Why every academic under 60 must have a blog

As I have mentioned before, there is an enormous over-production of scholarly writing, especially in the humanities and social sciences. Some of it is driven by mandates imposed by governments, and lots by universities’ apparent craving for self-harm. Still, quite a lot is also caused academics themselves (i.e. ourselves). We are competitive, self-deceptive, and rarely good at much apart from academic writing—teaching not excepted.

What to do? One possibility is strive for  self-control and to resist writing—and certainly publishing—unless one knows something that at least twelve other people need to know and will never otherwise find out.

Two considerations argue against this approach. The first is that we seem to be very poor judges of what others need to know. The second is that we tend to over-rate the significance of own work. A good friend, X (an enormously distinguished academic) once told me—in a moment of ethanolic honesty—that he had now resolved to publish nothing more unless it was a true ‘X-gem’. Of course this came to nothing, as you will have guessed by the very fact that he presupposed that some non-trivial amount of his work would turn out to be not only of lapidary, but even gemological, beauty. Scores of papers appeared anyway, many of them repeating the repeated lines that had made him influential, in his own scintillating way.

But now consider the obvious alternative: external editors. Won’t that work? Sadly, no. And I say this, in all humility, as an editor of an annual, of a book series, and as a member of the editorial boards of what are regarded as top journals in my fields.

Undeniably, in the outlets for which I am part-responsible, it has never once been the case that we published because: we needed to fill a number, we needed to replace an author who didn’t produce, we thought there could be a market for a ludicrous argument, we liked someone, or we needed to keep up the pace in order to remain on the radar. Still—all of these are true of every other academic outlet in the English-speaking world. In particular, US law reviews (of which there are thousands) are filled (up) with material that, absent such considerations, would never find a home anywhere. They are products of ‘internal’ necessities only—and of the institutional necessity to publish the writings of their own faculty while buffing the CVs of their student ‘editors’.

So here is my suggestion. Every university teacher under, say, 60, should be contractually required to have a blog. (Oldsters will be forgiven their tech-phobias.) The blogs will be hosted and maintained by their own universities, and the universities will not claim intellectual property in the blog-publications, and will never attempt to impose any regulations on faculty blogs apart from those required by general law. But no blog entry will be citable, or mentionable, in any internal context, including deliberations about tenure, promotion, salary, etc. And no one will be allowed to complain in any such context that Professor X is a sourpuss on his blog, or that he published something that their students found offensive, micro-aggressive, or dumb.

The idea is that compulsory blogs could in time become safety valves, relieving pressure from journals and book publishers. Professors will thus be nudged—not compelled—towards writing in places where the marginal cost, and harm,  of another publication is about zero. No longer will someone wake up, realize there is a tiny non-sequitur in some argument, and then start his article-generator grinding away at the literature review, the three alternate interpretations, his own ‘better view’, his reply to all possible objections, and his final, predictable, agonizing, Summary of My Argument—which gets fed into a paper-submission-app, inevitably to be accepted by, shall we say, the Southern-Canadian-Columbian-State-Journal-of-Transystemic-Legal-Studies.  Instead, he will  just have a double espresso, practice three minutes of mindfulness, and then take to his blog. After the scholarly ejaculation has subsided, he will take a nap and prepare for class.

How can I be sure? Actually, I’m not. But what alternative do we have? Everything I can think of seems much worse.

What ‘Brexit’ Really Means–Explained

My part-time colleague, Bo Rothstein, argues for a second referendum on the United Kingdom’s membership in the European Union–if and when the government comes up with ‘a deal’.

Fair enough.  But is his second referendum supposed to be able to reverse the decision of the first one?  Strangely, Rothstein doesn’t tell us.   In light of his examples of referendums of which he disapproves, it is natural to think that he means not merely a second referendum on an independent issue (e.g. the UK’s membership of the European Economic Area–yes or no?) but a second referendum capable of undoing the first, that is, of leading to the UK remaining in the EU–the very option that was so clearly rejected in June.  No referendum result (or election result, or judicial decision) has absolute authority.  But does this one really have zero authority?  Is it liable to be annulled on the ground that it was wrongly settled?

I am not surprised that Rothstein is coy about all this, for offering any definite view would require at least a sketch of the conditions under which a government should comply with the result of a (legally) advisory plebiscite.  He gives us none.  Rothstein does not notice, let alone refute, Richard Wollheim’s old but important resolution of the so-called ‘paradox of voting‘, namely, the fact that one can consistently think that one ought to support X against Y, yet also think that, if the majority supports Y against X, then one should support that. (Within limits.)  Wollheim said there is a difference between our ‘direct’ and our ‘oblique’ policies, and that it is  reasonable to have different policies about what we should ‘directly’ favour (were it up to us alone) and what we should ‘obliquely’ favour when called on to consider which policies should settle differences in what people ‘directly’ favour. So it does not follow from the fact that there was ample reason for me to vote Remain that, after a clear majority voted Leave, I should now insist on discounting their advice, relying instead on the grounds that justified my own initial vote.  The actual, positive, fact of a majority vote matters, and before we decide to ignore it, we need a better reason than that the majority was wrong to vote that way.

Wollheim’s labels never caught on, but his idea did, and it was put to work by writers like HLA Hart, John Rawls, Joseph Raz, John Finnis, Jeremy Waldron, me, and lots of others.  Nowadays we talk about the authority of ‘content-independent’ reasons, or of procedures. I’m not sure that ‘content-independent’ is any catchier than ‘oblique’, but it is the thing we need to consider when we weigh the moral authority of a referendum result, or an election result, or a court decision.  We don’t hear about this from Rothstein, who never tells us when he thinks it is right (if ever?) to give weight to content-independent considerations.  Of course, in a short journalistic piece one doesn’t expect a detailed argument.  But not even a hint?   Not a gesture?  The silence suggests that he thinks positive facts  have no authority at all to set against what is (in ‘truth’) right and proper.

Like most sensible people, he sees that the referendum result is a disaster for the UK–especially for those of us who teach in its universities; but for many others as well, including many who were duped into voting Leave.  But a second referendum?  What about best three out of five? And why not the same for general elections: the law of large numbers may help iron out the wrinkles caused by deliberate deception, voter ignorance, blindness to expertise, and so on. No MP should be elected without winning, say, 3 out of 5 elections.  Or 5 of 7.   There is an internet; it could be done.  But we will need to settle on the number of elections (or referendums) that need to be won in order to produce a settlement.  People will disagree about that, too.  Should we  hold a referendum on that question?  Or ask the philosophers to decide?

Rothstein also says ‘The slogan “Brexit means Brexit” is … meaningless because no one knows what a Brexit alternative will look like.’  That is just false.  I agree that we do not know what the feasible alternatives will be.  I know that Theresa May’s ‘Brexit means Brexit’ was a silly slogan to buy peace among warring factions of her Conservative Party.  But none of that comes close to showing that ‘Brexit means Brexit’ is meaningless.  For starters, everything is what it is and not another thing, so the sentence, if  uninformative, is meaningful.   Taken literally, it is also (trivially) true.  Of course, everyone also knows that it was not intended literally.  It was intended to tell us not to get our hopes up that Brexit will prove to be something other than what it said on the tin.  And what did it say on the tin?  Since so many now claim to be mystified by that, I am going to tell you, for I know what ‘Brexit’ means.

‘Brexit’ means a BRitish EXIT from the European Union. And that means that those who favoured Brexit wanted the United Kingdom to cease being a member state of the EU. May’s slogan assures her colleagues that that will eventually happen. (‘Eventually’ is a very big problem: I may come back to that another time.)

Now, member-statehood in the EU is fairly crisp, well-defined concept. There are no hard cases of EU membership; it is even pretty easy to find out which states are in and which ones are out.  Admittedly, Leave voters may not have known what they wanted instead of EU membership. But that is a different question, and it was not, as far as I recall, on the ballot paper. What’s more, there is nothing suspect about not wanting X while having no idea of what one would want if not X. People can rationally leave destructive marriages or jobs without settling what they might do next or instead.  I think that those who voted Leave were tragically and terribly mistaken. I even think that many of those Leavers who were literate were culpably mistaken, as they  refused to bear what John Rawls called ‘burdens of judgment.’ They negligently failed to inform themselves about highly pertinent, non-controversial, matters of fact; they refused to confront evidence that ran contrary to their prejudices.  Be that as it may, to suggest that neither Leave voters nor anyone else knows what Brexit means is plain dishonest. For a serious academic to repeat that tired, journalistic lie is close to professional malpractice.

Finally, Rothstein–like most other commentators–says nothing at all about one real, politically serious, ambiguity in the referendum result.  It isn’t helpful to talk about what ‘Britain’ decided, unless that is a casual way of talking about what the member state, the United Kingdom, decided.  That is the relevant entity as far as the referendum, and the EU treaties, are concerned.  And don’t say that ‘Britain means the United Kingdom’, as that is worse than ‘Brexit means Brexit’, inasmuch as the former is false and the latter is at least true.  Most of the Northern Irish voted Remain, as did most Scots, whose relation to ‘Britishness’ is more complex than the English imagine.  The referendum decided that the United Kingdom should leave the European Union. So that means that all of Great Britain and Northern Ireland will probably be given what only England and Wales voted for.  About that, there is a reasonable complaint to be made.  Admittedly, in the eyes of most English lawyers, Scotland’s and Northern Ireland’s rejection of Brexit is a detail of no constitutional significance, or no more constitutional significance than London’s.  But the opinions of English lawyers are not as important to Scottish or Irish politics as the English suppose them to be.

As for Brexit, the Scots and Irish, like the English, understood perfectly well what was being asked in the referendum.  They knew that ‘Brexit means Brexit.‘  That is why they opposed it.

Are there any ‘theoretical disgreements’ about law?

In this illuminating new article, Brian Leiter amplifies his criticism of Ronald Dworkin’s treatment of so-called ‘theoretical disagreements’ in law.

http://leiterreports.typepad.com/…/theoretical-disagreement…

Why ‘so-called’? Well, Dworkin made up not only the term but the thing. He was the most inventive legal philosopher of our time. (Also, and contrary to a common belief, he could be a very nice guy. Another day, I will tell you about his kindness to me when my mother was dying and, unknown to me, so was Ronnie.)

Here is is a conjecture that suggests an explanation different from, but not incompatible with, Leiter’s:

A theoretical disagreement is a disagreement about what the law actually is (to the extent that there is actually law) in a case where most competent lawyers agree on *all* the ordinary historical and other empirical facts about what relevant people have thought, said and done. These lawyers are said to disagree *only* about how these agreed, empirical facts ‘make law’–that is, on the *bearing* of all ordinary facts on the law.

Now, the standard(s) that determine the bearing of ordinary facts on the law are usually called ‘recognition rules’, or, to be more precise ‘ultimate recognition rules’.  (Some subordinate recognition rules are themselves matters of law.  That is why neither the US Constitution, nor any part of it, is ‘the rule of recognition’ in US law.)  The existence and content of these ultimate standards are matters of (ordinary) facts, a bit like the facts that determine the existence and content of the rules that provide the criteria for grammaticality in a natural language. (To the extent that there are facts about that: some sentences in a language are neither clearly grammatical nor clearly ungrammatical.)

So there are theoretical disagreements only if there are cases in which (a) there is law, (b) the existence or content of which is subject to disagreement among most competent lawyers, (c) who nonetheless agree on *all* the ordinary facts.  But that set is empty:

Suppose the contrary. Then it must be the case that some disagreeing, competent lawyers are correct in their claim about what the law actually is, and others incorrect. (They might be incorrect in thinking it is the law that not-p, while it is actually p; but they might also be incorrect in thinking that the law is indeterminate, that it requires neither p nor not-p.)  It follows that there are at least at least some ordinary facts about which those very lawyers disagree: to wit, what are the recognition rules of the legal system in question? Any legal disagreement that turns on an ordinary disagreement is not a ‘theoretical disagreement’, as Dworkin defines that term.

Suppose, now, that our Dworkinian  replies: ‘this begs this question. There *are* no ‘”recognition rules” that determine the bearing of facts on law.’ This is no help. Whether or not *there are* any recognition rules is a matter of ordinary fact. A recognition rule is a matter of social custom and practice.  Lawyers who disagree about whether they exist disagree about a matter of ordinary fact. So these lawyers do not have a ‘theoretical disagreement’ either.

Some philosophers never see a ditch they wouldn’t mind dying in.  So they go on to reply, ‘You’ve misunderstood. My claim is that what *you* call ‘recognition rules’ are not exhausted by what *you* call ‘ordinary facts’.  I say they include what I call “moral facts”.’  (Sidebar comment: a lot of legal philosophy–well, a lot of philosophy actually–works by the selective deployment of skepticism.  For example, a roll of eyes over ‘recognition rules’  combined with a fond batting of lashes towards ‘moral facts’ that somehow fix the law.)  But this isn’t a matter of verbal legislation, surely.  One person who says that the ultimate standards determining what counts as law are exhausted by ordinary facts, and another who says they are not, disagree about the nature and content of those very standards, whatever we call them.  One side is  presumably not saying that it is a bad idea, or regrettable, that the ultimate standards  in law should be (what most call) recognition rules.  They are saying that the ultimate standards are not recognition rules at all.   If other competent lawyers deny *that* then they do deny a certain matter of ordinary fact: that there are what most people call recognition rules.  They deny what others assert–that in every legal system there are at least some rules whose existence is a matter of ordinary human thought, speech and action and which determine the existence and content of law  So, again, they do not agree on all matters of fact while disagreeing on the content of the law.

But then how should we characterise their disagreements?  Leiter, in the above piece, sets out some plausible alternatives. None of them requires that we acknowledge the existence of ‘theoretical disagreements’ about the law.

 

 

 

 

I apologize for any offense #MakesMeSick

 

Screen Shot 2016-08-21 at 14.22.40 

In 2012, English footballer Andre Gray tweeted Is it me or are there gays everywhere? #Burn #Die #Makesmesick”.’

Following Gray’s winning goal against Liverpool yesterday, the striker ran for cover as his vile spew was discovered and re-tweeted. Gray said , ‘I want to offer a sincere and unreserved apology to anybody I may have offended in relation to these tweets. His statement went on to assert that he is ‘a completely different person’ now, and that any suggestion that gay people should die or burn was amongst his ‘big mistakes’: he is ‘absolutely not homophobic.’

Gray’s club and fans rallied to his support. In a brief statement Burnley FC minimized the remarks as ‘historical social media posts’ and, while condoning Gray’s ‘apology’, said the club ‘”do[es] not condone any discriminatory behaviour by any employee’. The cowardly evasion did not even appear on the club’s own homepage. And why should it? Gray apologized; he is a whole new person; he is not homophobic.

But none of this is credible, and the stinking words cling like a shitty diaper to Gray, to Burnley, and to the whole Premier League.

First, the ‘apology’ was obviously not written by Gray. The lawyerly tropes, ‘sincere and unreserved and in relation to these tweets’ are not items in any linguistic register in which Gray speaks. The statement is a shallow and phoney lawyer’s production.

Second, suggesting that gay people should burn (or be burned?), die (or be put to death?) is not something that ‘may have offended’ people. To imply that mere offense is at issue here regurgitates the hatred. Admittedly, Gray’s words are not what English law regards as incitement to murder, but they fall squarely within what is, in many jurisdictions, criminal hate speech.  And even where the law tolerates such filth, sane people can see it for what is: a symptom of a dangerously disordered outlook.

Third, there was no psychological rift between 2012 and 2016 that could warrant Gray disowning his words as those of ‘a completely different person’, and no moral rift that could warrant Burnley dismissing them as a ‘historical’ evil. Gray is the person now that he was four years ago, and in 2012 anyone who was not a monster would know that gay people do not deserve to burn or die. Moreover, Gray’s views about sex and gender still remain on flamboyantly ignorant display in April 2015, as we see in his pathetic comment about Joseline Hernandez’ pregnancy:

Screen Shot 2016-08-21 at 13.07.13

Fourth, Gray’s assertion that he ‘can only apologise and ask forgiveness’ is absurd. The club is paying him £6 million for three years’ work. If Gray were to return, say, 1/36th of that in compensation for his wrongful conduct, it would only be £167,000. Four weeks of service to those he said should burn or die. So it isn’t true that he can only apologize: he could do more if only he wanted to. Who to compensate? One appropriate recipient would be Sport Allies, who work to eradicate homophobia in UK sport.

Should we, as some suggest, think that Gray’s early life—in poverty, gang-culture, and racism—mitigates his wrongdoing, that it frees him of the responsibilities of any other human being?   No. In this case, the experience of oppression is not a mitigating factor but an aggravating one. Gray of all players should be able to identify the wrong he has done. He is well-placed to know just what it is like to be always at the sharp end of the stick. He would understand the menace in this:

“Is it me or are there blacks everywhere? #Burn #Die #MakeMeSick”.

Gray would never accept a mere apology for ‘any offense’ caused by those words. Neither should we accept his apology–and  neither should Burnley or the Premier League.

 

Israel’s Bar Ilan University: letting the side down yet again

Professor Hanoch Sheinman is one of Israel’s most distinguished legal philosophers. Like many thoughtful Israelis, he deplores the illegal and oppressive aspects of Israel’s foreign policy.  He is not shy about this. During the 2014 Israeli assault on Gaza, Sheinman introduced a bland housekeeping email to his law students by saying he hoped it,

‘finds you in a safe place, and that you, your families and those dear to you are not among the hundreds of people that were killed, the thousands wounded, or the tens of thousands whose homes were destroyed or were forced to leave their homes during, or as a direct result of, the violent confrontation in the Gaza Strip and its environs.’

Many of Sheinman’s right wing students were enraged. How dare a professor express political views in a work email? How dare a Jewish law faculty employ such a person? How dare anyone suggest the moral equivalence of innocent Israeli and innocent Palestinian lives?

Bar Ilan University’s Dean of Law, Shahar Lifshitz, sided with the outraged students, announcing that their complaints were justifiable: ‘[The] Letter from Professor Sheinman – both content and style – is contrary to the values ​​of the University and the Faculty of Law.’ He continued, ‘This is abuse of power by a lecturer who exploits his position as a jurisprudence teacher to send messages reflecting his views, which are highly offensive to the feelings of students and their families. ‘ Lifshitz promised to deal with Sheinman in due course: ‘I assure you that the matter will be handled with the appropriate seriousness.’

Now one might debate whether a politically charged email is protected by academic freedom. Still, it seems to me that I should be permitted to introduce an email by writing, for example, ‘I hope this finds you healthy and well, and that you have not been driven to food banks as a result of the Government’s policies on student loans.’ That might be gauche or inappropriate—I imagine that my Conservative students and colleagues might think so—but it would be ludicrous to say it amounts to an ‘abuse of power’ or the ‘exploitation’ of a professor’s position.

In any case, even if Professor Sheinman’s comment was not protected by academic freedom, Dean Lifshitz’s threat was condemned by it. For it is clear that by ‘appropriate seriousness’ Lifshitz did not mean ‘the degree of seriousness appropriate to an otherwise innocent, one-off comment that gravely offends some students’ (viz: a degree of about zero). No; Lifshitz plainly meant a degree of seriousness that might warrant formal reprimand, or worse.   When Deans make threats like that, they do not need to carry them out in order restrict the academic freedoms on which teaching, learning and scholarship depend. That they show themselves ready to do so is enough. If there was any ‘abuse of power’ or ‘exploitation’ of one’s position in this matter, it was on the part of Dean Lifshitz.

As is common in cases like this, everyone could see that except the victim’s own colleagues. They mostly went scurrying for cover. (Advice to junior faculty: never get between your senior colleagues and their own self-image.) It fell to outsiders to defend Sheinman. Bad press, the intervention of the Association for Civil Rights in Israel, pressure from hundreds of foreign academics, and threats of lawsuit eventually induced Lifshitz to think again. On reflection, he acknowledged that he had mis-spoken in promising the students that Sheinman ‘will be handled’.

A story at The Leiter Reports now suggests that Lifshitz has been having second thoughts all over again.  A poisonous atmosphere, angry students, and a truculent administration have paved the way for an  ‘interim review’ being imposed on the as-yet-untenured Sheinman.   His lawyers claim that this procedure has been set up without proper university authority, that it is imposed retroactively, and that Sheinman has not been given reasonable opportunity to prepare for it. I have been told by sources close to the Bar Ilan administration that they expect Sheinman to be in trouble on the teaching side. (It is inconceivable that Sheinman’s research could be found wanting; he is more able, and already much more distinguished, than all but a few of Bar Ilan’s tenured law faculty.) Given that outraged students led the charge against Sheinman in the first place, and that the Dean encouraged them, nothing would be less surprising than for Sheinman to be confronted with bad student evaluations. It is amazing that he even manages to continue his research in such a poisonous atmosphere.

You may be tempted to roll your eyes and say, as Rick does to Ilsa in Casablanca, ‘the problems of three little people don’t amount to a hill of beans in this crazy world.’ But it is precisely because academic life in Israel has become so crazy that this matters so much. Bar Ilan’s image problem is nothing new. After all, its law faculty is the alma mater of Itzakh Rabin’s murderer; it is a university where male students can be kicked out of lectures for refusing to wear a kippa, where the administration can demand that faculty defend the contents of their books, and where gay students are prohibited from holding events on campus. Life in the bush league, you say? Maybe; but put this in the national context. Israel’s universities are all struggling to resist the academic boycott movement. Bar Ilan is, shall we say, not exactly helping the cause. Many Israeli academics feel under intense pressure to show that they are not just lackeys of Brand Israel. The Bar Ilan law faculty are doing nothing to help them either.

The latest criticism has now elicited a ‘reply’ from nine of Bar Ilan’s tenured law professors.   Their letter is embarrassingly irrelevant.   Were it a first year student’s answer to a statement of claim it would get a failing grade. It does not even notice, let alone answer, the gravity of the charge: that, as applied, this particular review is unfair and is motivated by Bar Ilan’s desire to silence faculty who, like Sheinman, infuriate their right-wing students. Instead, they irrelevantly say that other law faculties have interim reviews, and they reaffirm their touching faith that ‘Prof. Sheinman’s political views will have no bearing on the committee’s evaluation of his performance. Neither will the letter that Prof. Sheinman sent to students during the 2014 war in Gaza.’

Clap your hands if you believe.

 

 

 

The UK government’s policies, in style and substance

We have been absolutely clear: it is right that we ring fence national security and investigatory powers, even if many oppose us on an industrial scale, depriving as they do hard-working families of choice in striving for British values in a high wage, low-welfare economy, where never again need anything but English votes stand in the way of a truly seven-day NHS, an end to failing schools, and a reformed Europe. Also, we love Scotland.

Wednesday’s Child: My job description grows again

Every year, my job description gets longer. Research and teaching, obviously, and a share of university administration ancillary to that. (For instance, preparing the Law faculty’s REF submission and, more dangerously, chairing my college’s Coffee Committee [OfCoff!].

For the professoriate, these things have always come with the territory. Now, however, I am also drafted as a delegate authority to assist the government in implementing its political agenda. The UK’s self-destructive policies on migration, including the admission of foreign students, are to be monitored by people like me. I have a duty to report how often I lay eyes on my visa students. (What if Oxford students are not really having panic attacks in the library but are actually off in Isis training camps?) I also have a ‘prevent’ duty to make sure they aren’t being sucked into terrorism. (What if they come to believe John Locke’s claim that one may make a violent ‘appeal to heaven’ whenever the rulers try to govern without consent?)

My own view—I wish the Vice Chancellor would endorse it—is that these new duties must not only be ‘balanced against’ my duty to support academic freedom and my Public Sector Equality Duty to advance the status of protected groups—they must be subject to them.  Academic freedom and social equality should be side-constraints within which any ‘prevent’ duty or duty to monitor migration is exercised. Otherwise, the essential bond of trust between teacher and student will be ruptured, and the status of our universities will be undermined.

Consider this. If I do not see a postgraduate student at least three times in eight weeks, I need to report that to the administration.   If I have concerns about why I have not seen her, I need to report those too.  If I fear a student is being ‘radicalised’ I also need to report that. How will I know? The University has a duty to train me: ‘We would expect appropriate members of staff to have an understanding of the factors that make people support terrorist ideologies or engage in terrorist-related activity.’ Of course, the University can’t know what ‘factors’ cause support for ‘terrorist ideologies’ until it knows which ideologies are actually ‘terrorist’. No worries— ‘BIS offers free training for higher and further education staff through its network of regional higher and further education Prevent co-ordinators. ‘ I am not making this up.

Today, I learn that the government is pressing ahead with legislation to ensure that the security services have access to a year’s worth of our online data, including a complete list of every website you accessed. (If you haven’t done so, download Tor now, and browse with nothing else until this legislation is repealed or, if you are in Scotland, until independence frees you from still more English insanity.) The availability of this information will feed into the duty to monitor migration and prevent terrorism.

It isn’t hard to see where this could lead.  I’ve only seen a visa postgraduate twice in eight weeks? Her email says she is away conducting research in Washington. But we can check to see if she has accessed our servers, and from where, and what she is searching for.  We have a duty to keep that data.   A student used to favour power-sharing in Northern Ireland but now jokes that the DUP needs a whiff of gelignite?  I can alert the university to check out his Facebook and Twitter feeds.  Indeed, I must. The statutory guidance says:

‘Radicalised students can also act as a focal point for further radicalisation through personal contact with fellow students and through their social media activity. … Changes in behaviour and outlook may be visible to university staff. Much of this guidance therefore addresses the need for RHEBs to have the necessary staff training, IT policies and student welfare programmes to recognise these signs and respond appropriately.’

It is clear that this government cares little about academic freedom, civil liberties, or social equality. More surprisingly, they seem to care little about the competitive position of our leading universities. (Our opposite numbers at Yale or Harvard are not burdened by any of this–nor by REF or TEF.)   So where are our senior administrators on the issue?  Where is UUK? Where is the professoriate of the ‘elite’ Russell Group of British universities?  I guess they are all off at free BIS training sessions on how to recognize and prevent radicalization among  students.  Or perhaps at job interviews at U.S. universities.

Germaine Greer is right about trans-women

Germaine Greer does not think new clothes, new hormones, or sex-reassignment surgery can turn men into women (or, I assume, women into men).   She is right about that, and a Cardiff University controversy about her planned lecture this month is a tsunami in a teaspoon.

Of course gender is not fixed at birth. Simone de Beauvoir was right that no one is born a woman. Possibly, no one is even born female. Sex is cluster-concept, a bundle of attributes, some of which do not develop until puberty or later. And gender is another cluster-concept.  Gender is constituted by norms and values that are conventionally considered appropriate for people of a given sex. Gender is a lot more vague than sex, and a lot more historically and geographically variable.

But gender has another interesting feature.  It is path dependent.  To be a woman is for the pertinent norms and values to apply a result of a certain life history. Being a woman is not only ‘socially constructed’, as they say, it is also constructed by the path from one’s past to one’s present.   In our society, to be a woman is to have arrived there by a certain route: for instance, by having been given a girl’s name, by having been made to wear girl’s clothes, by having been excluded from boys’ activities, by having made certain adaptations to the onset of puberty, and by having been seen and evaluated in specific ways.   That is why the social significance of being a penis-free person is different for those who never had a penis than it is for those who used to have one and then cut it off.

The path dependence of gender is not unique. Many social categories are shaped by the way they come to take hold. It is one thing to grow up with English as one’s mother tongue, another to speak English as a second language; one thing to be born to privilege, another to be a ‘self made man’; one thing to be raised a Jew, another to be an adult convert. Admittedly, it would be silly to say that fluent learners of English are utterly different from native speakers, that millionaire parvenus have nothing in common with trust-fund babies, or that converts are simply not Jews. These things aren’t black or white. But by the same token it would be just as silly to say they are all simply white. And that is the sense in which MTF transgendered people are not women.

But that is Greer’s point. She says, ‘I just don’t think that surgery turns a man into a woman. (…) I mean, an un-man is not necessarily a woman.’ People focus on her first sentence at the expense of the second. Greer is not saying that MTF people are stuck being men, no matter how they feel, what they choose, how they are seen, or how they are treated. She is not saying that the oppression of transgendered people has nothing in common with the oppression of women.  She is saying that ceasing to be a man does not make one a woman. These things aren’t black or white.

Obviously, the fact that something is true need not stop people taking offense at it. But there is actually no evidence of widespread offense at Greer’s remarks. I called the controversy a ‘tsunami in a teaspoon’ because, contrary to what you might suppose from the press, the students were mostly untroubled by Greer’s comments. Not one in a hundred even felt moved to click on an anti-Greer petition. No serious opposition was mounted; no policy of exclusion was formulated. There was no ‘hecklers’ veto’; in fact, there was a pretty effective hecklers’ veto veto.

So this is all rather puzzling. Greer’s remarks are correct and are neither dangerous nor hateful. The number of critics of students who supposedly want to ‘no-platform’ speakers dwarfs the number of students who want to ‘no-platform‘ anyone.  Maybe the transgender tsunami hit the press, not because of some seismic event in our universities, but because commentators want threats to freedom of speech and inquiry to come from a politically safe source.   And what safer, softer, target than an imaginary recrudescence of virulent PC-ism in our student unions?

The real reason there are so few women judges

British lawyers and the British public are angry with Lord Sumption’s urging to go slow on sex equality to avoid the ‘appalling’ consequences to our legal system that could come from striving to get more women on the bench.

How out of touch can a Supreme Court judge get? (That is not a trick question.) Many people are appalled by the things Sumption explicitly says. I am as troubled by what he implies and—especially—by what he presupposes.

Sumption says that: the reason there are so few women judges in the UK is that female lawyers make a ‘life style choice’ to avoid the kind of work that would make them eligible to become judges; that the English Bar that provides such work is ‘a very meritocratic institution’; and that fifty years would be a short time to wait for sex equality on the bench.  The first two claims are false or misleading; the third is repugnant.

Sumption implies that: there is not now a large enough number (NB: not percentage) of women making that ‘life style choice’ for things to improve any sooner, and that there is serious suggestion of a remedy that could lead to ’85 percent’ of appointments going to women.  I’m sure those claims are  implied and not asserted because to assert them would call attention to their absurdity.

Sumption presupposes that: judicial office is something that should only come ‘at the end of a successful career at the Bar’. One should do it as a kind of personal sacrifice, out of loyalty to ‘a long cultural tradition which is genuinely based on public service’.

Never mind that, in Britain as elsewhere, desire for a judical appointment is as often based on personal or political ambition as on noblesse oblige.  More important is this:

Why presuppose such things about a judicial career? Shouldn’t judging be a job whose pay and conditions enable people to do it without having already banked a fortune as a successful lawyer? Why presuppose that a certain kind of practice is a desirable, let alone necessary, qualification for appointment to the senior judiciary? Sumption himself says that this kind of practice involves ‘frankly appalling’ working conditions. So why presuppose that a high-stress, narrowly focused, socially prestigious, financially lucrative career–often in London–is an ideal qualification for being a judge?

When we think of the appeals courts in particular, and the sort of decisions needed there—decisions about delicate questions of law that could reasonably go either way, decisions that require a sense of judgment and justice,  decisions that profit from broad knowledge of our society and from ordinary human empathy—these are not things for which high-pressure, high-salary, super-lawyers have any special qualifications. Perhaps the contrary.

Brilliant judges—including brilliant women judges—could easily be found amongst in-house counsel, lawyers who went into business, lawyers in public service or in small firms, perhaps even amongst law teachers in universities.

The presumption that the tiny circle of our elite Bar is the best or natural training ground for judges is one of the things that entrenches the sexism of our courts. The main problem is actually not the attrition of women from the careers that Sumption thinks make for good judges; it is presuppostion that those careers make for good judges.

Wednesday’s Child: The New vs The True

A paper by a junior scholar greatly impressed me. I thought it should be published. A distinguished philosopher did not share my view: ‘It’s warmed-over Rawls,’ he wrote, in a curt letter of rejection.

Now, I could see for myself that the central claim of the paper wasn’t completely new. But it was, I thought, completely true. And its case for a familiar truth was different from—though not inconsistent with—other arguments to the same conclusion.  So why the obsession with the new?

This misery has company elsewhere, including in the social sciences.   I do not only mean that, when others try to replicate famous ‘findings’, they cannot get the same results. I mean that hardly anyone tries to replicate anything.   You can see why. Replication is expensive and unoriginal. Editors do not fight over a paper that argues that the findings of an earlier paper are all correct. Hence, there is a high prior probability that a lot of what finds its way into print is rubbish. (And then that rubbish is cited, and the citations re-cited, by philosophers who want their work to be ‘continuous with’ the advanced social sciences.)

In the humanities we do not have the excuse that originality is cheaper than replication. Admittedly, some of our work is not truth-apt, and some that is truth-apt is not truth-oriented (for instance, because it is bullshit). But I imagine that most of us hope that our claims about things like justice or law are, if not true, then true-ish.   Yet our collective behaviour reveals a strong preference for the new over the (merely) true.

In my own fields, the pursuit of novelty has bad effects: one can be pretty sure that the next general theory of law will be more daft than the last one. And in moral and political philosophy writers continually ‘discover’ principles that no one in the history of humanity ever heard of.

The novelty-fetish has further  knock-on effects.   It isn’t enough for ideas to be new; others need to acknowledge that they are new, so small novelties get over-emphasised, and the errors of past writers exaggerated. No longer are others merely mistaken, misguided, or muddled—their claims must be ‘ridiculous’, ‘disgraceful’, or ‘ludicrous’. These epithets have various meanings, but they have a common use. They are all ways of pleading, ‘Don’t read him! Read me, me, ME!’

Though not excusable, this is understandable. Most of us write for a serious audience of a few hundred, of whom maybe a couple of dozen actually engage our work. (Legal and political theorists who imagine they have ‘impact’ in the halls of power, or even literature, mostly live in a hall of mirrors.) To lose a few precious readers to the judgment that our work is warmed-over Rawls (or Mill, or Marx…) feels like an amputation without anaesthetic.

We need to get over that.   David Hume exaggerated when he wrote of political philosophy that, ‘New discoveries are not to be expected in these matters.’ But he was not ridiculously, ludicrously, or disgracefully mistaken.   Here as elsewhere, Hume was mostly right—though with some one-sided over-emphasis.   And there was nothing new in that either.