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”???’

Self-Identification, Sex, and Gender

The UK House of Commons Report Report on Transgender Equality was needed, and overdue, and I hope that at least some of its recommendations find their way into law.  There is no doubt that, in the UK as elsewhere, trans people are routinely humiliated, abused, and discriminated against–not only by ‘usual suspects’ (the far right, decadent religions, and men who pathetically cling to the status that gender gives them).  They also suffer at the hands of those who are, or  say they are, here to help: in healthcare, in education, and in the legal system.

At the same time, the Report tries to do too much, on the basis of advice that is too narrow, and on a research foundation that is far too thin.  Here are some questions that need to be at least confronted, if not answered, ahead of any legislation.

  1.  We need to get a lot clearer, at least in medicine and law, about what ‘sex’ and ‘gender’ actually amount to and about the (fairly rare) instances in which it is essential for law or medicine mark either of them.  This will not be easy.  In English law, and in common usage, ‘gender’ is sometimes used as synonym for ‘sex.’  (As in ‘the gender imbalance in the judiciary’. )  But the law’s concept of ‘sex’ is a mess.  And the gender-studies shibboleth that ‘sex is gender, all the way down’, repeated by lazy if well-meaning lawyers, is incoherent.  Yet there is a lot of good work by social theorists and philosophers on these problems.  It has left no mark on the Report.
  2. We need to acknowledge more forthrightly than the Report does that there are real, material conflicts of interest that need to be addressed, in particular, conflicts between the interests of non-trans women and trans-women.  This work is not done in the Report, although a background assumption of a harmony of interests among non-trans women, trans-women, and gay people seems to hover over it, along with the hope that the lawyers will iron out any residual kinks.  Professor Kathleen Stock has shown that this is improbable.  And the furious, often hate-filled responses to Stock’s measured arguments–arguments that raise questions but do not dictate solutions–are one index of how serious these conflicts of interest are.  If the Committee and Parliament cannot even acknowledge them, the chances of coming to a fair accommodation among them are slim.
  3. We need to distinguish, as the Report does not, between (a) the claim that people’s  gender is at present wrongly medicalized, and (b) the claim that a fair and feasible solution to (a) would be for the law, or medicine, to adopt and use everyone’s gender self-identification,  and for every purpose.  I assume there is no serious argument, in the ordinary course of life, against referring to people, and treating them, according to whatever gender with which they wish to identify.  But it does not follow that we never need–for therapeutic reasons, or scientific reasons, or reasons of justice– other standards for other purposes.  Of course, that does not mean that they should be the very standards now in use.  Those are so tainted by sexism and heterosexism that that would be unlikely.   But we do need to think this through.
  4. We need to explore what should count, for legal or medical purposes, as self-identification.   Many contributors to the Report, and many more activist groups, (including Stonewall) seem to assume that it will be a matter of sincerely saying that one is female, or male, or neither.  Just tick whatever box you prefer.  But whatever we think the role of self-identification should be, this is a poor test for it. In medical procedures, saying ‘yeah, fine’ does not count as informed consent in the absence of a complex range of background conditions.  In law, saying ‘I promise’ does not count as a contract in the absence of another range of such conditions. We need to think through the parallel case of ‘gender self-identification.’ It is hard to resist the thought that behind some self-identification views is the idea that ‘no one ever has the right to tell me who or what I am!‘  But that is like saying ‘no one has the right to tell me whether or not I consented,’ or ‘no one has the right to tell me whether or not I promised.’  None of these things are simply ‘in the head’.  The inner conviction that, say, one is a woman stands in need of some sort of public criteria for it even to count as a conviction of the right kind, let alone a conviction that the law can and should use.   It is no help to say we should go by self-identification until we know what counts as self-identification.
  5. At least in law, we should probably disaggregate the policy questions more thoroughly than the Report does.   There is no reason to think that the concept of ‘gender’ that is relevant to who has access to which passports or toilets is going to be the same concept that is relevant to determining who has access to the women’s locker room or to a job in a rape crisis centre.   The law does this sort of thing all the time:  ‘For purposes P, X shall count as Y.’   In some areas, the law is too quick to set up ‘package deals’ where everything comes together; sometimes it is too slow.  But I can think of no reason to assume, a priori, that the current package deal of gender must be maintained.

The Report is worth reading; its criticism of the medicalization and stigmatization of trans identities is correct and important.   Many proposed technical adjustments to the law will benefit trans people (and others).  But when it comes to the central issue of the role of self-identification, it is hard to resist the conclusion that the Report has missed, or perhaps avoided, the questions that matter most.

The US as a borderline case of law

Legal theorists often wonder what we should think about things that are quite a lot like  law but are not, in fact, legal systems.  I’m not thinking  of the rules of board games or the Mafia, but of cases where the similarities are more compelling: soft law, indigenous law, Masonic law, and so on.  These have some features of the paradigm case of law and are missing others.  But, as HLA Hart pointed out long ago, it would be silly to say they are ‘not law’: the term ‘law’ is quite open and flexible.   Anyway, it is too late to say that ‘soft law’ is a misnomer.  There are books about it, courses in it, and no doubt someone will soon start to offer degrees in it.

Moreover, such forms of social order can over time come closer to the paradigm case than they used to be.   International law, for instance, is now more systematic and (a bit) more efficacious than it was when H.L.A. Hart said, in the 1950s, that it is more like ‘set’ of rules than a ‘system’.   As things stand, these are still borderline cases of law, but some of them are on the move.  My own preference is to call them ‘para-legal systems’.

Just as a form of social order can become more law-like over time, it can also become less law like.   Some jurisprudents think that can happen when law fails to live up to certain moral ideals, such as democracy, liberalism, or human rights.  My own view is more parsimonious.  I count Roman Law and Canon Law as paradigm cases of legal systems, even though neither of them has much interest in democracy or liberalism, and both are overtly hostile to important human rights.  Yet law they are.

But even on the more parsimonious view, other kinds of decay can cause law to unravel.   The law can cease to be generally effective.   Under this heading we usually  think of ‘failed states’, but even when state power  gets its way it may nonetheless escape the regulation of law, that is, the positive law of the land.   Is there anyone who believes that the widespread use of terror and violence against African-American men is generally in accord with state and federal law in the US, and that their mass incarceration simply reflects their just deserts, legally speaking? Whole social groups in the US  live in conditions of near lawlessness, and not because they disproportionately violate the law.

A different kind of decay results when the most basic ground rules of a legal system crumble.  I don’t just mean the (formal) Constitution–though in the US that is looking pretty shaky too.  Beneath every Constitution there is a constitution: a set of norms, standards, principles and practices that, together, identify the formal Constitution and regulate how it should be applied by judges and others.  These norms have always been much less settled in the US than in countries at comparable levels of development: the more extreme American ‘legal realists’  wondered whether there was any settled law or convention at this level.   No doubt that was an exaggeration, but there was some  truth in it.  When the highest officials are deeply divided on the relative importance of text, history, and principle in interpreting a Constitution, the most basic parts of a legal system are in rickety shape.

Now critical observers have a fresh worry, focused on the evident corruption of the Presidency and the Senate.  Commentators of all political convictions (though not all commentators of all convictions) agree that they are being  badly damaged by their incumbents.   Not (just) because of probable unchecked violations of the  Constitution, but also  because of the toleration of grotesque assaults on the norms that make that document binding as law.  American commentators lament a lack of ‘civility’ or a rise of ‘tribalism’ in their country, but a legal system can survive  both.  What it cannot long survive is official contempt for the informal norms that underpin the Constitution itself, and that is where the US seems to be heading.

It is not only  apex officials that are responsible for the basic norms of a legal system.   Ordinary lawyers and even, to a lesser degree, law professors and law clerks also play a part.   We read that over 2,400 American law professors signed a letter urging Senators to do their duty in good faith and refuse to confirm an accused sexual harasser, a proven liar, a bully,  a lickspittle, and a man who is said to choose female clerks who have a certain ‘look’.  (Which appears, coincidentally, to be the same ‘look’ that the President prefers among his female attendants and wives.)  Like many law professors, I read that list.  (I was as surprised by the names that were absent as I was by some of those that were present.)  The letter proved pointless.  Anyone willing to do to Dr Christine Blasey Ford what President Trump was willing to do, and anyone willing to do whatever Trump wills, is beyond reason or shame, never mind the constraints of law.  But I think the existence of the letter shows that one vital sign  remains near normal limits.  The bar, or at least some influential members of it, understand well what is now at stake and are pushing  back.   But should they give up, or be sidelined, it will not be long before we should move the US over to the category of ‘para-legal systems’.  Quite a bit like law, in several respects, but not actually a legal system.

 

 

 

 

How not to get into grad school

“Hi Leslie,

I’m a current third year law student at *******. I’m looking to do an MPhil at Oxford University hopefully. I’m writing just to ask is there anyone in the University who I could speak to about possible topics for my research or anything I need to do in my application. I would really appreciate any guidance. I’m a very motivated student who really wishes to progress within this area.

Kind Regards,

[forename only]”

__________

“Dear Mr ********

You’ll find most of what you need to know about our MPhil, the requirements, and how to apply, here:

https://www.law.ox.ac.uk/admissions/postgraduate/master-philosophy-law

Normally, applicants have a research project in mind when they apply to do a research degree at Oxford. (Part of our admission process, in fact, is assessing the quality of their proposed topic and approach).   Our Director of Graduate Studies might be able to help if anything in our published guidance is unclear.   If you are wondering about possible supervision etc. we would still need to have an idea of your proposed research topic before pointing you to someone in particular.

Yours truly,

Leslie Green

[etc]”

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