Self-help and Free Speech

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

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

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

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

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

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

 

 

 

An invitation to evil

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

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

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

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

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

Oxford needs quotas

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

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

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

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

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

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

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

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

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

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

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

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

‘What do you mean, “CHANGE”???’

Self-Identification, Sex, and Gender

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

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

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

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

The US as a borderline case of law

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

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

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

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

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

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

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

 

 

 

 

How not to get into grad school

“Hi Leslie,

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

Kind Regards,

[forename only]”

__________

“Dear Mr ********

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

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

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

Yours truly,

Leslie Green

[etc]”

ALSO, READ THIS:

 

A Gay-free Law School?

On August 14th, Trinity Western University, a small Evangelical college in British Columbia, announced that, given the choice between (a) creating an unaccredited law school that prohibited its members having sex outside heterosexual marriage and (b) creating a fully accredited law school open to lesbian, gay, and bisexual students  it would prefer accreditation to orthodoxy.  Its choice was prompted, no doubt, by reflection on  a pair of cases that TWU had argued up to the Supreme Court of Canada, claiming that the law societies of British Columbia and Ontario had, in denying accreditation, violated TWU’s freedom of religion.  The Court reaffirmed the broad authority of law societies to regulate the profession in the public interest, including the interest in diversity and equality, and held that the law societies’ decisions were reasonable on the applicable standards of review.

The cases are of significance to the relationship between administrative law and human rights, but my interest is in their handling of freedom of religion.  I deny that the accreditation process was even a prima facie infringement on freedom of religion.    The Court’s misapplication of its own standard of ‘sincere belief’, and its unworkable view of the boundaries of religious liberty, set misleading signposts in the increasingly politicized field of freedom of religion.

Religious schools and colleges often have restrictive codes of campus conduct, and many of these are, and should be, tolerated in the name of religious freedom and social diversity.   But TWU’s ‘Community Covenant’ was different.  TWU required all law students and staff, of whatever religion or sexual orientation, to abstain from all sexual intimacy outside heterosexual marriage, not only on campus but also off it, not only in term time but even at home, and over the vacations.  The comprehensive ban on extra-marital sex (along with some other restrictions) applied to straight students as much as gay ones; but straight students could, if they wish, enter a heterosexual marriage—the only kind acknowledged by TWU. Thus, although gay students were not prohibited from studying law at TWU, they would be effectively prevented from doing so.  No romance on campus—but also no going home at the end of a long day, in anticipation or relief, to the embrace of a partner, or to a night at the club with friends.   To speak plainly: as far as it lay within its power, TWU wanted to create a gay-free law school.  This is the ‘freedom of religion’ that a university asserted in court.

TWU did not, of course, assert a religious right to create a law school, let alone an accredited one.   Had their claim been discrimination on grounds of religion, this would not have mattered.  You can discriminate against Jews by refusing to hire them in your firm, even though being a lawyer is no part of the Jewish faith.  But TWU was not taken primarily as a discrimination case.   TWU (or more probably, its lawyers) played the American gambit of ‘weaponizing’ freedom of religion as a way to resist policies they oppose on many grounds: policies of social inclusion, diversity and gender equality.   Such opposition is ideologically consonant with many conservative religions; but that fact no more brings it under freedom of religion than it brings tax cuts under freedom of religion.

TWU’s theory seemed to be this:  (a) TWU had a sincere religious belief that gay sex is wrong, and (b) (quoting its factum in earlier litigation) it believed in ‘the importance of being in an institution with others who either share that belief or are prepared to honour it in their conduct’.’ Some undergraduate TWU students avowed they valued a learning environment in which others supported their values and said that, if given the choice, that is the sort of law school they would prefer to attend.

As a theory of religious liberty, this is a spectacular failure.  None of these assertions about the preferability of studying ‘in an institution with others’ who share one’s beliefs comes close to claiming, let alone justifying, a right to the extra-mural conformity of all other students, Christian or not.   Nor does a religiously-based preference for a certain policy satisfy the test for religious conviction set out in prior cases.  Neither authority nor orthodoxy is required, but in Canada the claim must involve a sincere belief, ‘having a nexus with religion, which calls for a particular line of conduct’(Syndicat Northcrest v Amselem  para 56, emphasis added).  The requirement of a felt compulsory character to a doctrine—something one must do, not merely something one would prefer to do—was reaffirmed in Multani  v.  Commission scolaire Marguerite-Bourgeoys (‘an individual must … show that he or she sincerely believes that a certain belief or practice is required by his or her religion’. (para 35, emphasis added))

The mis-match between TWU’s asserted belief and its proposed policy was glaring, and the harm to equality of opportunity, and dignity, for gay students (and others) was plain. On such facts, it is easy to see why the Law Society of British Columbia and the Law Society of Ontario, refused to accredit a law school proposing to operate that way.   The law societies have a duty to regulate the profession in the public interest, and in Canada sexual orientation is a constitutionally prohibited ground of discrimination.   It seems beyond doubt that, as regulators, the laws societies could have come to their decisions reasonably, and that the Court would therefore not second-guess them.

But how did the religious liberty theory even get to first base?   It is important to bear in mind that the issue is not whether TWU could teach law from a Christian perspective, or refuse to offer ‘Sexuality and the Law’ seminars, or ban rainbow flags or gay clubs from campus.   The issue is whether its religious freedom includes the right to prevent (without formally prohibiting) the admission of gay students and the hiring of gay professors, on the ground that that will produce the sort of environment that Evangelical students prefer to study in.

Canadian constitutional law follows the familiar pattern of assigning to the claimant the burden of proving a limitation on his right, and to the relevant authority the burden of justifying that limitation, if it can, through a balancing test.  There is controversy about whether lax analysis at the first stage impedes or confounds a fair and reliable inquiry at the stage of justification.  In the TWU cases, the majority’s laxity is evident and consequential.

A religious conviction or practice can merit protection even if it is unorthodox, idiosyncratic, or insane.  But it must have a ‘nexus’ with religion, and it must be sincerely held. In Amselem the Court held that a judge must ‘ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not an artifice.’  This offers poor guidance.  The contrast-class to ‘sincere’ (i.e. ‘insincere’) is here illustrated by a hodgepodge of examples none of which are necessary and some of which are insufficient as marks of insincerity.   One can be insincere just to be polite (‘I like your tie’), or as a conventional gesture (‘Nice to see you’), or to avoid conflict (‘I suppose Trump has some merits’), or to assert something for sake of argument (‘OK, agreed that free trade is ideal, nonetheless…’), or as an understood hyperbole (‘The World’s Best Burgers!’)  Religious beliefs are frequently asserted with such inflections of insincerity.  (As are many other forms of conscientious belief.) In particular, religious affirmations often function as conventional, rote markers of identity, or as strategic moves in a conversational gambit.   As such, they do not express the speaker’s sincerely held beliefs, but neither are they capricious, fictitious, artificial, or uttered in bad faith.    My feeling is that, in TWU, the majority felt timid about inquiring into the university’s sincerity because they wrongly associated an insincere claim with a claim in bad faith, or even with some kind of lie.

A better test for sincerity in this area is that that there should be correspondence between the asserted belief and the action or policy meant to serve that belief, that there should be a willingness to act on the belief where that is feasible, and that affirmation of the belief should not be merely conventional or strategic.  TWU’s assertion fails this test.  A sincere belief about the value of a religious educational environment does not reach its claimed right to exercise total control over the sex lives of all its students.   Moreover, although all students would be compelled to agree to the Covenant, the university exhibited no plans to supervise their conduct, and it occasionally hinted that it would not do so.  Was this a compromise with students’ rights of privacy, or a sign the Covenant was merely of conventional, expressive value, a signal as to what sort of people would fit in to the proposed law school?   That would be nearer a niche marketing strategy than a sincerely held religious conviction.  The Court should have tested this.

Then there is second, logical, difficulty.   There cannot be a right to freedom of religion that guarantees an environment in which everyone’s faith meets as few challenges as possible.    Religions conflict.   What advances one sets another back.  It is easier to be an Evangelical Christian in an environment without Anglicans or Jews (and, perhaps, gay people), but it is also easier to be an orthodox Jew without the background ‘mood music’ of Christianity.  Are ghettos the ideal?  Or do religions have the right to take their preferred environments along with them when, as in most modern societies, people move and mix? And what about internal minorities within religions?   There are already (closeted) gay students and  faculty in the undergraduate programme at TWU.   Are their rights satisfied by the Community Covenant’s contract of adhesion?  Is it enough that, if they don’t love TWU Law they can leave it, even if no other law school will admit or hire them?

Owing to the protean and competing nature of religions, it is a fantasy to think that we could fix the limits of religious freedom to ensure that such conflicts never arise.   But we can moderate them, and a good place to start would be with a sharper definition of freedom of religion.   Amselem and Multani, diligently applied, set the right direction, and help us understand why TWU was so misguided.  The traditional area of religious freedom comprises the liberty of beliefs and practices considered by the believer to be obligatory, together with such immunities and resources as are necessary to live openly and honestly in light of those beliefs.  John Locke—the Evangelical!—put the case well:

[S]ince men are so solicitous about the true church, I would only ask them here, by the way, if it be not more agreeable to the Church of Christ to make the conditions of her communion consist in such things, and such things only, as the Holy Spirit has in the Holy Scriptures declared, in express words, to be necessary to salvation; I ask, I say, whether this be not more agreeable to the Church of Christ than for men to impose their own inventions and interpretations upon others as if they were of Divine authority…’

Locke is speaking only to fellow Christians and only of communion, but his idea is of universal importance. It is one matter to ask others to share the burdens of toleration with respect to things one sincerely believes ‘necessary to salvation’; it is quite another to impose on them one’s own ‘inventions and interpretations’ of preference.   This resonates with the analysis offered by Justice Rowe, who concurred with the majority outcome in the case, but disagreed that TWU’s religious freedom had been infringed.  He wrote, ‘I do not see how the majority can have it both ways. The logic of their position seems to come down to this: the claimants have a preference for a practice that is not required, but is nonetheless protected by s. 2(a); however, as the practice is not required, but only preferred, its infringement is of little consequence. In my view, this analysis reflects an overbroad delineation of the right, leading to the infringement being justified too readily.’  That is broadly correct.

Perhaps a gay-free environment would make it easier for certain Christians to lead the sort of lives they want to live, including at law school.   But remember that a Jüdenfrei environment was thought to make it easier for another kind of Christian to lead the sort of lives that they wanted to live.   I not here suggesting any moral equivalence or slippery slope.  Yet the craving for uniformity, for a community free of the Other, is a symptom of moral failure.   In a law school it is a symptom of intellectual failure.  Were it ever endorsed by a court as an aspect of freedom of religion, it would also be a jurisprudential failure.

On ‘presenting as’ a man

A colleague reports to me that, in one of her lectures, a young fellow began his intervention with the following preface: ‘Speaking as someone who presents as a man…’

What are we to make of this?

It is tempting to make fun of it.  In the circumstances, he could just as informatively have said, ‘Speaking as someone who presents as white…’ or ‘Speaking as someone who presents as having tattoos…’ or, for that matter, ‘Speaking as someone who presents as sitting in the third row….’

I need to point out that he was (I am told) not someone who ‘presents as a man’ in any sense in which that phrase is illocutionarily happy.   He wasn’t, for instance, a cross-dresser, or transgendered, or a male-looking intersexual.  He was a just an ordinary white man (more exactly, a teenager), with visible tattoos, sitting in the third row.

The suggestion been put to me that he may have been trying to demonstrate a special kind of woke-ness. He was showing his awareness that gender roles are partly constituted by self-presentation.  But it is a bit hard to suppose that this would have come as news to anyone in that class, or even outside it.  Can there be anyone left, even among the bad guys, who does not know that manhood is partly constituted by, and in, the presentation of self?  (‘Man up!’, ‘Be a man!’, ‘What kind of man are you?’) And since everyone knows this it seems odd to make such a grandiose gesture in support of the obvious, especially in a university.

A different suggestion is that he may have been trying to undermine, by affirming with irony,  the epistemic authority of men.   The ‘speaking as’ locution is often used in the first person to claim theoretical authority, i.e. the epistemic privilege of one’s own perspective, as in: ‘speaking as a woman…’ , ‘speaking as a Jew…’ ‘speaking as a professor…’  So the boy’s preface could have been meant as an ironic, post-modernising riff on male-authority claims. Not, ‘speaking as a man’ (=> ‘I know these things!’), but speaking as someone who so presents and, in drawing attention to that  presentation, thereby implicitly undermining patriarchal authority.  How? If all there is to a man’s perspective is what follows from man-presentation, then people will come to see that those who so present don’t have any real authority.   What sort of epistemic authority could come from presentation alone?   If I want to know how things stand in string theory, I will ask a theoretical physicist—but I’ll stay away from someone who says he ‘presents as a theoretical physicist’. I won’t even go to him if I’m wondering what life is like as a theoretical physicist.  For all I know he may mean that he just plays one on TV.  If any epistemic privilege comes with that position, is the privilege of an actor, not of a physicist.

There is a further catch. Part of what it is to be a man, in our culture, is to not affirm or imply that manhood is achieved solely by or in presentation.   To put it loosely, a boy who prefaces his interventions with, ‘speaking as someone who presents as a man’ raises the suspicion, in that very preface, that he is not really (or not yet) a man.  For it is unmanly to self-consciously present as a man.  And if one is not yet a man but hopes to become one, there is a lot more work to be done than hedging one’s remarks with reference to a man’s perspective.  That suggests the intervention under scrutiny may have rested on a false presupposition about our concept of ‘a man’, namely, that presenting makes things so.  But because that is so obviously false, no one was likely to count against the authority of men the lesser, or different, status of someone who merely ‘presents as’ a man, i.e. who is not a ‘real man’.  The other guys in the lecture, on hearing his remark, were unlikely to blossom into self-reflection, ‘OMG—that’s me too, a mere presentation, a performance!’  More likely they thought, ‘WTF—him again.’  If so, male authority probably emerged unscathed.

So maybe we should revise the account.  Perhaps the interventional preface was intended by the boy only to disown his own manhood and any claim to authority that might come with that.  His point was not so much social as personal: ‘I hereby choose not to speak as a man [which I am], but instead as one who merely so presents.’   I am not so sure, however, that one gets to speak as a man-presenter just by uttering prefaces like that.  (It would have been interesting to know what transgendered students in class thought of his intervention.  Would they have thought it enough to permit him to speak as, or with, them? I have my doubts.)

Offhand, my feeling is that even the purely personal explanation is deficient.  It is clear that although most social roles involve the presentation of self, few are wholly constituted by self-presentation. That is why a white woman cannot just ‘present herself’ into being black, and why—a fact that now causes much personal misery and  conflict—a male cannot just ‘present himself’ into being a woman.

But this point goes deeper.  By the same token, one cannot just ‘present oneself’ into actually presenting oneself.  That is to say, there are also social criteria for a particular performance to count as a presentation of self.  When the artist Greyson Perry dresses as his alter-ego Claire (below) he is not presenting as a woman, not only because he is not trying to pass, and not only because he is failing to pass, but because Claire’s outfits and speech do not even amount to self-presentations. They are performance art.

https://i.pinimg.com/736x/a7/e2/04/a7e204228c611d561e33453a599fc205.jpg

So I am now thinking, with some sadness, that the boy in the lecture hall not only failed to undermine patriarchal authority, and failed to disown his own masculinity, he did not even manage to present as a (‘real’) man.  Perhaps he succeeded in presenting as the sort of white college kid with tattoos who goes around saying ‘I speak as someone who presents as a man.’  I guess that too is a kind of performance art.

I am not denying the urgent need for change in our damaging concepts of masculinity (and femininity), nor am I pessimistic about the prospects for change.  It is a question of ways and means.  We can change these concepts and, to the extent that our selves are constituted by them, we can change our selves. But we cannot simply ‘present’—let alone think—ourselves into personal, social, or conceptual change.  That is why Marx wrote, ‘Philosophers have hitherto only interpreted the world in various ways; the point is to change it’.   He did not write, ‘the point is to change it by doing philosophy’.  And were Marx with us today, I am sure he would say that self-conscious self-presentation is about as effective in producing real social change as what he, somewhat unfairly, dismissed as ‘philosophy’.

How to improve Oxford’s interviews

In my last post, I suggested that we can’t understand the persistence of the Oxford admissions interview without understanding its ceremonial function. It is an initiatory rite that expresses and secures the power of  tutors who get to select which undergraduates they would like to teach.

This conjecture has not met universal favour among my colleagues, or at least not among those who are interviewing this week.  They say, rightly, that I exaggerate the lack of uniformity among subjects when I describe our system as ‘chaos’.  Isn’t our Common Framework for admissions a steadying force? Others mention that this is ‘not a good time’ to cast doubt on the fairness or effectiveness of Oxford admissions.   And several tell me they are adequately warned against unconscious bias and that they are not, in fact, conscious of any unconscious bias in their own interviewing.

There is no doubt that admissions interviews could be, and historically have been, much worse (including when I used to do them).   Still, I think we should abandon them, for the reasons I gave.

Oxford knows how to admit talented students without the ritual. That is how we already admit people to our elite, tutorial-taught, postgraduate degrees, including the B.Phil. and B.C.L.: centrally, on the ‘paper file’, and without interviews.  Many of them come to Oxford without ever having had a tutorial or anything like one, yet they learn how to learn in our system.   Indeed, many of their tutors gave their first Oxford tutorials without ever having had one; they too learned. Yet we persist in the fiction that only by seeing the cut of their jib can we be sure that applicants can work the magic of an Oxford tutorial.

In any case, if interviews are to persist, there is one way we can improve them: No one should interview those they will have the blessing (or burden) of teaching: nemo iudex in causa sua. If an applicant really is incapable of learning in our system, let that determination be made by someone other than the tutor who will be charged with trying to help them.   This argues for more centralized, faculty- or department-led, ‘blind’ interviewing.    Perhaps it even argues for the inclusion of non-specialists (academics in other subjects, or alumni, or even students!) on our admissions panels.

I do not pretend that eliminating or improving interviews will make Oxford more representative of the communities we serve. For that, more drastic measures are needed.   I shall sketch the case for one of them in the New Year.

In the meantime, all good wishes for the holidays, and my sympathies to those of you who are interviewing, or being interviewed. Best of luck!

Why Oxford’s admission interviews persist

A week from now, one of Oxford’s annual rituals begins.   Clueless teenagers arrive in force to be interviewed for an undergraduate place.

I call it a ‘ritual’ because admissions interviews are not really functional; they are ceremonial.  They take place in buildings that, unless you live in Downtown Abbey, seem utterly alien.  Directions are given in code (‘call at the Porter’s Lodge’, ‘meals will be taken in Hall,’ ‘await instruction by the Old Smoking Room’…). The interview is a minuet in which smiling tutors and grimacing candidates dip and swing around questions that are supposed to distinguish minds that are truly graceful from those that are merely trained.  None of it makes our admissions process more accurate, reliable, or fair.

Oxford has many rituals that are harmless, even valuable: gowns, punting, Evensong. The interview is not among these.  It adds expense, work, and stress for no benefit. But compelling empirical evidence of unconscious bias, negative and positive, in face-to-face interviews has no impact on the high priests of the process, the admissions tutors. Some of the most inquiring and skeptical minds on the planet display a touching faith in their own ability to spot a diamond in the rough while never being dazzled by the flash of fool’s gold.  The ritual is hated by applicants, hated by the press, and increasingly hated also by the government.

So why does it go on? Few are actually proud of the fact that, year after year, we admit a vast disproportion of applicants from private (i.e. fee-charging) schools. Only 6.5% of the cohort are educated in such schools, but last year they made up 41% of Oxford’s intake. (The average for all UK universities was only 10%.)   And few of my colleagues are unaware that their counterparts around the world do not have the burden of interviews.

In part the explanation is stasis: ‘”How many Oxford dons does it take to change a light bulb?” “–What do you mean, ‘change’?”’

In part it is chaos: Oxford is a federation of 38 universities, its colleges, without a coherent overall admissions policy.

But I’m afraid that another important part of the explanation is power. Admissions tutors do not want to yield the power to choose the students they would like to teach over the next three or four years of their careers. The interview is a ritual that expresses, secures, and celebrates their power.

It is not generally understood that, at Oxford, those doing the interviewing are those doing the teaching.  Nor is it understood that those at the top of the hierarchy, the Professors, normally have no obligation to teach or admit undergraduates.   It is the Tutorial Fellow, overworked and often underpaid, that does the heavy-lifting. (Oxford, unlike many leading universities in the US or Canada, has not yet shunted undergraduate teaching onto graduate students.) That is why they are so keen to keep control over those they admit, and why a dysfunctional and damaging ritual continues.

But the secret is starting to leak out. British author Alex Preston, writing in what is, I think, intended to be a defence of the interview system, openly acknowledges that he was crammed for it: ‘I was prepared for my interview by the genial headmaster of the Sussex state secondary I attended. We met most mornings in the weeks leading up to that fateful October day and he’d fire questions at me about Eliot, Pound, Woolf and Joyce…’

Preston is touchingly unaware how few applicants have a ‘genial headmaster’ able to coach applicants for ‘most mornings’ over a period of weeks.   But Preston does have enough self-awareness to figure out what the Oxford interview is really for:

the interview was about my potential tutors deciding whether I was a pupil who would manage to stick out the three years of essays and exams, whether I’d bore them in tutorials, or infuriate them…’

An ineffective ritual that leaks bias into  admissions is sustained by the tutors’ desire not to admit students who might ‘bore’ or ‘infuriate’ them (or, I suppose, who might threaten or offend them).  Even our students have started to figure it out.

What is to be done?   We are unlikely to abolish interviews (see above, under ‘change’ and ‘chaos’); but there are  ways to limit their damage. I shall explain two in the next post.