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.

 

 

 

 

 

 

 

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?