Jurisprudence in a pandemic

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In the early days of the covid-19 pandemic, a philosophy professor posted in the social media a cry of despair: he was having trouble ‘working from home,’ knowing that almost any work he might do would be less important than anything he could do that would help others.  A friend quipped, ‘It took the pandemic to make you see that?’

I have no doubt that the philosopher had at hand all the familiar replies: (a) we have a contractual obligation to do our work, but not to help a frail neighbour get groceries; (b) we have our own lives to lead and are already set on them; we are not resources for the use of others;  (c) we refuse to be taken for suckers, and our colleagues are getting on with their work; (d) our work may not be helping others, but at least it isn’t hurting anyone.

Those are, in ordinary circumstances, good reasons for not conscripting us to help those to whom we owe no special obligations.  But in our actual circumstances, they are pretty weak reasons for deciding to do nothing to help anyone outside our households.

As terrible as this pandemic is, we have not yet reached the point where general conscription is justified.   But any of us can now change the balance between getting on with our research (or scholarship, or whatever) and attending to someone else.  Most of us could do so without coming close to breach of contract, abandoning our lives, becoming doormats, or hurting more than we help.  The most senior and best paid among us can do so at no significant cost to ourselves or even our careers.  So why don’t we?

An easy answer is selfishness.  But I have come to think that explanation is too easy.  It isn’t merely that when we are dependent on reciprocity selfishness can be self-defeating.  I  think it isn’t as easy to be selfish as some assume.  It takes discipline and effort to bring yourself to care mostly about your profession, your recondite passions, trivial marks of distinction, or purely positional goods.  We were taught the necessary skills as students.  Many of us then adopted principles that reinforced those skills.  For some, keeping faith with those principles became an end in itself.  It was hard work, and did not come naturally.

To think a narrow selfishness is the academic’s default is as wrong as thinking that bias is the default disposition of a judge.  Left to themselves, many judges would be decent.  It takes a deep commitment to the rule of law to be willing to apply, consistently and without exception, any and all existing laws, no matter what they are or how they affect people.  That disposition is not impartiality: it is a willingness to give full effect to the biases encoded in the law. Without discipline, an ordinary (human) judge is liable to veer off into justice, humanity, or common sense.  Solomon’s wisdom did not lie in his skill at applying rules.

My guess is that academics (in my own fields, anyway) are less selfish than we are embarrassed to help. Admittedly, a few seem without shame in explaining to epidemiologists how the pandemic will progress, or to all of us how we should value human lives against the stock markets.  But they are outliers.  Many of us feel ashamed at now having so little to contribute to the public good, especially if we were educated (as I was) entirely at the public expense.

One remedy is to remember how much we can do that is non-specific.  Any of us can help someone (the housekeeper, the gig worker, the laid-off server) fill in the forms that stand between them and the benefits our ravaged welfare states still provide.  Before heading to the grocery store, any of us can ask someone what we can pick up for them—and not,  by the way, by saying  ‘Let me know if you ever need help.’  We know, or can easily find, people who always need help.  Don’t expect them to supplicate.  We also probably have phones, as well as the numbers of people who just need to talk. (And not, unless you are under 25, by texting.)

We omit these small services, not because we are selfish, because it is hard to admit that these are the only sorts of things that many of us in good jobs, ‘working from home,’ can do for others.  We feel embarrassed that we have little more to offer.  We wish for something grander, something that would display our expertise, perhaps leading to acknowledgment of how smart and important we really are.  That is not selfishness.  But it does exhibit, shall we say, an unhealthy relationship with one’s self.

 

 

 

 

 

 

 

 

 

 

 

A Lenten thought on good Samaritans

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In an article published twenty-years ago, Christopher Wellman introduced legal philosophers to the idea that the duty to obey the law might be based on a duty to do one’s fair share in assisting others.  For reasons that puzzled me, Kit called these ‘Samaritan duties.’  The paper deserved and got lots of discussion, and ‘Samaritan duties’ entered the jurisprudential vocabulary.  I’ve heard someone say Catalans owe a ‘Samaritan duty’ not to seek independence from Spain (Catalonia being a more wealthy part of a less wealthy country), and last week a desperate unionist even told me that Scots now have a ‘Samaritan duty’ not to abandon the United Kingdom (Scotland being a relatively humane part of an increasingly inhumane country).

I admired Wellman’s article, and still do, though I think his argument mistaken.  (Admiring things one considers mistaken used to be normal amongst philosophers.)  But I never understood why Kit thought a duty of beneficence was particularly ‘Samaritan’.  I had one lawyerly worry and one philosophical worry.

Our legal systems have two mechanisms that push back against the selfishness they often aid and abet.  The first is the duty of (easy) rescue, more common in civilian systems than in common law.  The second is not a duty but an immunity.  ‘Good Samaritan statutes’ protect certain people from liability when their good-faith attempts to help others go wrong. A duty to help is different from a Samaritan immunity, though both can deflect tort liability.  So why didn’t Wellman just say his theory was based on a duty to rescue, or more generally on a duty of beneficence?  It was (to me) confusing.

More important than nomenclature, however, is the fact that the Samaritan story in Luke’s gospel (10:25) is not there to teach us to help others in need.  That principle was already entrenched in the Hebrew scriptures and would have been well known to the priest and the Levite who crossed the road to avoid the man robbed, stripped and left for dead.   Nothing in Luke’s story intimates that priests or Levites were devotees of Ayn Rand.  The theological point is that a body in that state could have been ritually unclean—a corpse–so  Jews would then face a conflict of duties: to get close up and help, and to stay away from what could be a dead body.    (Today we might think of American evangelicals who say they are to love all sinners, and also that America has a duty to keep out destitute migrants, who could be rapists and drug dealers.)

The duty to rescue is simply taken for granted by Luke. And not easy rescue:  the hated Samaritan goes far beyond that.  What then is the point?  Remember the context.  A lawyer (νομικός) is trying to trip up (ἐκπειράζων) Jesus, an illiterate peasant getting too big for his boots.  The lawyer asks what he should do to inherit eternal life, and Jesus returns with the question: What do the scriptures say?  The lawyer recites the answer they both know well.  It includes the duty to ‘love your neighbour as yourself.’ (Lev. 19:18) The crunch follows. The lawyer thinks he has now cornered Jesus and asks, ‘and who is my neighbour (τίς ἐστίν μου πλησίον)?  The tone of the question is: and exactly who is my neighbour?  Where exactly do we draw the line?  Jesus’ shocking, over-the-top, answer is absolutely anyone you can actually help, even an enemy, and even at very substantial cost to yourself.

There is something wonderfully anti-nominian in the parable.  Every lawyer knows tactical uses of the question ‘but where would we draw the line?’  But they do not always know that it demands different responses in different contexts.

In North America, we approach not only Lent but income tax season, in which those with resources pay lawyers and accountants get just as close as they can to the line between tax avoidance and tax evasion.  Maybe that is OK.  But in other contexts, our attitude to law’s lines should be: ‘stay well back!’  How do we draw the line between enhanced interrogation and torture, between persuasion and coercion, between misleading and outright fraud?  There is no good, general, answer.  But when we have the line, we should not be trying to get as close to it as we might get away with.

Law is filled with ‘line-drawing exercises’.  It is part of the law’s function to lay down lines in areas where, absent law, no lines exist.  We need lines for guidance, and sometimes for fairness.  But the Good Samaritan parable is mainly about the spirit in which we are to approach law’s lines.  If a ritual duty forbids touching what could be a corpse, the Samaritan duty tells us to push up hard against the artificial line dividing reasonable fear and opportunistic avoidance, even at significant cost to ourselves.

How do we distinguish lines that we may push up against from lines from which we should stay back?  I don’t know, and Luke gives us no help.  But it seems to me that when it comes to the destitute and despised, we do well to push up hard against whatever line suggests we may or should leave them to die by the roadside, or in the refugee camp.

 

 

 

 

 

 

 

Research, Scholarship, and Curating

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For the first time in ages, I did some research.  I do not mean I did whatever it is that, when added to my teaching and administrative duties, sums to 100% of my contractual obligations as a university professor.  I mean I researched something—I found out something I didn’t know, but which was there to be known. (‘What authority do Scottish courts now accord the 17th century ‘institutional’ writers, such as Erskine and Stair?’ There is a [vague] answer to this question, and I found out what it is.)

I also often try to find out what others are saying about things I’m interested in: so I do look at periodical databases, SSRN, Westlaw, and so forth.  But that’s not really ‘doing research’.  What’s more, that once-common activity of ‘keeping up with the literature’ has become, like visiting parish churches, the pastime of a certain class only.  An influential philosopher told me he never reads the journals anymore:  he has his own work to get on with.  It takes a certain kind of person to assume that everyone else is waiting for your next, while you have nothing to gain from their last.  (A kind of person now well represented in my subjects, and I suspect in the humanities more generally.)

But if I’m not doing research in jurisprudence, what exactly, or even roughly, have I been doing all these years?  For a long time, I thought that it should be classified as scholarship.  I arrived at that conclusion by applying this rough test:

R=df:  If your failure, or delay, in writing something means someone else might do it first, then you’re doing research.

 S=df:  If your failure in writing something means that no one else will ever do it, then you’re doing scholarship.

I think you get the drift.  But the definition of scholarship proves over-inclusive. No one else is going to write your poems either, and not just because of the metaphysical necessity of origins.  It’s just that, if you don’t write them, they are not going to get written by anyone. There weren’t competing crews working on a Toy Boat, then Ocean Vuong’s crew crossed the line first.  But that doesn’t make Toy Boat a piece of scholarship.

My definition also struggles with historical studies.  In principle, someone else might be working on A History of Freemasonry in Kilbarchan, and might publish before you; but his will not be your history.  Indeed, if your history is any good, it is unlikely to be just like his.  He will approach your shared subject with different preoccupations, background, and maybe even methods.  Still, both of your histories are likely to include, or produce, research.

I’ve now come to think that, not just my definitions, but my dichotomy of research and scholarship is too crude.  I am now wondering whether we might think of some of our work in jurisprudence, or in philosophy more generally, as more like curating. (I wanted to write ‘curacy’, but OED tells me the word has been taken.)   Like research, curating can find out things; like scholarship it can communicate things in a way unique to, or bearing the indelible imprint of, the creator.  But curating also does something else.

A curator attempts to care for knowledge and culture we already have.  Not by freezing it or ensuring no others can touch it, but by conserving it while placing it in a new context, or displaying it from a new angle, or in the company of new ideas, so as to make it intelligible and perhaps useful to those who follow us.  A curator protects what we already know (and value), not only against forgetting, but also against the disintegrating forces of self-importance (including national self-importance) and against the blaring noise of the news cycle.

At the end of his play, The History Boys, Alan Bennet gives the closing words to Hector, the childlike schoolmaster whose career is ruined by his fumbling and fondling affection for the boys.  But it is Hector, not the smarmy if effective Irwin (another, even more tragic, closet-case) who actually gives the boys an education.  Irwin merely teaches them how to game the system and win places at Oxford.  Yet Hector does neither research nor scholarship: he recites, assembles, displays and, especially, places in the context of their world some truths the boys need to know.  Mostly, they are things everyone already knows, but which cannot be counted on to survive without care.  Some truths are fragile:

“Irwin He was a good man but I do not think there is time for his kind of teaching any more.

Scripps No. Love apart, it is the only education worth having.

Hector Pass the parcel.

            That’s sometimes all you can do.

            Take it, feel it and pass it on.

            Not for me, not for you, but for someone, somewhere, one day.

            Pass it on, boys.

            That’s the game I wanted you to learn.

            Pass it on.”

The thought is put more sentimentally than we should in jurisprudence or philosophy.  But Hector’s core idea now seems true to me—some of what we do, and some of what we should be doing—is neither research nor scholarship, but ‘passing the parcel’, in the hope that it will be of value to someone, somewhere, one day.  It’s a decent, and honest, ambition.

 

 

A new direction, and permissive sources of law

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I took a longish break from blogging, owing to ill-health on my part, and then to the death of a dear friend.  As my (few) readers know, I use this space to think aloud about things I am not writing about.  I’ve always needed somewhere I can misbehave, even if only a little. So it was fun to attract comments of the form, ‘You should read X’s reply to Y in the Intergalactic Journal of Z studies, if you ever plan to (=pragmatically-implicates=df: if ever I will allow you to) discuss this topic seriously.’  I deleted those.  Also, when someone claimed a right to comments from me, I told them they first needed to apply to Oxford University law school and get admitted.  I don’t think anyone did.

Then I took a permanent break (contradictio in adjecto?) from social media.  I do miss Twitter for news and links, but I don’t miss seeing philosophers (and others) I admire being bullied and defamed by people who, as the Buddha puts it, ‘have poor self-control’. Very occasionally, I wrote to such people—but only if they were in statu pupillari—just to point out that they were making themselves unemployable, and not only in universities. (Possibly also un-dateable, but who knows, these days?)   I miss Facebook for different reasons.  It was the only place I could find out what was going on with my family—including, odd as this must sound, find out who had been born or died.  Facebook was also the place my brethren ‘on the square’ would let me know what’s up, and where.  I found work-arounds.  But I am still on Candide: the most useful social media site ever invented (Grindr not excepted).  It’s for gardeners.  We talk about how to keep things alive, we admire or criticize each other’s plantings, we complain about the weather—we wail about the climate—we try to solve other problems, too.  But how long will Candide last, before someone wrecks (monetizes) it as well?  Probably someone who has never read Voltaire.

So, (linking non-sequitur) I think I’m now going to use this space to talk more about things I am writing about, or about things I’ve been reading.  And here is a start:

I worked for a long time in Canada and in the US where many people teaching substantive (‘legal’) subjects in law schools are what I call ‘casual legal realists’.  I mean they take it for granted that the ‘law on the books’ isn’t much help in court, and that what counts is to be able to spin a story—perhaps decorated with cases—that will appeal to the judge.  Some casual realists acknowledged that such stories are not, strictly speaking, the law; but too many also had philosophical ambitions, and went on to tell students that this is what law really is.  The law is what the judges say it is; or whatever the judge’s mood or politics is; or whatever strikes them as fair.

Of course, there is something in casual realism—certainly when compared to the fantasies of economists and so-called ‘Kantians’ in law schools. But I never thought casual realism was correct (legally or philosophically).  I thought, and still think, that if a sexist judge regularly finds against female claimants, it does not follow that the law itself is against women.  That might not be the law even if it would be economically efficient to find against women, or even if  pure Recht ‘constitutes’ the freedom and equality of women via sexual complementarity–separate, but oh-so-equal.  (Shockingly, Ronald Dworkin once mooted that possibility.)  But: maybe the judge is just breaking the law?  Or is stupid, or hateful, or….  After all, we know law professors who are egotists, sexists, racists, homophobes, and xenophobes.  Why expect more of judges?

BUT:  I also think that all law is positive:  law is constituted wholly by facts about what actual people believe, want, intend, and decide.   The fact that something would be fair, efficient, or reasonable—or even entailed by other true legal propositions—does not suffice to make it law.  So what to say about the embarrassing facts I mentioned above?

It is tricky to square these thoughts: that only actual facts determine the law, but that the law is also in some sense a system of norms telling us (or at least telling judges) what we ought to do.

I’ve tried to tackle this problem before, but  colleagues persuaded me that I had handled the ‘realists’ too roughly.  Here is another attempt.  While SSRN is misbehaving, it should also be accessible here

 

 

 

 

 

 

 

 

 

 

 

My student’s penis

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For some years, I was a Visiting Professor of law at the University of Texas at Austin.   I learned enormously from my colleagues there—and the great state of Texas paid me for it!  Admittedly, I also had to teach for that privilege, but my students were smart and ambitious, and the fizzing intellectual atmosphere  at UT Law made it all a pleasure.

I also fell in love with Austin: South Congress, Zilker park, Alamo Drafthouse, Ruby’s, South-by-Southwest, and also (the following are minority tastes) Hippie Hollow, Oilcan Harry’s and, especially, the late and lamented Charlie’s—which offered cheap margaritas and handsome men who, if you were not a racist asshole, would let you flirt in your high school Spanish and who might give you tips on East Austin restaurants.  It was, and I hope still is, a brilliant city.

But Austin was also the first place I was confronted by a student’s penis.  (I mean outside gyms, locker rooms etc.: such banal encounters never rose to proper confrontations.)  And this was long before ‘dick pics’.  Now, pretty much anyone might receive an uninvited penis or two in their inbox.  Their frequency increases with one’s location along the male-female axis and decreases along the age axis—though some of my middle-aged, straight male colleagues tell me that even they have received (fully confrontational) penises in statu pupillari.

My first dick pick was actually a dick flick.  I did not invite it, expect it, trade for it, pay for it, or hit on the student who sent it. It was purely donum gratis.  I did have a strictly platonic crush (in the English, rather than Platonic, sense of ‘platonic’) on a graduate student who had a very non-platonic crush on the penis-guy.  My platonic friend sent me a (disguised) link to his colleague’s penis performance, which was posted to a well-known ‘amateur’ porn site.  (My friend also sent it to many UT law students: I called him out on that, but too late.)

In the flick, the law student masturbated while scrunching his face into a leer that he may have considered sexy.  He was not good at any of this, but evidence suggests his flick was, for a while, popular.  In a couple of days, many UT students and faculty were tittering about it. (This was before they could have been Twittering about it—things would have been much worse for penis-guy today.)

Now, I had written academic papers on pornography and sexual objectification but I never  considered whether they had any bearing on students. I had argued that the post-modernist reductionisms of the 1990s (‘sex is gender’, ‘woman is a performance’) were poor guides to the conceptual or moral issues raised by same-sex pornography.  But I did not yet see that that these theories were also cocked, primed, and ready to blast away at  compromises between the conflicting interests of women and trans-women.  If there is no material reality or significance to a penis, if it is merely a production of  ‘discourse’, then a lesbian has little ground for complaint if her Tinder hook-up arrives wielding a penis, even one less striking than a vegetable marrow.   I did not welcome videos of an actual, material penis–especially not one attached to a student I knew–but I did not reflect on the fact that there are many other places that unexpected penises do not belong.

The other penis-fact that I missed yanked in a different direction.  Much pornography studied in the 1990s fell into a familiar paradigm: commercially produced imagery of women, displayed as masturbation material (as Catherine MacKinnon usefully put it), to serve men, often exploiting and dehumanizing the ‘actors’.  There is still lots of that  around.  But the dick flick was contemporaneous with the rise of what I call  ‘auto-pornography’:  masturbation material produced by the ‘actor’ himself,  not for commercial reasons, and not a result of exploitation, but perhaps a prelude to or substitute for, sex ‘in real life’.  Now, most of it is made by adolescent boys and young men using only their phones and it is intended for a limited audience.  (My student’s penis should remind them, however, they cannot count on that: any online penis is a free-range penis.)

We partly address these cases through consent: uninvited ‘dick pics’, to say nothing of ‘revenge porn’, clearly violate that principle.  However, I have also come to think that there may be other issues here, including this one:  What does it do to a boy to objectify himself, to produce himself as sex toy or masturbation aid, even donum gratis?  I did not notice this owing to the dialectical focus in the literature on ‘typical’ pornography, and owing to my then-exaggerated reservations about paternalism.

I had argued that ‘sexual objectification’ is not necessarily a bad thing–Martha Nussbaum made the same point, more eloquently.  Perhaps I advanced the discussion a little by calling attention to the fact that access to sexual objectification, when it is a good or benign thing, is unequally distributed, and that may be of moral concern.  Gay children, disabled people, and the elderly do not find it easy in our societies to imagine themselves as sexual objects, and few feminist writers took any interest in whether they had needs that might be served by the liberty to use pornography.

Auto-pornography, however, raises new issues.  Some are matters of law.  I don’t want teens prosecuted (and they have been) under sexual offences provisions for making or possessing dick pics.  Some of those prosecutions relate to the alleged possession of child pornography (imagery of people under 18) which is in England a strict liability offence, and conviction for which can lead to a life-  and career-destroying entry in the sex offenders register. I also don’t want the UK to require all users of porngraphy to identifiy themselves in a pointless interference with the personal liberty of teenagers, and one that is anyway bound to fail.

But I have also come to wonder whether we spend too much time worrying about the (mostly conjectural) harms, or benefits, to others from consensually made and used ‘ordinary’ pornography, and not enough time worrying about the self-harm, or benefits,  that may be caused or constituted by teens making pornographic videos of themselves.  Even a Millian who doubts that paternalistic considerations ever warrant interference with liberty should be open to non-coercive protection of teens from harmful activities that they have every right to do.  As far as I know,  philosophers are not discussing this.

I never knew my student well enough to know why he made porn.  He was well-off, smart, and (penis aside) pretty good-looking, so I assumed maybe it was just a lark; anyway he seemed like someone who could handle whatever he was letting himself in for.  But maybe he was struggling to capture something he felt lacking in his life: admiration, approval, lust, or as we might say now, ‘likes’. I don’t know.  But I do know that moral and political philosophers have spent too long developing increasingly intricate briefs for the prosecution, and not enough time thinking about cases where harm to others is not the only concern–and maybe not a concern at all.  I don’t think that penis-guy harmed anyone else in making his flick.  But I now regret that I took so little interest in whether he had in any way harmed himself.

Free Speech and Pronouns

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Suppose someone asks to be referred to by a gender-neutral pronoun: ‘their’, or maybe ‘ze’.   (A) Do you have to do it?  (B) Is it wrong if you don’t?  (C) Does anyone else have the right to require you to do it?  The answers are:  (A) Yes;  (B) Normally; and (C) Sometimes.

(A) We have a social obligation to address people and refer to them in the way they prefer. If your friend wants to be called Daniel and not Dan, then Daniel it is.  If Dad wants to be called Dad and not Bob, you call him Dad.  If Ms. Ahmed marries Mr. Mackenzie, you continue to call her ‘Ms. Ahmed’ unless and until she tells you otherwise—you never insist on ‘Mrs. Mackenzie’ against her wishes.  You call an instructor ‘Dr’ or ‘Professor’ as appropriate, unless invited to call them something else.  (Especially in the case of women. They earned their titles, yet often suffer ‘Miss,’ or even ‘Judy,’ from people who reflexively acknowledge the authority of male instructors.)

(B)   At the same time, a breach of a social obligation isn’t always a big deal, morally speaking. You shouldn’t wear a Hawaiian shirt to a funeral, and you shouldn’t smoke in a friend’s company without permission.  But these are matters of etiquette, not morality.  Why is deliberate mis-naming different? People’s names, titles, and pronouns are part of their identity, and to deliberately address them in a way other than they wish is a gratuitous insult.  That is wrong in itself.  But it is also to presuppose that they are to be admitted to your conversational world only on your terms, not on their own.  That is not only offensive to them, it is also an offence against them.  Of course, there are exceptions.  If you oppose titles of nobility or religious nomenclature, you have no duty to call someone ‘Lord Black’ or ‘Father Brown’, even if their bearers prefer it.  But what if you firmly believe married women should take their husband’s names, because St Paul said something that, in your view, requires that?  Doesn’t that make it morally permissible for you to insist on calling Ms. Ahmed ‘Mrs. Mackenzie’?   No: Love your neighbour as yourself.  And grow up.

(C)  Now, what about free speech? Even if mis-naming is a breach of social obligation, and even when it is also a breach of moral duty, doesn’t the free speech principle prohibit others requiring me to address people as they wish.  Isn’t that my call?  Who is anyone to boss me around?

It is hard to believe, but a Canadian professor of psychology (who insists on ‘Dr. Peterson’ from the press) thought that this would amount to ‘silent slavery with all the repression and resentment that that will generate.’ Knowing even less about the law than he apparently does about psychology, Dr. Peterson fears that pronominal intransigence might expose him to hate speech prosecution.  It would not.  But it might, and I think it should, expose him to discipline on his campus.

Universities are not just public platforms; we have work to do.  One aspect of that work is teaching students in an environment in which they can learn without distraction and, in particular, without being insulted or needlessly exposed to risk.  To insist on calling transgender students (or faculty) by anything other than the name and pronouns they prefer is a gratuitous insult.  (See above, (B): ‘Grow up’.)  More important, students cannot learn effectively when subjected to regular offence or humiliation from their instructors.  So take your opposition to the ‘silent slavery’ of pronouns to Youtube or Hyde Park Corner, where your audiences are not captive.

Mis-naming can sometimes be worse than an insult.  Imagine an anti-Semitic professor who thinks far too many Jews are admitted to his university.  Imagine it is already dangerous for Jewish students on campus. The professor breaches no other laws or regulations, but does insist on mis-naming his Jewish students:  He knows that Green’s father changed the family name from ‘Greenberg’, so that is what he calls Green.  He pronounces all middle-European names ‘correctly’, to emphasize their foreignness:  ‘Weidenfeld’ gets ‘Vy-den-feldt’, never ‘Wy-dun-feld’.  Mike always gets ‘Micah’.  And so on.  If challenged,  he says his mis-naming is merely correcting errors.  He says his purpose in doing that is to highlight Jewish over-representation.  His secondary purpose–he also says–is to stand up for free speech, and to strike back at ‘social justice warriors’ who are trying to sell people like him into ‘silent slavery’.  The effect of his behaviour is that Jewish students are now even more anxious than before, for he has made them visible targets for anti-semitic discrimination, or worse.

There used to be instructors like this.  (Perhaps in some places they still exist.) But there are now many more instructors like Dr. Peterson, who insist on their right to call transgender students by a previous name (perhaps the one on their application form) or to refer to them by what he considers to be their genitally mandated pronouns.  Where transgender people are at risk of discrimination and violence—which is to say, everywhere—this marks them as targets, even if the actual discrimination or assault is left to others.

But isn’t that effectively to ban discussion of transgender rights or (in the case of the Jewish students) to cramp exploration of admission policies?   Of course not.  Prohibiting deliberate mis-naming would be a reasonable time, manner, and place regulation in a university classroom. There is no ‘slavery’ here, silent or otherwise.  Then what about ‘all the … resentment that that would generate’?  Feelings of resentment are partially within our control.   The case for campus speech regulations is at the same time a case for learning to control one’s resentments.  If they prove intractable to rational control, there is always psychotherapy.

 

 

 

Law, Norms, Hate, Porn, Progress, Gender

Some thoughts on these things: in an interview with Richard Marshall.

Marshall has had to migrate his interviews with philosophers to this new site, owing to a hecklers’ veto of 3:AM magazine (as it then was). I’m glad to see he is keeping up his work, and not grovelling to the Twitter mobs.

‘[W]henever you see someone groveling to another person or flattering him insincerely, you can confidently say that this man also is not free, and not only if he is doing it for the sake of a meager meal but even if he is hoping for a governorship or a consulship. Call people who act like this for small things petty slaves, and call the others, as they deserve, slaves on the grand scale.’

Epictetus, Discourses, 3 (trans A.A. Long)

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.