Category: Politics

When ‘good faith’ goes bad

Les Green3 Comments

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

Les Green12 Comments

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

Les Green4 Comments

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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.

 

 

 

 

Free Speech and Pronouns

Les Green38 Comments

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Suppose someone asks to be referred to by a gender-neutral pronoun: ‘their’, or maybe ‘ze’.   (A) Do you have to do it?  (B) Is it wrong if you don’t?  (C) Does anyone else have the right to require you to do it?  The answers are:  (A) Yes;  (B) Normally; and (C) Sometimes.

(A) We have a social obligation to address people and refer to them in the way they prefer. If your friend wants to be called Daniel and not Dan, then Daniel it is.  If Dad wants to be called Dad and not Bob, you call him Dad.  If Ms. Ahmed marries Mr. Mackenzie, you continue to call her ‘Ms. Ahmed’ unless and until she tells you otherwise—you never insist on ‘Mrs. Mackenzie’ against her wishes.  You call an instructor ‘Dr’ or ‘Professor’ as appropriate, unless invited to call them something else.  (Especially in the case of women. They earned their titles, yet often suffer ‘Miss,’ or even ‘Judy,’ from people who reflexively acknowledge the authority of male instructors.)

(B)   At the same time, a breach of a social obligation isn’t always a big deal, morally speaking. You shouldn’t wear a Hawaiian shirt to a funeral, and you shouldn’t smoke in a friend’s company without permission.  But these are matters of etiquette, not morality.  Why is deliberate mis-naming different? People’s names, titles, and pronouns are part of their identity, and to deliberately address them in a way other than they wish is a gratuitous insult.  That is wrong in itself.  But it is also to presuppose that they are to be admitted to your conversational world only on your terms, not on their own.  That is not only offensive to them, it is also an offence against them.  Of course, there are exceptions.  If you oppose titles of nobility or religious nomenclature, you have no duty to call someone ‘Lord Black’ or ‘Father Brown’, even if their bearers prefer it.  But what if you firmly believe married women should take their husband’s names, because St Paul said something that, in your view, requires that?  Doesn’t that make it morally permissible for you to insist on calling Ms. Ahmed ‘Mrs. Mackenzie’?   No: Love your neighbour as yourself.  And grow up.

(C)  Now, what about free speech? Even if mis-naming is a breach of social obligation, and even when it is also a breach of moral duty, doesn’t the free speech principle prohibit others requiring me to address people as they wish.  Isn’t that my call?  Who is anyone to boss me around?

It is hard to believe, but a Canadian professor of psychology (who insists on ‘Dr. Peterson’ from the press) thought that this would amount to ‘silent slavery with all the repression and resentment that that will generate.’ Knowing even less about the law than he apparently does about psychology, Dr. Peterson fears that pronominal intransigence might expose him to hate speech prosecution.  It would not.  But it might, and I think it should, expose him to discipline on his campus.

Universities are not just public platforms; we have work to do.  One aspect of that work is teaching students in an environment in which they can learn without distraction and, in particular, without being insulted or needlessly exposed to risk.  To insist on calling transgender students (or faculty) by anything other than the name and pronouns they prefer is a gratuitous insult.  (See above, (B): ‘Grow up’.)  More important, students cannot learn effectively when subjected to regular offence or humiliation from their instructors.  So take your opposition to the ‘silent slavery’ of pronouns to Youtube or Hyde Park Corner, where your audiences are not captive.

Mis-naming can sometimes be worse than an insult.  Imagine an anti-Semitic professor who thinks far too many Jews are admitted to his university.  Imagine it is already dangerous for Jewish students on campus. The professor breaches no other laws or regulations, but does insist on mis-naming his Jewish students:  He knows that Green’s father changed the family name from ‘Greenberg’, so that is what he calls Green.  He pronounces all middle-European names ‘correctly’, to emphasize their foreignness:  ‘Weidenfeld’ gets ‘Vy-den-feldt’, never ‘Wy-dun-feld’.  Mike always gets ‘Micah’.  And so on.  If challenged,  he says his mis-naming is merely correcting errors.  He says his purpose in doing that is to highlight Jewish over-representation.  His secondary purpose–he also says–is to stand up for free speech, and to strike back at ‘social justice warriors’ who are trying to sell people like him into ‘silent slavery’.  The effect of his behaviour is that Jewish students are now even more anxious than before, for he has made them visible targets for anti-semitic discrimination, or worse.

There used to be instructors like this.  (Perhaps in some places they still exist.) But there are now many more instructors like Dr. Peterson, who insist on their right to call transgender students by a previous name (perhaps the one on their application form) or to refer to them by what he considers to be their genitally mandated pronouns.  Where transgender people are at risk of discrimination and violence—which is to say, everywhere—this marks them as targets, even if the actual discrimination or assault is left to others.

But isn’t that effectively to ban discussion of transgender rights or (in the case of the Jewish students) to cramp exploration of admission policies?   Of course not.  Prohibiting deliberate mis-naming would be a reasonable time, manner, and place regulation in a university classroom. There is no ‘slavery’ here, silent or otherwise.  Then what about ‘all the … resentment that that would generate’?  Feelings of resentment are partially within our control.   The case for campus speech regulations is at the same time a case for learning to control one’s resentments.  If they prove intractable to rational control, there is always psychotherapy.

 

 

 

What Constitutional Crisis?

Les GreenLeave a comment

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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.

 

 

 

 

 

 

 

 

 

 

 

The Will of the People

Les GreenLeave a comment

Polling_JammuandKashmir_PTI

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

Les Green4 Comments

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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-being.  This 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.

 

Autonomy and Identity

Les Green3 Comments

Sequoya Yiaueki was raised as a Native American in the US–and often treated and humiliated as a Native American—only to find that, apart from a minute fraction of DNA inherited from his mother, he is nothing of the kind.  Some family history together with a home DNA test kit showed that his grandfather was a Chinese immigrant to Philadelphia.  The nice mix of genetic material he inherited contributed to his looking like a handsome aboriginal man, an appearance that was then certified by family legend and social hostility.  But it was all false.  That was not who he ‘really’ was.

Why do I say ‘false’?  For one thing, because Yiaueki does.  He  feels his ‘Indian’ identity was ‘pulled out from under him’; he can no longer live a lie.  Many of us know stories of this sort.  I have a friend who, only in his fifties, discovered that he was adopted, and then had to go through a difficult assessment of his feelings towards the family that raised him, lovingly, but in a house of secrets and deceptions.  Another friend, a distinguished lawyer, transitioned in his forties and now lives as a woman.  Unlike many, she had  good support from her family and law firm.  Still, she now feels, sadly, that the earlier part of her life was somehow false.  And many of us in what one might, in an innocently homogenizing way, call the self-aware-non-straight-population, remember a time when that fact about our selves came as a challenge to the people we took ourselves to be.

These cases suggest something important about the value of personal autonomy.   We often defend it, and the political and social liberties that secure it, along the lines  J.S. Mill and John Rawls did:  its value lies in creating lives for ourselves, in making up identities, in choosing and pursuing ‘conceptions of the good’.  But then the cases mentioned above seem to reduce the importance of autonomy.  These are not cases about people choosing who or what to be; they are cases of people finding out who they already are.

To some, that shows that a liberal politics oriented to personal autonomy is wrong or shallow.  Many philosophers back in the 1980s were tempted by that conclusion.  Important features of our lives that orient us in the world and affect the way others respond to us are not chosen, created, or made-up; they are part of the context for any other choices we make.  People do not– cannot– choose to be indigenous, or biologically related to the parents who raised them, or gay.  That correct conclusion prompted a lot of loose talk about the importance of ‘community’ and ‘authenticity’.  (And we are are starting to hear that all over again, with complaints about rootless ‘citizens of nowhere’.)

The talk was loose because, even in the face of obdurate facts about ourselves, choices do remain.  For one thing, we can and often must choose what to do about those facts.  We can acknowledge them or deny them; we can celebrate them or regret them; we can make them a more or less central part of our identity.   So already there is a role for autonomy.   And it is an important role.  What we do about, or with, the people we find ourselves to be is often of enormous importance to our life prospects.   Even in 2018, and even in ‘liberal’ western countries, the decision whether to come out of the closet can be dangerous for young people–and so can the decision to remain there.

But that reveals a second aspect to autonomy and the rights that secure it.  It makes no sense to think about people ‘choosing’ to be indigenous, or biologically related, or gay (or black, or disabled…) but it is certainly  both intelligible and important for people to want the freedom to discover whether they are any of these things.   That can matter for exogenous reasons: for instance, knowing your genetic inheritance may be important to knowing your risks of a certain illness.  More often, it is important for endogenous, psychological reasons.  Most of us do not wish to ‘live a lie’.  Sequoya Yiaueki had no desire to live ‘as if’ he were Native American once he found out that he was not.   Of course, not everything need or should change in the face of  a momentous discovery, but to simply go on as before is often impossible.  This shows that  we have, over a certain range, a powerful interest in knowing who we really are.  And that puts a different gloss on many of the familiar liberal freedoms–freedom of speech, thought, inquiry, association etc.– they serve self-discovery as much as self-creation.

It is a matter of philosophical and political controversy whether a man can ‘choose’ to be or become a woman. (No one denies that men can choose to live as if they are women; and no liberal will deny their right to do so.)  But even for the skeptics, it should not be a matter of controversy that the freedom to find out whether one is a man or a woman (or a male or a female or neither) is of independent value.  As we blunder through these complex debates, I notice that many who are hostile to transgender people are also hostile to anyone having the freedom to explore or test their gender identity.  Another example.  In Russia, in Ukraine, and among decadent religions in the US and UK, there is not only overt hostility to gay people, but also hostility to the freedoms of expression and association that help young people find our whether they are gay.  (Here, that hostility expresses itself in arguments about sex education or pornography–both of which can lead children to discoveries about themselves that their parents would rather not be made.)

Personal autonomy is valuable for many reasons: some of them do bear, in the way Mill stressed, on our capacity for and success at self-creation;  but others bear even on those aspects of ourselves that lie beyond choice.  So we are not going to understand the importance of autonomy if we reduce it to debates about whether, or how far, some aspect of our identity is a matter of one’s own say-so.  Freedom is more valuable than that.

 

 

Oxford needs quotas

Les Green2 Comments

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

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

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

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

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

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

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

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

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

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

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

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

‘What do you mean, “CHANGE”???’

Self-Identification, Sex, and Gender

Les Green4 Comments

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

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

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

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