Farmers’ Intent

How should constitutional cases be decided?  We sketch elements of a new theory, Farmers’ Intent:  Among the legal outcomes permissible under a ‘Living Tree’ Doctrine, choose any that could seriously be intended as an outcome by a reasonable farmer now working the land of the jurisdiction.

Owing to space limitations, we cannot provide the full proof of FarI. It draws support from the Kant-Mill Theorems, afforced by lemmas of Quesnay, Mirabeau, and Turgot. But an intuitive sense of its shape may be provided by considering other theories of interpretation:

Living Tree: Although the Living Tree is one element of any correct theory of interpretation, its incompleteness was demonstrated almost a century ago by Sankey Laboratories ([1930] AC 124, [1929] UKPC 86). Sankey et al showed that LT is necessary because any constitutional provision that is authoritative at T0, may not only be incomplete, but will lose legitimacy no later than Tn. (This is a consequence of the Mortmain Result, established already in 1279 by E. Plantagenet). We now know that Mortmain itself is a specification—we omit obvious steps—of the principle DML (diminishing marginal legitimacy). The Sankey team also showed that organic development has ‘natural limits’. Objections that LT does not deliver a unique juristic ‘result’ are misguided. Observational studies show that every living tree must have more than one leaf. The proof of LT does not rest, as beginning students assume, with the good interpretations it generates, but with the bad interpretations it cannot generate (e.g. that women are not ‘persons’—again, Sankey 1930, and similar results below, under OPM)

Framer’s Intent:  The fallacies in Framer’s Intent selection are easily shown:  

(1) There are constitutions that have no framers.

(2)  In any constitution having ‘framers’, the extension of the set of framers cannot be a question of law, which law did not exist at T0, the Framing Moment.  (This is a corollary of Kelsen’s GN-Reduction (1937)).  It follows that any ‘framer’ purporting to frame does so without legal authority.  Not having such authority at T0, it cannot be transmitted to later authorities. (For the simplest proof, see Nemo dat quod non habet: Justinian et al, 528-534 CE). True, authority could be assigned retrospectively to a ‘framer’, thus enframing him. But the retrospective intent of a non-framer that F be treated as framer at T0, cannot itself be derived from FI. Thus, if FI is sound, FI is unsound. QED.

(3)  (The more familiar objection that there is often no fact of the matter about the truth of FI(L) is irrelevant. If there is an interpretive gap, LT still governs, and its outcomes remain legally permissible: deontic closure.)

Original Public Meaning: OPM was originally meant as a way to derive the (supposed) results of FI (e.g. that women are not persons) without relying on the absurdity of FI.  The intuition was that, although there are constitutions without framers, necessarily all (legal) constitutions regulate a public. OPM directs judges to select that interpretation of L that would be least surprising to a representative, uninquisitive, member of the public who could have heard of L, at the most remote historical distance from the public that the Constitution now regulates. (In OPM theory, this is called ‘democracy’.)

Legal scientists remark on the difficulty of estimating (OPM)L. This is exaggerated.  As Sankey’s team demonstrated, there was no evidence that uninquisitive people ever considered women ‘persons’.  The result had been confirmed at many other sites, and accords with such well-known findings as that of Billings-Brown Consultancy, who showed (1896) by methods never controverted in OPM, that ‘in the nature of things, [equal protection of the laws]  could not have been intended to abolish distinctions based upon color.’ (163 U.S. 537)

The crux, then, is whether any interpretation that is consistent with DML, survives LT, and is also consistent with OPM, dominates every other permissible interpretation. That seems possible. Is it possible that it is necessary? Repeated attempts to even sketch a proof elude us. (The Biden-Schumer Conjecture, that OPM is extensionally equivalent to any result generated by a virtual machine emulating the Mercenary Toy Bat™, though plausible, has not been proved either.)

Farmers’ Intent (FarI): Now, a standard application of Hume’s Pitch-Fork (=df ‘consign sophistry and illusion to the flames’) rids us of both FI and OPM, leaving logical space for FarI. Essentially, FarI combines results by Smith (1759) and much earlier conjectures by Y. de Nazareth (ca 28 CE), with the Kant-Turgot series noted at the outset, to force a quasi-ordering on the set of LT-outcomes. The only further premise we need is that although not all constitutions have framers, all constitutional orders have farmers.  This seems intuitively plausible, and is supported by early efforts in constitutional theory (e.g. Hammurabi 1754 BCE). To note:

  • FarI, unlike FI and OPM, can be proved consistent with DML.
  • The reasonable Farmer has properties analogous to those of the ‘reasonable person’ and, indeed, to the representative person in a fairly constructed ‘original choice position’ but, unlike either, does not admit of a purely procedural interpretation, because:
  • The Reasonable Farmer is a person who (d1) has to farm, that is, to actually do work rather than, say, extract rent or commit fraud; (d2) and in the here and now; (d3) under conditions of uncertainty; (d4) so makes reasonable provision for herself and others in case of plague, fire, drought, tyranny or other calamity, and (d5) therefore accepts that government regulation, including constitutional regulation, need satisfy no further test of legitimacy than LT and be morally sound.*

(In a forthcoming paper, we show what FarI entails for judicial appointments, emoluments, and term limits. Though preliminary, these results are as convincing as any of the other bullshit that passes as constitutional ‘theory’ in the law reviews.)

*This paper is part of the Judicial Plower Project, at whose lack of financial support we are not surprised.

Internal threats and outside agitators

In my last post on academic freedom, I suggested that alongside ‘the tyranny of public opinion’ in universities we need to consider the dictatorship of money and influence.  Universities always needed money, and public money came with strings.  But now we are symbiotically dependent on private money: tuition fees, corporate grants, work-for-hire, and always and everywhere the philanthropy of the rich, especially, rich alumni. 

Payment schemes are overtly transactional: fees for tuition, grants for research.  In a weirdly aristocratic way, universities regard these as more suspect, more degrading–as if the family had married into ‘trade’–than alumni donations and legacies. But it seems to me that the closer university support comes to a market transaction (some fresh tit for a bit of ancient tat) the more above-board things are.  There will be CFPs, competitions, contracts, accountants, and the possibility of regulation.  The downside is that tuition turns students into consumers who must not be disappointed, and non-productive subjects and departments become impoverished.

I have served on ‘development’ or ‘advancement’ committees in every university I’ve worked at, and every charity with which I volunteer. Although I am (as the late G.A. Cohen would put it) extremely rich as the world population goes, and even quite rich as university professors go, I am not all that rich. Yet for reasons I have never understood, the odiously rich often get on with me.  I can make a million pounds piss its pants with laughter, while standing it Château Yquem for Château Yquem, and crooning folk songs in any of four languages. So I know about ‘advancement’ culture.  

It is not overtly transactional.  It is covertly transactional. The covert part is the problem. The only side of the exchange the public ever sees is a name on a library or a professorship.  But that is only the bill before VAT.  The tax has still to be paid.  That is accounted in influence: the understanding that a call will be answered, a meeting held, an opinion considered, a direction affirmed or thwarted.  Donors need not ask for influence anymore than the treasury need ask for VAT at the till.  It is common knowledge that it must be paid. 

Covert transactions can work smoothly, and also innocently.  But now and then a donor feels disturbed, even cheated, and then trouble begins.  He may have misread the price-tag. He may not only have paid for things to happen, he may think he bought the right that things not happen.  Faculty working in good faith are then blinded-sided by constraints they never knew existed.  Pressure is applied.  Sometimes it causes bruises that show in public.  Like a battered wife, a pusillanimous dean tells everyone she walked into a closet and that her husband still loves her. And, in truth, she does crave the creature comforts of his family mansion.

As in battered-wife syndrome, escape from a covert transaction gone bad requires publicity.  But how can that happen?  Those who know most are the most involved, a small group.  And a university scandal can affect everyone there, including innocent bystanders. Many have an interest in shutting down scrutiny.  The first screw they tighten is the appeal to confidentiality.  (A covert transaction, get it?) Then the unctuous appeal to ‘collegiality’ is wheeled in, holding off the use of actual ostracism until the top blows off.  You need to understand just how badly concealment now matters.  Actually, I doubt you can understand unless you have been there.

In the last post I offered examples of external assaults on academic freedom.  This is how a typical internal assault develops.  And that is why—if I may here answer some emails—it falls to ‘outside agitators’  like me to intervene.  (Email 1: ‘It’s none of your fucking business!’) In the cases I wrote about, it was the fucking business of the academic deans and presidents who had most to lose.  It was the business of everyone in their faculties with a shred of integrity. In one case, it is now the business of the judiciary.

But it is also the business of the lawyers and academics around the world including the Butlers, the Chomskys, and the Falks who now demand transparency at the University of Toronto, (Email 2: ‘So what? They sign every protest’.) It is the business of professors like the Leiters who take time out of their work to make the covert overt and to ensure that news from tiny fiefdoms reaches others in what we still, optimistically, call the ‘academic community’. (Email 3: ‘You proffesors [sic] getting off on your blog. If you know so much say that name.  I know why, you Zionists [sic] always protect.[sic]’ {Author’s note—does the sender not have access to Google?}

Probably, for many readers of this blog, it is your business too.

The Real Problem is…

Whenever my students write of some dispute, ‘The real problem is…’ (poverty not racism; sovereignty not control…) I put in the margin, ‘Yes, that is one problem.’ Important problems have many aspects. When we work at one, we forget others.  Yet if we do want to rank them we first need an idea of what is on the list.

Some people think ‘the real problem’ of academic freedom in our universities is ‘cancel culture’, or a lack of ‘diversity’ in ideas, or the ‘colonization’ of the curriculum.  Well, those are some problems.  But it is strange that anyone thinks they are the only problems, let alone ‘the real problem’.  They are prominent only in a few fields.  Their restrictions on inquiry are cultural, what J.S. Mill called ‘the tyranny of the prevailing opinion and feeling’.  (Do we need to explain to people with PhDs what a metaphor is?)

Admittedly, culture can harden into policy. It can also drive those who make policy.  What is the culture that dominates among vice-chancellors, provosts, and deans?  Not, I need to tell you, liberal hegemony. It is was it has always been: money and influence.  This is what drives which departments (and professors) are rewarded.  It determines student numbers (and thus, how much time is left is for scholarship).  It can  lixiviate job searches into power and influence.  Two examples:

In June, Toronto’s B’Nai Brith petitioned the President of York University to ‘demand [sic] that Associate Professor Faisal Bhabha no longer teach any “human rights” courses at York University’s Osgoode Hall Law School.’   Bhabha had allegedly twice compared Zionism in its present form to white supremacy in the US. A harsh but common and lawful view that can be heard every day on Israeli campuses. The sledgehammer then struck quietly, in the silence of a Dean and President who lacked the courage, or principle, to robustly defend their faculty. (Not the first time that York had been humiliated this way by its administration.)  The ‘tyranny of prevailing opinion’?  Not at Osgoode Hall (where I taught for twenty years).  Supported by his faculty union and colleagues, Bhabha was hung out to dry by those who owed him a duty to protect his academic freedom.

Another example. The press reports that Toronto’s other law school just terminated a job search after, it is alleged, a judge and prominent donor sitting on Canada’s federal Tax Court had a quiet word.  He or she expressed displeasure at the (unanimous) recommendation that Dr Valentina Azarova be appointed Director of the International Human Rights Programme. The Judge is alleged to have complained about her views on human rights abuses in Israel.  Law Dean Edward Iacobucci decided not to appoint, and terminated the search. The Chair of the search committee resigned, followed by every single member of the faculty Advisory Committee of the Programme.  ‘Tyranny of prevailing opinion’?  Clap your hands if you believe.

Dean Iacobucci is reported to have explained, first, that ‘The uninformed and speculative rumours have reached such a level that, no offer of employment having been made, the University has decided to cancel the search for a candidate at this time.’

But the pertinent question is whether the ‘uninformed and speculative rumours’ are true, not whether  they became such a nuisance, or risk, that the Dean needed to cancel the search.  Today’s press now reports [paywall] that ‘In a written statement to what he described as the ‘faculty of law community’… Edward Iacobucci did not deny that a Tax Court Judge contacted the administration to express concerns about the candidate, Valentina Azarova.’

Chew on that, over your hegemonically liberal chai-soy lattes.

A law dean did not deny published reports that a sitting judge attempted to influence a University hiring decision.  Presumably, then, he also did not deny that a judge had found out, or was told, who was on that short list?  (Even the University of Toronto law school is not yet required to get pre-clearance from the judiciary.)  And, presumably, if ‘contact’ was made, it was made with someone.  So who was listening (reluctantly? anxiously? eagerly?) to the judge’s ‘concerns’? It was not the faculty members of the Advisory Board. They resigned in protest.

In this scandal, the broader public is not concerned with academic freedom but with judicial integrity.  If a judge as much as attempted–or even could be perceived to have attempted–to  interfere with academic hiring for these reasons it is an offence against judical ethics.  Every Muslim, Palestinian, or Arab litigant and lawyer before that Court would have reasonable grounds to doubt its impartiality.  (That is now a matter for the Canadian Judicial Council, to which formal complaints have been made.)  But there is  a broader issue of academic freedom at stake, one that reaches far beyond Dr Azarova’s disgraceful rejection.

Every member of the Advisory Committee who worked on that file only to learn there were invisible constraints on their decisions, wasted their time. That is not a trivial matter; you can’t do  research without time.  Worse, every Palestinian–and many Muslim and Arab–students and faculty  at the University will now feel on notice that, if a private ‘contact’ should be made from an influential figure who disapproves of a  line of inquiry about the Israel/Palestine conflict, then that ‘contact’ can expect an audience from the University of Toronto Faculty of Law.  There is now precedent.  You can’t get a case heard in the Tax Court that easily.

And so it goes. What then is the ‘real problem’ of academic freedom?  There are many.  But in all-too-familiar cases like this one, it has nothing to do with the hegemony of liberal ideas on campus.  In fact, several well-known, soi-disant, liberals at the law school know enough to keep schtum.  Now think about that, too.  You’ll find something else to put on your list of threats to academic freedom.

Why study jurisprudence?

The university year begins soon, and my students will be having what will be, for most, their first encounter with legal philosophy. (Online, if you’re in my own seminar or lectures. The pandemic is not going to disappear.)

At Oxford, as in much of Europe, jurisprudence is a compulsory part of our law degree. Since competent lawyers graduate from perfectly adequate law schools like Harvard or Yale, you may wonder why you will be made to study some philosophy.  I will explain.

My non-jurisprudential colleagues may tout the non-specific benefits of philosophy.  You will be promised transferrable skills that carry over to subjects like contract, constitutional law, or conflicts.  What skills?  The capacity to think: to read with care, to reason systematically, to parse complex arguments, to notice subtle distinctions. The objection is glaring: if you haven’t been able to develop these skills working with legal arguments, how will you ever master them working with philosophical arguments?

In terms of ‘skill sets’, law and philosophy are close cousins.  They differ mainly owing to the fact that, in law, finding a relevant authority strengthens your case, while in philosophy the ‘appeal to authority’ is the name of a fallacy.  So it would be strange if you found that law comes easily while jurisprudence is arduous just because there you need to read, think, and test arguments.

But good students are thrown off balance by the fact that in legal philosophy there are no authorities.  No practical authorities of any kind–no one before whom you have to bow (unless you sign up to a dogmatic religious jurisprudence). As for our theoretical authorities— genuine experts whose say-so warrants credence–they are limited to a few technical and historical areas of the subject.  It is a feature of most legal philosophy that you need to do it for yourself, though in the process you can have the pleasure of doing it in the company of some of the most penetrating thinkers in history, from Plato to… well, let’s just say to many of my friends and colleagues.

But pleasure isn’t everything, and maybe the intellectual pleasures aren’t your thing. For some of you, push-pin may really be just good as poetry. (I will explain that reference in my lectures. For now, substitute ‘Minecraft may be just as good as Mozart.’)   And if that is true of you, it is absolutely fine: people differ. I’ve lived in England for thirty years and never once (intentionally) seen a cricket match. So just ignore imperious professors who tell you that X is intrinsically fascinating and fruitful, whereas Y is objectively boring and sterile. They don’t get out much.

Now, someone who did get out–in spite of a very difficult life– and who understood more about life itself than many of your professors (perhaps because his own life was so very difficult) was the writer David Foster Wallace. He also knew the answer to your question about philosophy. At a now-famous graduation address, he said this about the value of the liberal arts:

‘[I]t isn’t really about the capacity to think, but rather about the choice of what to think about.  … How  to  keep  from going  through  your  comfortable,  prosperous,  respectable  adult  life  dead, unconscious,  a  slave  to  your  head  and  to  your  natural  default-setting of being uniquely, completely, imperially alone, day in and day out.’

I’m afraid this applies to you, in spades. Lawyers have cultivated ways of being imperially alone together.  Mention ‘sovereignty’ in England and most lawyers tend to think in unison of, and with, Albert Venn Dicey.  In US law schools, every ‘theory of free speech’ struggles in the shackles of the First Amendment and its labyrinthine doctrine. What could be more dead, unconscious, and lonely than that? Sovereignty and free speech are things that matter. If they matter to you, why suppose that everything worth knowing or valuing about them begins (and usually ends) at home?

Legal philosophy is here to remind you that you are not a slave to your own (legal) head, that there is an escape from the ‘default setting’ of your own little legal system, however profitable and powerful it may be.   It will explain how something that is true ‘legally speaking’ may be utterly false.  It will show you the difference between the way things are around here and the way things ought to be. It may even help you envision the way things could well be, if only we cared enough.

That is why you will study jurisprudence.

Good luck with it!

When ‘good faith’ goes bad

In law and in life, it matters that people act ‘in good faith’.  Bona fides varies in different contexts, but the main idea idea is that beliefs expressed are sincerely held as true or acceptable, and that cooperative actions are undertaken in a spirit of honesty.  That sounds like a good thing.  Sometimes it even excuses or mitigates conduct that would otherwise be wrong: ‘At least he was acting in good faith.’

The law of contract carries an implied covenant of good faith: the parties are held to a presumption that they deal honestly and fairly with each other, aiming for a mutually agreeable deal, not a plot to destroy someone.  In employment law, one cannot refuse reasonable accommodations for workers with disabilities, though the fact that something is a ‘bona fide occupational requirement’—genuinely necessary to the job—will deflect a claim of discrimination.  (An airline need not hire a blind pilot—not for now, anyway.)

But satisfying a principle of bona fides can be neutral, or even bad, in particular circumstances.  Knowing that someone has said something, or done something, in good faith can make things worse.

Some things said by politicians are said in bad faith. Perhaps some Russians believe homosexuality is a Western import, that gay men prey on children, and that homosexuality is contagious.  But I doubt Putin really believes that.  He may be evil, but he is not stupid, as current leaders of the superpowers go. Putin says and supports these things only to pander to his ‘base’, thinking—perhaps rightly—that some of them believe it.  But I think he knows it is all malarkey, and I will assume he came to know that in the right way for it to count as knowledge. Putin’s pandering is in bad faith; it is strategic, aimed not at sincerity or truth but at power. So we subtract moral marks for pandering and dishonesty, but not for being irresponsible in forming his beliefs. Putin knows the truth, and we can give him one mark for that. 

Suppose, now, that that a western Lawyer campaigns against non-discrimination protections for gay people, resists teaching children about the variety of human sexual interests, and opposes same-sex marriage.  He labours, not on behalf of a paying client, but intellectually and politically to keep gay people in their place. Still: he is not pandering.  He is aware that his views stain him (in societies that aspire to any form of liberalism) as comical, even contemptible.  There is hardly anyone left with such views to whom he might pander.  But—I here assume—the beliefs on which he bases his views are not only manifestly false, but also that it is open to him to find that out.  He just fails, as philosopher John Rawls puts it, to bear ‘the burdens of judgment.’  He does not eschew lively argument.  Far from it–he is a model Millian controversialist. He knows how to assemble propositions into paragraphs that look a lot like arguments.  Some even turn out to be valid (though not sound). He never insults or growls; he calmly explains and argues.

In my hypothetical, Putin gets a moral minus for monstrous conduct, but a modest plus for knowing the truth. Lawyer, however, gets two minuses. Like Putin, he promotes policies that are unjust and inhumane.  Unlike Putin, he sincerely believes them, and in all bona fides.  Putin grasps the truth but refuses to let it shape his conduct. Lawyer persists in falsehoods (a strict liability offence in this case) with complete sincerity. He acts in good faith, but here bona fides makes his character, and our world, not better but worse. If Lawyer were just a hack or a hired gun, we might care less. But he believes this stuff. Putin has a vice in his heart. Lawyer has a vice in his heart, and another in his head.

And so it is with some who believe: that blacks have failed to pull themselves up by their bootstraps, that the police preserve the rule of law, that vast concentrations of wealth trickle down to the greater benefit the poorest, that face masks poison us with carbon dioxide, and that COVID-19 will disappear like magic, one day this summer.   

Odd as it must sound, I actually hope such folk know that all of this is false, and that they are just displaying their colours, taking the piss, or trying to grab a minute’s attention online.  In that case, we may have something to work with.  But I’m sometimes afraid that their beliefs and attitudes are sincere, and held in complete bona fides. If that is right, we are in big trouble.

The little statue that could

None of us achieved distinction. My father’s people were labourers drifting around Donegal, Derry, and Greenock, wherever work could be found.  My mother’s were scarcely more elevated.  They farmed the West of Scotland, produced one Free Church minister, several masons (and a lot of Masons), and a couple of petty officials. They occupied a lowly niche in the absurd hierarchy of Scotland’s clan system.  Among my seize quartiers, only my mother’s great-grandfather, Hugh Laird, was memorable.

When he was seventeen, Laird joined the 72nd Highlanders and served 12 years in India, based at Mhow as one of the ‘kilties on camels’ who helped brutally suppress the so-called ‘Indian Mutiny’ of 1857-58.  There is no statue to Laird, though the 72nd are magnificently honoured on the Castle Esplanade in Edinburgh.  But Laird received the medal and clasp above, and his name appears on a small memorial statue in our village.  As a child I knew a little about him (but a lot more about the uniforms of the highland regiments).

Yet it was two artefacts—a medal, and a village statue—that created an elective affinity between me, Hugh Laird, the 72nd, and India. You will not be surprised to learn they did not make a schoolboy reflect on Empire, race, or injustice. (You may be surprised to learn that the dispossession, famine, and continuing poverty among my father’s people had already done that.) The only ‘lesson’ I took from Laird is that it was possible to escape. Uniquely in his generation—and very nearly uniquely until mine—Hugh Laird went somewhere else. The rest of us remained within ten miles of where we always had been. My mother’s family were practically indigenous.

But there was a much later ripple.  As a university teacher, I became curious about 1857, the Raj, and even about medieval Indian philosophy: I spent five or six years trying to think through its bearing on the morality of speech.  I planned a book, though other things kept getting in the way of writing it.  When people asked how I ever got interested in any of that, I realized—though rarely said—that it had to do with one old medal and one little statue.   Any number of other things could, and perhaps should, have been more powerful spurs to my interest:  one friend was a Professor of Commonwealth History, another a Professor of Sanskrit; I made my own living as a Professor of the Philosophy of Law.  But for me it took a personal, material connection to care about an old injustice and how we might now help remedy it.

There is nothing generalizable here. That is my point. When Simon Schama says it is silly to suppose that removing statues might ‘erase’ history and that, ‘It is more usually statues, lording it over civic space, which shut off debate in their invitation to reverence’, all I can say is that may be true in some cases. But neither a grand statue in Edinburgh, nor a tiny one in a Scottish village, were able to silence me. Just the contrary. More than anything else I encountered in life, they established a link between me and a country I never visited, an injustice my people never felt, and a civilisation I could admire only from a philosophical distance. I certainly had views about England and Empire, but the racism and oppression I worried about had previously involved only its other provinces.

That tiny connection made me care about what had happened at Mhow and Lucknow, but they never made me proud of it. I never revered the Raj, the 72nd, or even Hugh Laird.  Public artefacts bear social meanings; but how those meanings affect us can be hard to predict. I can think of no more reason why we should be ‘originalists’ about the meaning of statues than about the meaning of statutes.  It rarely matters what a statue meant; what matters is what it now means–and that is often a complex matter.

Your freedoms–and theirs

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The COVID-19 pandemic will end when enough people acquire immunity or die, or when we create an effective vaccine (and enough people take it).  Until then, our only hope is to slow transmission by testing, tracing, and isolation; masks, handwashing, and ‘social distancing’.   But most are weary of this, many are anxious, some are angry.  A few now say the cure is worse than the disease, not because of the health or economic costs of the mitigations, but because they involve giving up something beyond price—freedom.

The first thing to notice is that most of our actual mitigation strategies are advisory or prohibitive, not preventative.  Advice limits no one’s freedom, and a legal prohibition, or the imposition of a legal duty, limits freedom only when it is enforced or when a credible threat of enforcement renders an action infeasible. In most places, with respect to most strategies, enforcement remains the exception.  Advice and prohibitions make some people angry, but you can be very angry while remaining perfectly free.

The second thing to notice is that, when freedom is at stake, it appears on both sides of the equation.  Ill health itself limits our freedom to do a wide range of things, and not only for the twenty percent of victims who end up hospitalized or who suffer irreversible lung or kidney damage.  Weeks of poor health is a real restriction on anyone.  Those who refuse precautions or who insist on large indoor gatherings impose on others the risk of a freedom-limiting illness.  The others can avoid that risk only at the sacrifice of their own freedoms, for example, by staying home to avoid the negligent and the reckless.  In a pandemic, our freedoms are interlinked.

Admittedly, there are disagreements about freedom.  Some philosophers say these turn on people having different ‘concepts’ of freedom; others say that we have various ‘conceptions of the concept’ of freedom. (It can only be a matter of time before someone says that we have different ‘concepts of a conception of a concept’ of freedom.)  My own view is parsimonious.  I think we are free to do what we can actually do, and not free to do what we cannot do because we are prevented from doing it or because the action has been made infeasible.  What we disagree about is why freedom and unfreedom matter.

Some people hate restrictions just because they hate anyone making them do things they don’t want to do. (Teenagers, and some libertarians, tend to fall into this class.)  For others, unfreedom is of concern only if it also limits their autonomy, the power to shape their lives to fit their needs and character, as JS Mill put it.  Being forced to wear a mask while shopping may outrage the first group, but not the second because (save in special cases) wearing a mask does not limit any further activities.  A third group have still narrower concerns.  They only chafe under unfreedoms they judge to be imposed arbitrarily or unreasonably, in which cases they think they are being ‘dominated’.  These are all real disagreements, but they are fundamentally disagreements about the value of particular freedoms, not about freedom’s nature.

The disagreements are nonetheless likely to affect people’s willingness to comply with measures necessary for linked freedoms to be preserved.  We tend to imagine that the free-rider (the non-masker, the crowd-basker, the anti-vaxxer) is always a simple cheat trying to take the rest of us for suckers.  There are plenty of those.  And I doubt we can demonstrate that they are always making some kind of logical error or disappearing into a self-defeating vortex of egoism.  We need other tools to deal with cheaters.

David Hume—no pessimist about human nature–recognized this when he wrote about the ‘sensible knave’ who thinks it reasonable to reap the benefits of social cooperation while refusing to chip in on the costs.  ‘That honesty is the best policy, may be a good general rule, but is liable to many exceptions: and he, it may perhaps be thought, conducts himself with most wisdom, who observes the general rule, and takes advantage of all the exceptions.’  Hume’s answer is only this:  ‘I must confess that, if a man think that this reasoning much requires an answer, it would be a little difficult to find any which will to him appear satisfactory and convincing.’  That is: if you find yourself dealing with someone who genuinely wants you to prove, on his own premises, that he shouldn’t cheat, you will come up dry.  But Hume wondered how many such people we really encounter.  Almost everyone has some fellow-feeling.  The photo at the top may make you despair at the selfish vectors of new infections.  But look carefully—at this photo or other similar ones—and you’ll see that the reckless have come to the party without their parents or their children.  Most people care about some other people.  We can try to widen that circle.

And we can remember that not every self-styled freedom-fighter is a ‘sensible knave’.  Freedom is what it is.  But it is a lot easier to comply with restrictions if you judge the costs to be lower because you think the freedoms lost are less important than the freedom gained.  People make such tradeoffs all the time.  Is there any way to build consensus around which freedoms are, in the end, not really that valuable?  I am not confident, though it seems to me that the Teacher is right when he says, ‘Anyone who is among the living has hope—even a live dog is better off than a dead lion.’  Perhaps we could start there.

 

 

 

 

COVID-19, from where I sit

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What will things be like after COVID-19?   At least in rich countries, there will be a time after this pandemic.  I do not think it will be soon.  And, for reasons not here pertinent, I am unlikely to see it. But I think I see, perhaps darkly, some features of your future.  We now know that parts of many jobs—and all of some jobs—will be done remotely. ‘Working from home,’ we now say.

Some predictions about how that could change our lives will prove as comically wrong as travel by jetpack.  It will not stop the climate crisis, eliminate cars, or move all shopping online.  It will not reverse—it may exacerbate—the grotesque inequalities of wealth and power that scar capitalist societies.  ‘Essential workers’ will need to show up, and they will still be paid—if they are lucky—no more than their marginal product. In the medium term, the ‘reserve army of the unemployed’ will grow, so their wages may even go down.

But for people whose access to work is limited mainly by disability, especially by mobility impairments, things may improve.  At least, they will if equality and employment law remain roughly as they are in the more decent societies.  Many countries have something like the following regime:  employers may not discriminate against people on grounds of disability, and they have a positive duty to make ‘reasonable accommodations’ or ‘adjustments’ in employment so that people with disabilities can participate with dignity and on fair terms.  What is ‘reasonable’ is contested.  An employee has to be able to do the job, but need not do it in the time, manner, or with the efficiency of one with no disability.  The point of equality law is to put a thumb on the scale in favour of disabled employees.  For nearly all employers that means a cost, and often a nuisance as well.  Compliance is therefore patchy.

As my own mobility declined (I use a wheelchair), I discovered that even attentive employers struggle to understand, never mind accommodate, disability.  I have never encountered ill-will or indifference, but plenty of incomprehension and dithering. And, incredibly, I have seen institutions that draw on the public purse build or renovate in ways that introduce new barriers to access.  (The distinguished Canadian lawyer, David Lepofsky, rightly says that this should be a red line.)  But here is the good news.  Everyone now knows that significant aspects of some jobs can be done off-site.  We know this is possible because it is actual.  (Legal philosophers: take note.)  Classes, seminars, lectures, and meetings are being offered in new ways because, well, for now we have no choice.

Some of these are imperfect substitutes for ‘the real thing’.  They will be dropped, as general practices, just as soon as it is safe to do so.  But—and here is my point—for some employees they will become not only feasible but required forms of accommodation.  An academic ‘manager’ once told me, ‘We already have the most flexible work conditions there could be!’  They did not mean to suggest a flexibility including the right to work at a time or place that accommodates a disability.  (Nor did they have in mind casualized teachers: they meant tenured law professors.)   But COVID-19 has taught us that there are, after all, flexibilities we never noticed.

Not everyone who could ‘work from home’ should have a right to work from home. And, really, how many would want to?  But some should have that right, including some people with disabilities.  I would rather we had learned this some other way, but at least we have learned it.  I hope you remember it when this disaster passes.

Jurisprudence in a pandemic

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

 

 

 

 

 

A Lenten thought on good Samaritans

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

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

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

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

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

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

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

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

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