Jurisprudence in a pandemic

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

 

 

 

 

 

A Lenten thought on good Samaritans

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

 

Research, Scholarship, and Curating

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

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

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

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

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

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

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

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

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

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

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

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

Hector Pass the parcel.

            That’s sometimes all you can do.

            Take it, feel it and pass it on.

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

            Pass it on, boys.

            That’s the game I wanted you to learn.

            Pass it on.”

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

 

 

A new direction, and permissive sources of law

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

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

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

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

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

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

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

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

 

 

 

 

 

 

 

 

 

 

 

Law, Norms, Hate, Porn, Progress, Gender

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

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

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

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

What Constitutional Crisis?

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Even the middle-brow British press are now havering about a supposed ‘constitutional crisis’ in the UK.  The Speaker of the Commons has given notice that, if Theresa May attempts to bring her twice-rejected Brexit deal back for a third (or fourth…) vote, he will be forced to rule on whether that violates the established convention that Parliament may not be asked, in the same session, to vote again on a proposal it has already rejected.

This may be a crisis, but it is not a crisis in or caused by the constitutional order.  It is a political crisis of the government’s making.

How do these differ?  Almost any constitutional crisis brings a political crisis, but not every political crisis flows from a constitutional crisis.  It would be a constitutional crisis in the UK if the Queen refused to give royal assent to a bill that had passed Parliament, or if Scotland unilaterally declared independence, or if owing to austerity cuts the courts ceased to function.

It would be a political crisis if we left the EU without any deal providing for an orderly exit, or if border checkpoints were to be set up again in Northern Ireland, or if the National Health Service collapsed owing to immigration quotas.

In a non-constitutional crisis there can be profound social and economic dislocation, but if the constitution remains broadly effective and regulates the major political organs there is no constitutional crisis.   In the present case, the integrity of the UK constitution is not in doubt.  Just the opposite: a pre-existing political crisis—a failure of government—has been heightened by the Speaker signalling that he will, if needed, enforce one of the basic rules of the constitution.  Moreover, the government acknowledges that Parliament may not evade or abrogate his ruling except by lawful measures provided by the constitution itself.

Of course, no law or convention is black-or-white; they all have vague margins.   But there is no doubt that the government may not ram a rejected and unmodified bill through Parliament by bringing it back, week after week, hoping that intervening threats or bribes will eventually bend the house to its will.   In that scenario, votes in Parliament would not amount to decisions at all.  The rule exists precisely to ensure that does not happen, and it is one of the functions of the Speaker to apply the rule.

However, even in its core, one constitutional rule may conflict with another.  Sir Stephen Laws emphasizes such a conflict when he argues, for the conservative think-tank Policy Exchange, that the right of a government to get its way over money bills is also of great constitutional importance.  As indeed it is.  But that rule presupposes a government that can command a majority in Parliament.  To give absolute control over Parliament to a minority whose very survival is in doubt from week to week would be a grave constitutional error.

(Incidentally,  Policy Exchange has one of Britain’s very worst records for financial transparency, and it also funds the Judicial Power Project—a parliamentarist’s answer to the far-right Federalist Society in the US.  Actually, since Policy Exchange keeps its funders out of public view,  it may simply be a branch of the Federalist Society.  Or worse.  Charity Commissioners, please?)

Behind all this posturing about a ‘constitutional crisis’ is, of course, the fear that Brexit will be lost through delay.   There is rank hypocrisy here.  Those who say the referendum on leaving the EU must never be revisited, now say that a Parliamentary vote rejecting the Brexit plan—by the largest margin in modern history—must be revisited, and revisited, and revisited, until Parliament gives the answer that a weak and divided government wants to impose on an unwilling country.  To allow that really would be a constitutional crisis.

 

 

 

 

 

 

 

 

 

 

 

Professor Finnis and Academic Freedom

My distinguished former colleague, brilliant jurist, reactionary Catholic ideologue, and career homophobe, John Finnis, is once again attracting the attention of Oxford’s law students.  This comes in waves.  In the past, it was triggered by things like John’s attempts to defend frightening moral views, or by his legal interventions on the side of prejudice and superstition, or by his disowning Oxford’s standards of academic integrity (when breached by students who share his views).  What could have triggered the ludicrous new petition to have him ‘removed’ from Oxford?

I’ve been away on sick leave, so I may have missed something.  But reliable sources tell me there has been no fresh controversy.   Of course, each year there is a fresh group of students to be shocked by Finnis-type views.  That encounter can be like reading Hastings Rashdall for the first time. (Rashdall argued that the well-being of the ‘higher races’ matters more than the well-being of the ‘lower races’. I was first made to read Rashdall in a tutorial at Oxford.)  Actually, it is more like reading Rashdall and then, just when you stop trembling, walking into your seminar and there is Professor Rashdall! And now it’s your turn to engage in ‘more speech’.

Still, the petition to ‘remove’ Finnis from Oxford is seriously wrong in principle and mistaken in fact.  Principle: To fire someone from an academic post solely on the basis that he defends false or repugnant views is a clear violation of academic freedom.  As my friend Brian Leiter rightly says, it is pretty embarrassing to see Oxford Law students signing up for this.  (I’m hoping none of the signatories was in my classes on freedom of speech.)  Fact: one cannot ‘remove’ someone from a post he does not hold.  John Finnis is long retired from Oxford Law, though it is true that he is still occasionally invited to teach seminars, and also to participate in hiring decisions.  (At Oxford, ‘compulsory retirement’ is fully compulsory only for those who lack friends.)

But is academic freedom the only thing at stake here?  Consider whether, when Hastings Rashdall retired from New College, Oxford, they should have gone looking for a replacement to defend his articulate, philosophical form of racism, or whether they should have kept Rashdall on an occasional basis, to ensure that students of the ‘lower races’ would have some controversial views to take on.  (It was 1910—philosophical racism was still a thing.)  If such a case could be made, it would have to appeal to something like intellectual diversity or pluralism. (‘We need someone to stand up for racism around here!’) But it couldn’t be advanced on grounds of academic freedom:  that protects those who have an academic role, it doesn’t tell us who should have an academic role in the first place.  If there is an objection to not replacing (or re-hiring) racists or sexists or homophobes, it is not an objection from academic freedom.

Now, back to the future:  Oxford’s official response to the Finnis petition was as distressing as the petition itself, though for different reasons.  (I have never understood why, but this particular issue is something our administration gets wrong, time after time.)   The University says, ‘We are clear we do not tolerate any form of harassment of individuals on any grounds, including sexual orientation. Equally, the University’s harassment policy also protects academic freedom of speech and is clear that vigorous academic debate does not amount to harassment when conducted respectfully and without violating the dignity of others.’

Fair enough.  But the petition does not allege that John Finnis engaged in ‘harassment of individuals’ and, myself, I would consider any such allegation incredible. John is a kind teacher, a generous colleague, and a gracious man. However, our student lawyers do understand the University’s obligations under the Equality Act better than the University does.  The University has an obligation not only to eliminate individual discrimination against, and victimisation or harassment of, gay students, but also a positive duty to advance their equality of opportunity and to foster good relations between gay people and straight people at the University.  In its garbled (and partly unlawful) proposals, the petition fairly demands that the University take more seriously its positive equality duties, at least by clarifying how it sees those as relating to academic freedom.

We never run out of opportunities not to discriminate or not to harass, but serious opportunities to advance equality or foster good relations come up only now and then, and only in certain contexts.  In a University, retirements are among those contexts.  Every retirement frees up resources to do new and, if we can, better things.  Instead of replying in its familiar, defensive, way, Oxford should have explained to the petitioners all the ways it has used things like Professor Finnis’s retirement to advance the equality of gay students.  But perhaps that list was too short to merit mention?

 

 

 

 

 

 

The Will of the People

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In the previous post, I suggested that there is some truth in populism.   I proposed that it specifies a certain end for government, namely, that the well being of the people ought to be the ‘supreme law’ (as Cicero put it).  A number of correspondents remind me–correctly–that Cicero was not all that keen on the populists of his day.   Others write to ask how a liberal like me could possibly endorse such a view (forgetting, I suppose, that Locke chose Cicero’s tag as the epigraph for the Two Treatises).

It is unlikely that any general purpose or aim will suffice to pin down a specific political theory or, if you prefer, ideology.   Utilitarians can subscribe to the populist aim, under a certain interpretation of ‘well being’.   So can rights-based liberals, under a certain theory about rights and a theory about the division of labour among states.   Is this worrying?

I think that when we are trying to understand populism as a possible–and possibly attractive–political view we need to add to its characteristic end at least one other feature, a claim not about proper ends but about legitimate means.   Populists think (or should think) that the most fundamental political choices facing a state ought to be subject to the will of the people, in the sense that they should be responsible to the people.  Again, this is an ideal, not a description of our current mess.  (And that’s another reason that the journalists’ pejorative ‘populism’ is a such poor guide for constitutional theory.  The pejorative use just sweeps the messes into one big heap, then tells us to bin the lot.)

But now populism is starting to sound a lot like democracy.   Well, it is something like democracy;  we might say, populism is democracy for les jusqu’au-boutistes.  The point about the proper ends of government applies also to its proper means.   A democrat, regardless of how much popular input he favours, is bound to stand firm at one  point.  It is not for the people to undo or restrict democracy (in the specified form).  If, in a free and fair referendum, the people vote by a clear majority to establish a theocracy, then the populist I have in mind will hold that that is how the constitution should run.  It is not for the losing minority, or the economic elite, or powerful secular states, to prevent that people from living under the sort of constitution they chose.  Of course, opponents of theocracy are still entitled to denounce what the people have chosen, to argue against it, and so forth.  Nonetheless, at the end of the day the people are to be sovereign.  A people can be sovereign without governing, and they can govern without being sovereign.  That is why a commitment to popular sovereignty sits uneasily with a commitment to democracy.  Only under certain conditions are they mutually supporting, and those conditions are not guaranteed (and, historically, are not all that common).

I have said that a populist thinks that the most fundamental political choices should be made by means responsible to the people.  This allows for bolt-ons.  We need to have a separate argument about whether choices that are morally fundamental –say, policies about abortion or punishment–ought to be subject to popular control, or whether popular sovereignty applies only to choices that are procedurally or institutionally ‘fundamental’ (e.g., voting systems, constitutions and their amendment procedures, etc.).  But the need for bolt-ons is not an objection to a theory.  Just the contrary: we should be wary of anyone who purports to ‘derive’ everything in political morality–from the ends of government, to the limits of private property, right down to the role of judicial review– from a couple of diaphanous ideas like ‘reason’ or ‘freedom’.  We should expect to see different sorts of populism, just as we see different sorts of conservatism, and different sorts of libertarianism.  And should expect to come to different views about their cogency, according to our views about the bolt-ons.  That is how serious political philosophy works.

The idea that fundamental political choices ought to be subject to the control of people–the very same people whose well being figures in specifying the aim of a populist government–is thus flexible.  But it is far from empty.   Plato would have hated it for the same reason he hated democracy:  what do the untrained ‘people’ know about anything?   Bad enough that, say, a bricklayer should get to vote on which experts should determine monetary policy; but a populist is willing to let him vote also on the voting system, and even on constitutional rules!  Some liberals will hate it, for they will see that by letting the people shape the constitution we will inevitably be letting them shape, not only what rights we have, but how we determine and enforce what rights we have.   And some conservatives will hate it.   Like Dicey, they will say that the only ‘will of the people’ the courts can recognize are Acts of Parliament; or that populist politics are likely to be turbulent, and nothing frightens a million pounds as much as uncertainty.

That so many find so much to object to in populism as I’ve defined it is good evidence that is far from being an empty doctrine.   How it measures up against its competitors is a matter for later posts.

The Truth in Populism

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The Guardian is doing terrific work on the spread of far-right, xenophobic, racist, and mercantilist politics in Europe and the US.   It is doing it, however, under the misleading label of ‘the new populism’.  That is lazy.   If we explored the nature and sources of the grotesque inequality and greed in capitalist societies under the heading of a ‘new’ (or even ‘classical’) ‘liberalism’, examining only the ideas and followers of Herbert Spencer, Milton Friedman or (for a laugh) Ayn Rand, we would quickly sense that something had gone awry.  Sure, those writers do  mention ‘liberty’.  But that is no better reason for thinking they are ‘liberals’ than it is to think that, because they mention ‘conservation,’ the Friends of the Earth are conservatives.   It is long past time for people who can read and write to ‘use their words’.  Let’s call things what they are.

This isn’t just a quibble.  ‘Populism’ sanitizes what is, in much of Eastern Europe, neo-fascism, and, in large swathes the the US, anti-black and anti-Latino racism.  It homogenizes phenomena that differ, historically and morally.  Yet it isn’t hard to find serious paradigms of populist thought and politics:  Rousseau, Marx, the Chartists, the People’s Party, and so forth.  Admittedly, they expressed other ideologies as well:  romanticism, determinism, democracy, agrarianism etc.  But if you want to know what populism is, or what its appeal it might be–or for that matter, what its risks are–then this is where you need to look.

Actually, you could start earlier.  One reasonable definition of populism is Cicero’s: ‘Salus populi suprema lex esto’: The well-being of the people ought to be the supreme law.  Here is how I think we should best understand that:

(1)  Populism is a claim about what ought to be supreme law.  We can think of ‘supreme law’ as something like the constitution, or –better– the fundamental order underlying the constitution.  It is not a claim about tariffs, trade, or immigration except to the extent that these bear on the supreme principle.   Populism casts doubt on the idea that our supreme law ought to be the will of our ancestors, or our technocratic rulers, or our TV stars.  Populism respects democracy–but only to the extent that democracy is a system that serves the well being of the people.  (If everyone votes for a theocracy, the democrat is bound to reject their unanimous view; the populist may try to live with it.)

(2)  Populism is a political doctrine that has at its centre well-beingThis idea is capacious.  It means human welfare, flourishing;  perhaps even the perfection of human capacities and capabilities.  Maybe that sounds banal.  Doesn’t everyone think politics is about human welfare?  Readers of contemporary political philosophy know that it is not banal.  Some think the leading ideal for law and government shouldn’t be human well being, but something more pure and abstract, something that may or may not make anyone better off, for example: respecting the will of the gods, realizing ‘the right’, embodying ‘legality’ and so on.  So many words.   Yet they share one destructive idea:  the actual well being of actual people is of significance only to the extent that it serves some other ideal.  Do people have safe homes? A job?  Decent health care? Education?  A private place to shit or piss?  The anti-populist thinks of such things as of ‘merely contingent’, ‘conditional’, value.  What matters to him is something higher–or anyway different—than the plain reality of ordinary people’s lives.

(3)  Populism takes as its ‘supreme’ law the well being of the people.  It is at this point that the radical edge of populism is often dulled by lazy theorists or motivated ideologues.  Here, I can only be dogmatic : (3a)  ‘The people’ means all the people in a political jurisdiction, or at any rate all the people who normally make their lives there.  It is thus an anti-racist and anti-nationalist doctrine.  (3b) ‘The people’ does not itself explain or justify the boundaries of a political jurisdiction.  Nor it does not pretend to.  (3c) To affirm the supremacy of the well being of the people is not to disallow or negate the idea that the well being of people in other jurisdictions–foreigners–is morally important.  Just the contrary: a government should serve the well being of foreigners at least when doing so will (indirectly) serve the interests of its people.  In a complex, interconnected world, governments concerned to advance the well being of their (own) people ought to be very anxiously concerned about the well being of other peoples.  Moreover, the existence of a supreme principle (eg ‘parents ought to secure the welfare of their own children’) is compatible with, and may require, the existence of other, demanding, subordinate principles (eg ‘when the interests of your own children aren’t at stake, you should work strenuously to secure the interests of other people’s children’).

These remarks are nothing like an adequate defense of populism.  They are hardly a beginning  (I will offer some more later. ) But, unlike much of the journalistic and academic chatter in which we are drowning, it identifies populism with an intelligible ideal rather than an abusive epithet.   Moreover, it is an ideal that has serious antecedents in political philosophy and is not obviously, or absurdly, wrong.   In fact, I think that the sort of populism I have in mind  here is is not only defensible; I think it is more attractive than many of its competitors, including democracy.  But more on that later.

 

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).