prideful ignorance– are everywhere that anonymous comment is standard, and it is not clear that what we innocently call the online ‘platforms’ have the means, let alone the will, to cure this.

I’m of two minds, then, when I read that my distinguished colleague Jeff McMahan plans to establish an online Journal of Controversial Ideas where anonymous authors can boldly set out their conjectures and refutations without fear (and, for that matter, also without favour–I can’t see the UK government rewarding anonymous research.)   What then is to stop the JCI becoming a high-brow, polite, version of Twitter: poor self-control expressed in sentential calculus, or blind hatreds ‘proved’ by transcendental arguments or pseudo-Darwinian fairy-tales?  The answer seems to be: peer review, up to the usual scholarly standards.   But we’ve  seen reason to worry about those standards.   Moreover, if the authors are anonymous, how can we know whether the editors are publishing only their students, colleagues, or cronies?  What if they are silencing  people they think we’ve all heard enough of?   And if that is what they are doing, the editors may be engaged in local, mini-, violations of free speech. Of course this is not comparable to governments prohibiting sex-education, or requesting teachers to report on whether and how they are teaching about Brexit.  But it is the kind of thing that the government thinks is wrong with universities.  In my own field, one of the best journals mostly publishes work by: those who have already published in that journal, those who were taught by those who have already published in that journal, those who have slept with anyone in the first two groups, and by members of the editorial board.  (Some of this work is excellent, by the way.)  Moreover, if someone wants to present in academic dress an ‘argument’ that homosexuality is an ‘intrinsic moral disorder’, or that the gender pay-gap expresses women’s ‘choices’, I think it would be decent of them to actually own the argument.

So I’m left with reservations.   I also confess to wondering what the problem in universities actually is that it calls for anonymous journals.  Unlike Jeff  (and unlike our current government), I do not see a general, serious threat to free speech in our universities, though I agree that it is the case in some departments and perhaps in a few institutions.  Nor do I accept his observation that, ‘The threats from outside the university tend to be more from the right. The threats to free speech and academic freedom that come from within the university tend to be more from the left.’  The serious risks to free speech in universities are nearly all from the right.  Since Jeff and I teach at the same University, and since I know we share roughly the same concepts of ‘right’ and ‘left’, Jeff must have a different idea than I do of threats ‘from within the university.’  He must be thinking of the fairly powerless, if noisy, student groups, and of invitations denied people who have no right to our platforms in the first place.   I am thinking of senior administrators, of fundraisers, and of those who manage the university’s real property.  These people have real power, and everywhere I have worked some of them have not been afraid to use it, even if doing so leads to clear violations of free speech (and of academic freedom).

 

 

 

An invitation to evil

People with shit for brains have invited Stephen Bannon–the loathsome, racist, nitwit—to ‘debate’ David Frum in Toronto, at a regular public gig called the ‘Munk Debates’:  a   spectacle supported by the legacy of Hungarian-Jewish mogul Peter Munk, whose charitable ventures include a very distinguished cardiac centre in a Toronto hospital, and the less distinguished Munk School of Global Affairs at one of Toronto’s universities.

I’ve no idea what the Munk family thinks of this warm welcome to the nativist and anti-Semitic Bannon, coming as it does on the heels of the massacre of Jews in a Pittsburgh synagogue by a Trumpite-Bannonesque Neo-fascist.  Maybe nothing.  In a way, I get that.  Ordinarily, we want the rich to endow good causes and then back off.   So maybe the Munks are all cool with this.   Still, I find it hard to believe that there isn’t a Munk or two vomiting in his bathroom, or locked in her bedroom, having panic attacks.   I mean, we aren’t fooling around here:  look at Brazil, Poland, and Hungary.  Or, if you can bear it, glance at the reflection in the mirror, at the United States.  These are evil people.

I am known (still, I think), as a kind of free speech fundamentalist.  I’ve defended all sorts of ‘bad speech’, including wicked pornography;  and I continue to do so.  So as to avoid any doubt let me affirm: it would be wrong–though also  unnecessary– for the Ontario or Canadian governments to ‘ban’ Bannon.  But this remark comes far too late in the discussion.  What on earth were people–one of them an academic–doing inviting Bannon in the first place?   Are Canadians unfamiliar with his line of attack on minorities? Has Bannon been cheated out of every platform? Is he silenced?  Is he the best, most intelligent, spokesperson for racial-nationalist-pseudopopulism?   And what of Frum, the smarter, articulate, reformed defender of war criminals?  Is Frum the best, most intelligent, spokesperson for a moderate, ‘liberal’, conservatism?  This is incredible, in a cosmopolitan city whose residents include Joe Carens,  Arthur Ripstein, Allen Hutchinson– even the tragi-comic Jordan Peterson.   This was all wrong, from the get-go.  Someone should be fired.

It is tempting to say that none of this matters now:  few real people can afford the absurd ticket prices for the Munk Spectacles, and every else can predict, line for line, the ‘debate’.  But that would be hasty.   In the past, these have been broadcast on CBC and repeated elsewhere.  That gives the debates–and is intended to give the debates–a kind of legitimacy.  It is the time for that to stop.  If the vile spew is regurgitated once again by Canadian media, it will sink not only the Debates, but also the CBC.  And if that doesn’t matter to you, at least have some sympathy for hapless students (and faculty) at the ‘Munk School’–the ‘Bannon School’ as it may well become.  Sure, it’s only a homonym; but don’t believe for five minutes that these Munk ‘Debates’ will not leak their stain on reputation of students and staff of the Munk ‘School’.  After all, it was one of the Munk faculty who helped made this happen,

Freedom of speech is the freedom to speak (short of incitement, fraud, and hatred), when one is otherwise entitled to speak.   Bannon and Frum are not otherwise entitled to this platform.  The appalling invitation was, and is, an utter disgrace. It shames the Munk foundation; it also shames the city of Toronto.

Oxford needs quotas

I’m on sick leave, and so missing the delicious pleasures of Schadenfreude.   My colleagues will shortly begin interviewing teenagers to decide who should get one of the  few places to study law here at Oxford.  I say ‘Schadenfreude’ because, owing to seniority and other things, the closest I ever get to undergraduate admissions these days is dining with colleagues who, over claret at High Table, moan about what an awful job theirs is: having to choose which students they would quite like to teach, and  which ones are then most likely to go to careers at the Bar or in England’s judiciary.

My colleagues mean well.  Most of them mean better than I did when I was charged with selecting England’s elite-to-come, years ago.   There is now more centralization and standardization of interviewing than when I did it.  There is better training;  almost everyone is alert to  the possibility of unconscious bias.  (Having completed their online training, none of my colleagues is conscious of any unconscious bias on their own part.)  There is better institutional outreach, and more evidence that the senior administration are serious about these issues.  There has been real, non-negligible, improvement.

Still: however you slice or dice it, year on year, in subject after subject, Oxford admits a class of undergraduates who not only fail to mirror–even roughly–the relevant population in their age cohort; they look like an entirely different species.  Apart from sex, Oxford (and Cambridge) have made too little progress in admitting disadvantaged groups. The facts are not in serious doubt.  We debate only responsibility and remedies.

Our responsibility–setting aside our inefficient and ineffective system of interviews– -is limited.  This is mostly not our fault.   But we do want to teach in a very special way.  In some subjects, we want to teach in a class size of two or three (no; you did not misread), and so we select students who, we think, will flourish in the unique way we intend to teach.  Of course we know there are other ways to teach undergraduates.  After all, Princeton, Yale, and Harvard all seem to turn out brilliant graduates (and even to replenish the US class system) without anything like our commitment of resources.   I’ve taught in both systems, and I know that, for the faculty, it is more fun and more illuminating to teach students in pairs than in scores.  But it has been a long time since Oxford (or Cambridge) has seriously examined the tutorial model,  though I think the Equality Act probably requires us to do so.  So some share of the blame is ours.

What is manifestly not our fault is the huge disproportion of good applicants who were privately educated–pupils whose parents could give them not only the social capital, but also the cold cash, to be educated in private schools that prepare pupils well for how Oxford has decided to teach.  This state of affairs is not unique.  In most capitalist societies, such advantages can be purchased either directly, by paying school fees, or indirectly, by buying a house in the catchment area of an excellent state school.  England is unique only in how pervasive, overt, and toxic the transaction is.  There is a nice philosophical question whether it is more opprobrious to  buy advantage on the open market or to buy it as a foreseen, welcome, but strictly unintended, consequence of one’s housing choices.  (And these are, for some people, real choices: my own parents gave up a lot of personal pleasures to buy a house in an area where I was likely to get the sort of education that would prepare me for the right sort of university.  Yet being on the (far) left, they would never have considered paying school fees.)

But the fact that something is not Oxford’s fault, in the sense that we are not morally or politically responsible for causing it in the first place, does not show that we are blameless when we have the power to change it yet decline to do so. I think that is our actual position.  We could quickly improve things with quotas:

I propose that Oxford (and Cambridge) should require the over-representation of privately educated undergraduates stay below 300%, which quota should be reassessed every 10 years.

You may be thinking that a 300% over-representation of any social group is already outrageous.  Maybe.  But depending on how one counts it, the current over-representation of private-school students at Oxford is around 600%.   So we could make a huge reduction in offers to the privileged and still leave them with triple what they would be entitled to under mirror-representation.   That would be a lot easier than expanding the size of the university, or spending more on ‘outreach’ to attract new applicants who we might still reject.

Or you may be thinking that my proposal would be discriminatory.  In English law anyway, it would not.  ‘Wealth and status‘ are not ‘protected characteristics’ under  discrimination law.  There are many good reasons we should not set caps on the number of Jewish or Asian students we admit.  But these do not apply to those elevated by economic and social privilege alone, and there is no solid evidence to show that a cap on the (relatively) rich would be indirect discrimination against one of our protected groups.  In practice, all this means is that some children of the privileged will not make the cut at Oxford or Cambridge, but will instead get accepted at one of England’s other, still excellent, universities.

But maybe you are thinking that this would violate a moral norm: ‘each person should be treated as an individual, on her own merits, and not just as a member of some group or other!’  (Myself, I’d dread being treated on someone’s view of my ‘merits’.)   But if that norm is sound, it would already require a huge change in our admissions standards.  We do not now treat the hundreds of applicants ‘each on her own merits’.  Each is treated as a member of a group:  the group who got three A’s at A-level, or the group who scored high on the LNAT,  or the  group that impressed the interviewer, or the group that came from a school we know and respect.   The fantasy that our existing system is attuned to individual merits is laughable.  (And adding ‘contextual’ data–‘he grew up in a rough neighborhood’–is just another form of group-based prediction.)

So here’s an idea.  Let’s experiment.  Let’s set a 300%–or, if you like, 400%–cap on the over-representation of the over-privileged at Oxford.  Without expanding enrollment, that will make lots of space for other good students.  Then let’s see how that works out for us, and for the legal profession in England.  This would, I admit, be a big change.  So I suppose we will have to confront the Ultimate Objection:

‘How many Oxford dons does it take to change a light-bulb?’

‘What do you mean, “CHANGE”???’