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.

Wednesday’s Child: The Teaching that Students Pay For

The universities minister, Jo Johnson, criticizes the ‘lamentable’ teaching some UK undergraduates receive. He is determined to ‘drive it out’: by subjecting universities to for-profit competition, by letting weak universities go under, and by imposing on everyone another costly and destructive regulatory scheme, the threatened ‘Teaching Excellence Framework’.

Never mind that there is no empirical evidence that bad teaching is pervasive. Never mind that our leading universities compete in a global market against peer institutions that do not waste time on ‘Excellence Frameworks’. Never mind that the best teaching is expensive, and  if there are to be more contact hours, more feedback, and more Nobel laureates in smaller classrooms, someone will need to pay —if not the public, then students.  But another reporting scheme, in which first prize may be permission to raise regulated fees by no more than inflation, will make teaching worse, not better. Hundreds of millions of pounds are already wasted in a national research evaluation scheme whose benefit has never been tested, let alone demonstrated.

Of course none of this is about empirical evidence. The government is worried about optics: ‘It is not at all clear to some students what their tuition fees of £9,000 a year actually pay for…,’ says Johnson.

It varies, but at my university (of which Mr Johnson is actually a graduate) one thing tuition fees do not pay for is the cost of tuition. We subsidize that, by spending our endowment to the tune of something like £8,000 per year per undergraduate. Yet there is no scenario in which the government will allow any university to let tuition fees rise to £20,000 or £30,000 a year. (Nor, in my view, should it.)

What then are students ‘unclear about?’ The answer is obvious. It is unclear to them why they should be paying even £9,000 a year when their counterparts in excellent German or Scots universities are not. It is unclear to them whether they should be going to university at all, since the economy is not producing enough graduate-level jobs for all who graduate.

We could clarify their minds about that without yet more bureaucratic regulation:

(1) They are paying tuition fees because they (mostly, their parents) voted for political parties who think higher education should be paid for privately and not publicly. (I set aside the massive charge on the public purse that will be racked up through unpaid student loans.)

(2) Their degrees are worth less because the economic value of going to university, though still significant, is lower than it used to be.  A degree is in part a ‘positional good’. The more graduates there are, the less valuable it is to be a graduate. And as long as the austerity-cult continues to depress the economy, even the few who graduate from elite universities now compete for fewer good jobs. (I set aside the bullshit jobs created by the regulatory schemes themselves.)

But maybe I oversimplify.  Perhaps the unclarity in students’ minds is of a different kind.  Maybe they are asking, ‘What am I doing here anyway?’ or ‘What’s the point of education if it doesn’t land me a better job?’  If that is a widespread worry then it is a sign, not that university teaching is failing, but that it is succeeding.

Occupy (the right aspect of) the syllabus!

Brian Leiter comments on the mindless identity politics among the Berkeley undergrads who demanded that a course on ‘classics of social theory’ (Plato to Foucault) should mirror the social justice interests of the privileged college students who chose it:

We must dismantle the tyranny of the white male syllabus. We must demand the inclusion of women, people of color and LGBTQ* authors on our curricula.”

They ask,

‘Are your identities and the identities of people you love reflected on these syllabi? … Is it really worth it to accumulate debt for such an epistemically poor education?’

First, as Leiter notes, there is the humiliating fact that these students seem unaware that Foucault was gay.  Not to mention the interesting case of Plato.  And all those confirmed bachelors among the tyrants.  Yet the students turn lavender contemplating their own firm belief that there are no ‘LGBTQ*’ authors on the curriculum.

They have a better complaint about sexism.  It is troubling that Foucault makes the syllabus while none of Wollstonecraft, Beauvoir or Arendt do.  Choices always need to be made, but to omit all of these is a poor one.  And I also share the view that ‘classics’ of social theory might include something from the Asian philosophers.

But a question: I take it that these students, or nearly all of them, want Asian philosophers translated into English, the lingua franca of the white male corporate plutocracy that runs their state and nation? (California is the home of the US “English Only” movement.)

As far as I can see, that is how they were served their Plato and Aristotle, their Marx and Weber–and their Foucault.  Or are Sanskrit, Pali and classical Chinese now more widely read among Cal undergrads than are Greek, German or French? Somehow I doubt it.

I have a feeling that the linguistic mono-culture of most American students is utterly invisible to them. That is how hegemonic blinders work.  White students don’t see their own race; American students don’t see their own language. They want their identities to be reflected in their syllabus.  But in one of the ways  most salient to the humanities and social sciences, they already are–and not to good effect.  Of course, ‘unilingual Anglophone’ is, for most American students, not a social ‘identity’ they are aware of, let alone one they care to reflect on and, perhaps, transcend.  (Ditto, of course, for social class.)

It seems to me that a college education that leaves students–especially in the humanities– linguistically crippled is an ‘epistemically poor education’ if anything is.  (I know: ‘What ableism!!)

It gets worse.

The students’ complaint is introduced, without comment, with this backgrounder:

“This call to action was instigated by our experience last semester as students in an upper-division course on classical social theory. Grades were based primarily on multiple-choice quizzes on assigned readings.

At first, I thought OK that is a pretty good reason to ‘occupy a syllabus’.  Many American college students are racking up huge debts, and for what?  A ‘classics of social theory’ course in which the instructors’ main tool of assessment is multiple-choice quizzes? (‘Hobbes is the foundation for unbridled capitalism: (a) Yes; (b) No; (c) I couldn’t get the reading.’)

It is easy to poke fun at the narcissistic self-involvement of privileged students who think everything should be a branch of “me studies“.  In truth, thinking about one’s own identity can be a first step in thinking about others’ identities–and then  a further step up the ladder to thinking about social identity as such.  But not if you think the problem is just the poverty of the reading list, as opposed to one’s own  impoverished ability to read beyond it.







The Refugee Crisis is not about Fairness

Governments have been shamed into addressing the refugee crisis in the Middle East and North Africa. The ugly idea that most Syrians, Eritreans or Afghans fleeing persecution and disaster are anything other than Conventional refugees is dissipating.

At the same time, another unhealthy idea emerges. It is the overweening concern with fairness. Not fairness towards refugees, but fairness among countries able to resettle them. It is a concern with who is doing more, or less, than their proper share as judged by some metric—by population, by GDP, by religious or ethnic makeup, or by geographical location. ‘Unfairness’ of that sort is the last thing we should be worrying about now.

Complaints of unfairness were first heard from front-line countries like Italy and Greece, and then Hungary, where the arbitrary fact of proximity to refugee-producing states was said to give them unfair burdens. The second wave of complaints held it unfair for Europe to shoulder a burden when rich countries in the Middle East—including Qatar, Saudi Arabia and the UAE—do so little. And now, perhaps most odious because it is the most trivial, Britain complains that, since it is not a member of the passport-free Schengen zone, it is unfair to expect it to help coordinate a resettlement scheme with other EU countries.

All of these complaints treat fulfilling one’s moral (and legal) duties as an unwelcome burden that is tolerable only if it is shared according to some comparative measure. The fairness-obsessive cares more about the relative burdens on rich countries than he does about the absolute burdens his inaction imposes on those fleeing persecution and destruction.

The resettlement of refugees is not a public good in the economists’ sense. It is not something like clean air, which requires the cooperation of many if it is to be produced at all, and not something like national security, which is open to all if it is provided for any.

Fairness does matter in addressing problems like that. For example, no one country or small group can halt destruction of the environment. Efforts short of a certain threshold are ineffective and pointless.  If a large group enters an effective treaty, then any other country can benefit without pitching in. To get around this we need to change the situation; but no one would agree on a mechanism to do that unless its terms were fair. For instance, no poor country would agree to accept perpetual poverty just because rich countries had already used up the allowable quota of fossil fuels.

Settling refugees is not like that. Any country can be effective on its own. If Canada had admitted Aylan Kurdi’s father (his aunt was already living in British Columbia), Aylan would be alive today. And in due course, his parents would be working, watching TV, buying food, paying taxes, and so on—in one of the richest and least populous countries in the world.   But wouldn’t that mean Canada had paid an unfair cost? If Canada resettled the Kurdis, the United States could have taken a free-ride on Canada’s generosity. And so it is with respect to all other refugees and all other countries.

But that is a repugnant way of looking at things. First, it is unclear that there are long-run costs to resettling refugees. New residents who are eager, ambitious and grateful to be here are an asset, not a liability. Second, even with respect to short-run adjudication and settlement costs, the relative burdens among countries are unimportant. What matters is the absolute ability of any country to assist. It is relevant that Greek government is in such a parlous state that it cannot cope with the influx. Greece can hardly cope with anything. But it is not relevant that the Hungarian government is in a weaker fiscal position than the German government. It matters whether a country is able to take refugees; it does not matter whether other countries that are equally or more able are doing as much.

Consider an analogy. Any swimmer able to help has a moral duty to save a drowning child. He may not look around the pool to see whether the rescue would be less of a hassle to someone else, and he may not let one child drown on the ground that he already saved one yesterday. If he can effectively help, he must.

Coordination among refugee-accepting countries is often required—but by effectiveness, not fairness. What matters is getting refugees settled, not how the costs of doing so are distributed (except, of course, where that is instrumental to getting more people resettled quickly).

According to the Dublin Regulation, refugees arriving in Europe must claim asylum in the member state in which they first land. The idea is to provide a determinate adjudication of their claims, and to ensure that applicants are not passed around among states. (There is always one ‘first state’.) But the fundamental duty to address an asylum request rests with any state to which it is submitted. If another state is already adjudicating it, that relieves others of the duty. But they cannot otherwise shirk by pointing out, even correctly, that another state would be less burdened by adjudicating, or that, if they wait, someone else will do it instead.

Waiting for a ‘fair’ distribution of the burdens of resettling refugees is immoral. Those able to act must do so, without regard to what others are doing save where coordination is needed—and they must do so now.

Wednesday’s Child: When ‘Normative’ becomes Normal

I read in the BBC News Magazine that ‘Nightly dreaming is a feature of the normatively-functioning brain – it is therefore part of our biological inheritance…’ Ignore the glaring non sequitur. What about ‘the normatively-functioning brain’? Is that a thing? Does the author, Shane McCorristine, ask his doctor if he has normative blood pressure?

Language changes, and the normalization of pompo-verbosity is a vector of change. That is also what gives us ‘gender discrimination’ in the place of ‘sex discrimination.’ Generally speaking, this usage is harmless. No one thinks that appointing four male drag queens to the UK Supreme Court is going to fix its current ‘gender imbalance.’

The tendency to avoid ‘normal’ in favour of ‘normative’ has two sources. One is the disreputable desire to make a banal point sound fancy or academic. The other is the reputable desire to distinguish the typical from the desirable.  But we don’t need ‘normative’ for that. Your gran knew what ‘normal sex’ means and, like Dorothy Parker, she also knew that ‘Heterosexuality is not normal, it’s just common.’   Of course, Gran would have been able to master the phrase ‘heterosexuality is not normative…’ and even, ‘heteronormative sexuality is not normatively normative’.   It’s not complicated, once you know the code.

During a period of flux, however, we need to disambiguate. In contemporary jurisprudence, pervasive ambiguities have made the terms ‘normative’ and ‘normativity’ practically unusable. An article entitled, ‘Explaining the Normativity of Law’ could be about almost anything: there is no way of knowing in advance, and often no way of knowing in retrospect either. Here are some of  questions you might find addressed under that title, together what seem to me the right answers, in telegraphic form.

  • Q: What is the relationship between laws and norms? A: Some laws are norms.
  • Q: What motivates people to conform to the law? A: There is no interesting general answer.
  • Q: How does the mere existence of law give people reason to conform to it? A: It doesn’t.
  • Q: How is it possible that the existence of a law could give people reason to conform to it? A: It depends on what kind of reasons you have in mind.
  • Q: What explains the fact law provides a general moral justification for coercing people? A: There is no such fact.
  • Q: What warrants the use of normative terms in stating rules of law? A: The same kind of things that warrant the use of normative terms in stating rules of football or grammar.

As you can see, questions about the ‘normativity’ of law could be about the character of laws, about motivational psychology, about semantics, about practical reasoning, or about political morality. (I address some of the moral questions here.)  There are probably other possibilities too.

This makes it difficult, especially for beginners, to find a safe path into contemporary legal philosophy. Pitfalls that have always been there are now obscured. In 1957, Lon Fuller asked how there could be ‘an amoral datum called law, which has the peculiar quality of creating a moral duty to obey it’. The question-begging was so obvious that any undergraduate could step around it. But today, a begger of Fuller’s sort might ask, ‘How is the facticity of law consistent with its normativity’? Would you blame a student for thinking that there is a deep problem here? Or for hating jurisprudence?

I’m afraid it is probably too late for ‘normative’; it is going the way of ‘gender’. The best we can now hope for is logic-chopping to keep the path as clear as we can. It is so normal to use ‘normative’ for ‘normal’—and a bunch of other things—that that has become ‘the new normative’.  You ‘could care less’? I hope so.