How Spain violates the rule of law

The least important fact about the prospect of Catalonia declaring independence from Spain is that such a declaration would be void under the Spanish constitution.   The most important  is that Rajoy’s government seems willing to hold Catalonia against its will, and even by force.

It unthinkable that Canada would attempt to hold Quebec captive should it vote to leave the federation. It is unthinkable that the United Kingdom would send in  troops to keep control of Scotland or Northern Ireland.  Yet neither state has any constitutional provision for regional or national independence.   The Canadian federal government, though formally limited in its jurisdiction, has vast powers to invade provincial domains. The Westminster Parliament is  unconstrained, and could abolish the Scottish Parliament entirely. It is not any legal difference that explains why neither Canada nor the United Kingdom would behave in such ways. It is a matter of political culture and public morality.

It is true that Canada and the United Kingdom have a deeper and longer loyalty to democracy than does Spain—but that is not the whole story. The larger difference is over another ideal, that of popular sovereignty. It is ultimately for peoples to decide by whom they shall be governed.  Popular sovereignty includes the right to make that decision wrongly, and in some cases even to make it in a way that impedes democracy. If Syrians were to freely vote for a theocracy, no other nation should intervene to prevent them.

Some people admit only  a thin version of this ideal. They say only colonized or oppressed peoples are entitled to self-determination; everyone else must accept their lot and work within existing law, no matter what.  Canadians and the British reject that view. They do not think Quebec or Scotland have the right to decide their futures because they are oppressed by their central governments.   On the contrary, they would fiercely deny that proposition and yet  still respect the will of the minority nations within their borders.

But what about the rule of law? Must the illegality of any unilateral declaration of independence violate this ideal?  The question is more complex than some suppose.

First, if there is any conflict between popular sovereignty and the rule of law we still need decide which should prevail. The idea that existing law should always rule, and  be obeyed, no matter what is a repugnant principle. It is one that kept Spain under a dictatorship for years.

Second, and more important, it is not obvious that an unconstitutional declaration of independence on the part of Catalonia would violate the rule of law. To see why, think again about Canada and the United Kingdom. Each not only tolerates but makes possible a lawful route to independence for  minority nations.

In Canada, a route to the independence of Quebec is secured by the authority of the 1998 Supreme Court decision in the Reference re Secession of Quebec. The decision did not amend or reinterpret the Canadian constitution.  It directed how Canada’s government should respond to any declaration of independence: by good faith negotiation. In the United Kingdom, a lawful route to independence is secured by Parliament’s demonstrated willingness, in Northern Ireland and in Scotland, not only to respect the result of a border poll or an independence referendum, but to provide for, regularize, and recognize such votes. Canada and the UK make possible, and lawful, what Spain leaves to pressure and violence.  Spain’s fundamental law renders independence unlawful.  It  takes a difficult political eventuality for which many countries must somehow provide and puts it beyond the realm of legality.

So is Madrid, not Barcelona, that violates the the rule of law.  In denying any lawful route to independence, in disrupting polls, in assaulting voters, and in threatening to remove the regional government of Catalonia, Spain also shows contempt for one of the central ideals of the European Union.   And, in refusing to condemn this, the European Union  collaborates in an attack on popular sovereignty, and on the rule of law itself.

 

 

 

Why it is hard to be a campus conservative

When the right claims that US universities have been taken over by ‘liberals’, and that faculty and students of ‘conservative’ opinions are afraid to speak up, they do not mean that its campuses are now swamped by people who think we should restrict liberty only to prevent harm to others, or who demand that social inequalities benefit the worst-off. They mean American universities are full of people who believe things like this:

  • Species arose through natural selection.
  • No author of any gospel ever met Jesus.
  • Homosexuality is a normal variant in human behaviour.
  • The United States lost a war against Vietnam.
  • Human activity is a significant cause of climate change.
  • The United States has worse public health than do countries with nationalized health care.

Even more threatening to conservatives, however, is not these individual claims which are endorsed by all but a minority in serious universities. It the dominance of  habits of thought, modes of inquiry, and sensibilities of outlook that lead people to these conclusions. But none of this is because US universities are bastions of liberalism. It is because they are universities.

Of course, as Mill explained, every society should tolerate some truth-deniers. (He went further. He said that if a society lacks truth-deniers it might invent them, to keep us all on our toes.) But Mill never said their place is in universities, or that it falls to universities to provide ‘safe spaces’ for those whose political identity is bound up with  ignorance and superstition.  A university must tolerate, and even welcome, those who follow evidence and argument to conclusions that are false or unpalatable; but it may reject those who seek a platform for hatred or deception.  That is why it counts counts against Middlebury College when it shouts down Charles Murray but it counts in favour of Berkeley when it excludes Milos Yannopoulos.

That means universities can never be comfortable for a certain kind of conservative.  Those who need the lecture hall to flatter their personal convictions are bound to feel lonely and misunderstood.  Those who think views in the college should mirror votes in the electoral college are bound to feel cheated.  Maybe they can take comfort in the welcoming company they can find in America’s churches, legislatures, and even its courts.  But they should expect only argument from its universities—not speaking with a single voice, but speaking in that irritating way that universities do: insisting on belief that is proportionate to evidence, and on standards of reasoning that are neither liberal nor conservative, but merely human.

Donald Trump, Laura Kipnis, and the Intolerable

No one I know who voted for Donald Trump has told me that he (or, conceivably, she) did so.   But then I hang out in the wrong circles: lawyers, academics, immigrants, gay people, and adults who are able to read and write. Still, I am sure there must be some. I suspect several of my rich American friends, most of the constitutional ‘originalists’ I know, and far too many ‘Christians’.

None of these actually approves of Trump, his values, or his conduct. On the contrary, they held their noses when voting, because they thought the alternatives worse, and because they thought Trumpism would secure the things they do approve: the wealth and power of the rich, a Supreme Court free of liberal-minded people, and a country in which women and LGBT minorities know their place.   That is to say, the sort of people I know who voted for Trump did so, not because they approved of him, but because they were willing to tolerate him.

Now, that does not eliminate, or much mitigate, their moral responsibility in helping support one of the most unjust, corrupt, and vile regimes of any aspirantly democratic society.   They share in the blame for its increasing corruption, not because of what they favour, but because of what they are willing to tolerate in the name of what they favour. They tolerate the intolerable—and mostly they still tolerate it—and that is wrong.

Which brings me to Laura Kipnis, and her illuminating, powerful, and controversial polemic, Unwanted Advances: Sexual Paranoia Comes to Campus.   Daring to question some complaints against a Northwestern professor hounded out of his academic post as a result of allegations of sexual misconduct—and, more important, daring to question the fairness of some universities’ procedures created to address sex discrimination—Kipnis  now finds herself exposed to a variety of complaints and lawsuits, essentially for supporting, or at least tolerating, the intolerable.

There are reasons to doubt that these claims will succeed.   But even if they fail, many will urge that this is because free speech, academic freedom, and procedural fairness are, in the US, treated with more affection than is gender equality. The more we insist on procedural fairness—a presumption of innocence, a right to confront one’s accusers, and to test their evidence—the easier life will be for harassers and rapists, and the harder for victims.

That is true, and because (alleged?) harassers and rapists attract little sympathy, it is a truth that dominates discussion about sexual predators on campus. After all, whose side are we on?

It is a good question. But a good answer to it should mention, not only the interests of the (alleged) victims and the accused, but also a group that no one ever mentions: the bystanders.

A graduate student whose instructor or supervisor is suspected of sexual misconduct will attract  suspicions.   Even when, and especially when, she is not a complainant, it may be assumed that this is because she is compliant. Or, if not compliant, then at least tolerant of a supervisor who is a harasser. Now, graduate students don’t have a lot of power, but most of them have enough power to ditch a supervisor who behaves in such ways. They do not need to show that he assaulted them. It is enough not to want to work with someone who assaults other students.   One willing to work with such a person when she could change that can fairly be assumed to tolerate his conduct. And, like voting for Trump, this is to tolerate the intolerable. (‘I know he is a sexist—racist, homophobe, adulterer, liar….—but he really is the world’s expert on the Roman Law of Dogs, so it is fine for me to keep working with him.’)

And this takes us back to procedure. A false accusation of harassment, racism, homophobia, infidelity… damages, not only the accused, but those who, in virtue of their own decisions, can  be supposed to tolerate the accused’s behaviour.   So fair and accurate procedures are important, not only for the sake of those who may be wrongly accused, but also for the sake of innocent bystanders, who may be wrongly accused of tolerating the intolerable.  It is time for them, and not just the wrongly accused, to speak up in favour of fair procedures.  They too have an interest at stake.

 

 

 

 

 

 

On Judicial Plagiarism

It is an open secret that judges sometimes plagiarize from submissions by the lawyers before them, and even from articles and books by academics.   With respect to the latter, they are often aided and abetted by their clerks—law students working with them as research assistants.

Unlike scholarly or literary cheaters, the worry about judicial plagiarists is not that they undermine the research process, violate authors’ ‘moral rights’, or steal someone’s intellectual property. Judicial plagiarism is worse than any of these. It undermines the rule of law and the independence of the judiciary. A judge who knowingly or recklessly reproduces words or arguments of others as if they were his own may not be making his own decisions. If discovered, this undermines public confidence that the judiciary can be relied on to think for itself.

Still, we know judicial plagiarism occurs. We also know why. Courts are underfunded and under-staffed; there is far too much work; many judges struggle with an impossible docket.   So the temptations to silently lift others’ work can be powerful.   Some lifting will be obvious.   A claimant will not fail to notice if a judge copies out page after page of the respondent’s pleadings, interspersing phrases like, ‘as we can clearly see’, or ‘ surely the better view is….’ But unacknowledged material that a clerk, or judge, copies without attribution from sources on Westlaw or Google is harder to spot, and can silently infiltrate judicial decisions.

This is why we should be concerned by reports of plagiarism on the part of Trump’s nominee to the US Supreme Court.  Judge Neil Gorsuch’s 2006 book, The Future of Assisted Suicide and Euthanasia , has been shown to contain passages and descriptions offered, without citation or acknowledgement, as if they were his own, but which were taken from other authors. That book was in turn based on Gorsuch’s 2004 thesis, submitted for a degree at the law school where I teach. It can only be a matter of time before someone downloads the thesis from the Oxford University Research Archive, to see whether it also contained the passages impugned in the press reports on his book.

If it did, and if Gorsuch were still an Oxford law student, he would be subject to the jurisdiction of University, which unambiguously prohibits plagiarism.  It does not matter whether silently copying others’ work is intentional or not; it does not matter whether it is done with the tolerance of those copied; it does not matter whether the passages copied are central to an argument or peripheral.  At Oxford, as at most other universities, the wrong is in the misrepresentation. It is an offence of academic dishonesty.

There is, of course, an important question of degree to attend to.  There is much worse plagiarism around, even in our universities.  And plagiarism in Gorsuch’s book has only been alleged in a few passages, though one of them is fairly extensive. But why is there any at all?  These passages seem to have survived an awful lot of scrutiny. In writing a thesis, submitting it for examination, revising it for publication, responding to editorial comments, and correcting texts and proofs there are many opportunities to spot, and correct, honest mistakes or omissions.  Indeed, it is not too late to do so even now.  So why the silence from Gorsuch and all the loud denials from his apologists?

Here at Oxford, our chief disciplinary officers, the Proctors, do not merely have a reactive role. They have broad powers they must use, not only to enforce our regulations, but to prevent future breaches of them. Why is this important? Gorsuch is no longer a member of Oxford University, so the Proctors have no enforcement jurisdiction over him. But they can and must act to prevent misconduct on the part of current students or faculty.

They should be concerned, then, that Gorsuch’s former Oxford supervisor has provided a statement to the ‘Gorsuch team’ denying any plagiarism in the book:

Having reviewed the examples provided by BuzzFeed News to the Gorsuch team, the professor who supervised Gorsuch dissertation, Emeritus Professor John Finnis of Oxford University, provided a statement to the Gorsuch team, concluding, “[I]n my opinion, none of the allegations has any substance or justification. In all the instances mentioned, Neil Gorsuch’s writing and citing was easily and well within the proper and accepted standards of scholarly research and writing in the field of study in which he and I work.”

This opinion has been widely republished and read, not only by the politicians for whom it was written, but by law students around the world.  And this opinion, coming from such an influential scholar, sends the wrong message to young lawyers and scholars.

If by ‘the field of study in which [Gorsuch] and I work,’ Professor Finnis means university research in law or legal philosophy, then his claim is unfounded. Oxford University’s regulations and guidance to students, and years of interpretation of  them by the Proctors and others, put this beyond doubt.   But perhaps Finnis means that lower standards of integrity apply to law books than to law theses? I do not think that is true either; but it is in any case it is the standards of our University that our students need to comply with, now and in the future.

For my own part, if ever I encountered plagiarism in work by one of my own students I would insist they revise their thesis to include full acknowledgement and citation, using it as a ‘teaching moment’ to explain why it is critical to get this right, especially for lawyers. Legal citation is, as they say, not exactly rocket science: misattributions or non-attributions, if not accidental, suggest a cheater seeking to gain advantage from the work of others, or someone who has contempt for academic culture.

Good judges are sensitive to the further issues at stake. In a British Columbia appeal against a trial judge’s decision that lifted wholesale from one the parties’ submissions, Mr Justice Smith wrote,

Trial judges are busy, and there can be cases… where a party’s submissions so accurately reflect the trial judge’s reasoning that nothing would be gained by postponing other pressing work in order to rewrite the reasoning and conclusions in the judge’s own words. However, judges who are tempted to prepare reasons for judgment in this way should be acutely aware they may create a perception that they did not reach their decisions independently. Such a perception would tend to undermine public confidence in the impartiality and independence of the judiciary generally and would bring the administration of justice into disrepute:

Of course, an academic book or article is not a party’s submission, but for a judge to rely on it without citation would raise similar worries.   Indeed, that case would be worse for, as I mentioned above, judicial plagiarism of that sort will be a lot harder for the parties and others to detect. Given that it can always be avoided by a mere footnote–by a moment’s attention–failure to provide one is wrong.   That is why we demand it of our students, our judges, and ourselves.

When writing as an academic, Neil Gorsuch did not have a trial judge’s excuse of the extraordinary pressures of work. He was not copying from submissions others had read, but from authors most readers would not even know. With the leisure of the ivory tower, and with no one but scholars depending on his writing, Gorsuch failed an easy, elementary test we demand of every student: acknowledge all your sources–every single one–truthfully and fully. How should we expect him to behave when the stakes, and temptations, are higher?

Should Parliamentary Sovereignty Trump Popular Sovereignty?

On June 23rd the UK referendum on membership in the European Union delivered a clear, if narrow, result: the country should leave. Much still remains open, but as far as that issue is concerned, the matter is decided. I’m sure that British voters had no view about which mechanism would transfer their decision into law; but they understood that something would. No one supposed that a clear result might be treated as a helpful hint to politicians, or as a preliminary comment in a national seminar on the constitution.

Today’s judgment in the High Court repudiates that understanding. (R (Miller) v Secretary of State for Exiting the European Union). Lord Thomas of Cymgiedd CJ, Sir Terence Etherton MR, and Lord Sales decided that the UK executive lacks any power to transmit the will of the people into law by triggering the notification procedure for exit that is outlined in the EU Treaty. The court holds that the absolute sovereignty of Parliament must be respected, and that such prerogative power as the executive has to act in international affairs, including  treaties, can never repeal rights in domestic law. So Parliament must still decide whether to leave the EU. The matter remains open.

The breadth of the doctrine is breathtaking. The court does not merely say that Parliament is not, in this case, strictly bound by the referendum result; it declares that any popular vote is of zero legal relevance until Parliament expressly chooses otherwise. It is not even legally persuasive: ‘a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question.’ [emphasis added]

If the Supreme Court confirms this decision, the entire national debate on the EU can begin over: in the House of Commons, in the (unelected) House of Lords, then possibly back again to the courts, or maybe even the electorate. And that is what the claimants want: delay and time for second thoughts and further lobbying–not on the ground that the referendum result was unclear or the procedure unfair, but on the ground that the question was wrongly decided.

I agree that the question was wrongly decided. I also think that referendums are a very poor instrument of ordinary governance. But when what is at stake is the boundary of a constitutional people, we have no better procedure than a referendum, and courts should use their powers to uphold, rather than undermine, the result. Those who regret the result (as I do) should spend less time trying to overturn or forestall it, and more time trying to rally opinion around one of the better options that it has left open. Lawyers shouldn’t feel sidelined: whatever happens there will be work for them.

Democracy is government by the people. But the definition of ‘the people’ is not a matter solely for Parliament. It is matter prior to parliamentary democracy, and the legitimacy of Parliament depends on settling it correctly. The people have a right to decide for themselves the most basic terms of their constitution, including the people who will empowered by that constitution. That is why it is for Scots to decide whether to remain in the UK—and not for the UK as a whole; and why it is for the British to decide whether to remain in the EU—and not for the other member states.

What we might call English Constitutional Theory has long distrusted popular sovereignty.  An influential line of thought running from Hobbes, through Blackstone and Bentham, to Dicey and Jennings, equates popular sovereignty with Parliamentary sovereignty. Even today, the High Court repeats with approval Dicey’s words : ‘The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament’. Of course, it is plausible to think that the ‘will of the people’ needs practical expression. But when we have—as Dicey did not—lawfully organized and fair referendum procedures, it is implausible that only an Act of Parliament can ever speak for the people.

The UK has a fluid, informal constitution, and when disputes about its basic ground rules reach our courts, they generally lie in a penumbral zone where, whatever judges pretend, their decisions not only have political consequences but are made, and can only be properly made, on grounds of political morality. There are no ‘purely legal’ decisions at this level.

Today’s decision sidelines an important principle of political morality. It is not inexorably driven to do so by law or by logic. The judgment depends on two propositions that remain as debatable after the decision as they were before: (1) that the UK’s notification to withdraw from the EU cannot be made conditional on anything, and (2) that the European Communities Act 1972 not only gives EU law direct effect in UK courts, but also makes it part of UK law. Since the parties all accepted (1), the court did not test it. On (2), the court rejected the government’s argument that rights of British citizens under EU law result from an interaction of domestic and European law, and do not rest in domestic law alone.  Legal philosophers have struggled with the general issue at stake in (2).  Compare:  if conflict-of-laws rules sometimes require English courts to give effect to French law, does that make French law part of domestic English law?  It is a delicate question.  The Court makes short shrift of it.  Oddly, given its enthusiasm for Dicey’s doctrine that Parliament is omnicompetent, and its insistence that it only addresses ‘purely legal’ questions, the court  declares  (2) wrong because it is unrealistic: ‘In a highly formalistic sense this may be accurate. But in our view it is a submission which is divorced from reality.’

I wish the court’s desire to shape the law with an eye to reality had gripped it in some more helpful way. Since the UK is a union of peoples, not just one people, the declaration that any referendum, on any matter at all, can only ever be advisory will not go down well in Scotland, or in Northern Ireland. Nor will the conclusion, which follows inexorably, that Westminster can by explicit legislation repeal the Scotland Act 2016, notwithstanding what ‘a decision of the people of Scotland voting in a referendum’ (s 63 A) might have to say about the matter.  Does the Act itself give such a referendum legal force?  If so, it only takes a simple majority, which might consist only of English MPs, to amend or repeal it.

Contrast the more sensitive, and sensible, approach of the Supreme Court of Canada when addressing the constitutional significance of a possible referendum result in favour of Québec independence:

The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.  This would amount to the assertion that other constitutionally recognized principles necessarily trump the clearly expressed democratic will of the people of Quebec.’ (Reference re Secession of Quebec, [1998] 2 S.C.R. 217)

The formulation is inexact, but the idea is sound. The idea that ‘other constitutionally recognized principles’ necessarily trump any clear expression of popular sovereignty is a danger to the continued existence and operation of any constitutional order. The Canadian Court knew that to endorse that idea could risk national calamity. By their judgment they changed, if only marginally, the basic ground rules of the Canadian legal system. It was a wise move.  Perhaps our Supreme Court will follow it?

Popular sovereignty is a moral ideal. Parliamentary sovereignty is an institutional device, helpful where it secures important values, but a hindrance when it does not.

 

What ‘Brexit’ Really Means–Explained

My part-time colleague, Bo Rothstein, argues for a second referendum on the United Kingdom’s membership in the European Union–if and when the government comes up with ‘a deal’.

Fair enough.  But is his second referendum supposed to be able to reverse the decision of the first one?  Strangely, Rothstein doesn’t tell us.   In light of his examples of referendums of which he disapproves, it is natural to think that he means not merely a second referendum on an independent issue (e.g. the UK’s membership of the European Economic Area–yes or no?) but a second referendum capable of undoing the first, that is, of leading to the UK remaining in the EU–the very option that was so clearly rejected in June.  No referendum result (or election result, or judicial decision) has absolute authority.  But does this one really have zero authority?  Is it liable to be annulled on the ground that it was wrongly settled?

I am not surprised that Rothstein is coy about all this, for offering any definite view would require at least a sketch of the conditions under which a government should comply with the result of a (legally) advisory plebiscite.  He gives us none.  Rothstein does not notice, let alone refute, Richard Wollheim’s old but important resolution of the so-called ‘paradox of voting‘, namely, the fact that one can consistently think that one ought to support X against Y, yet also think that, if the majority supports Y against X, then one should support that. (Within limits.)  Wollheim said there is a difference between our ‘direct’ and our ‘oblique’ policies, and that it is  reasonable to have different policies about what we should ‘directly’ favour (were it up to us alone) and what we should ‘obliquely’ favour when called on to consider which policies should settle differences in what people ‘directly’ favour. So it does not follow from the fact that there was ample reason for me to vote Remain that, after a clear majority voted Leave, I should now insist on discounting their advice, relying instead on the grounds that justified my own initial vote.  The actual, positive, fact of a majority vote matters, and before we decide to ignore it, we need a better reason than that the majority was wrong to vote that way.

Wollheim’s labels never caught on, but his idea did, and it was put to work by writers like HLA Hart, John Rawls, Joseph Raz, John Finnis, Jeremy Waldron, me, and lots of others.  Nowadays we talk about the authority of ‘content-independent’ reasons, or of procedures. I’m not sure that ‘content-independent’ is any catchier than ‘oblique’, but it is the thing we need to consider when we weigh the moral authority of a referendum result, or an election result, or a court decision.  We don’t hear about this from Rothstein, who never tells us when he thinks it is right (if ever?) to give weight to content-independent considerations.  Of course, in a short journalistic piece one doesn’t expect a detailed argument.  But not even a hint?   Not a gesture?  The silence suggests that he thinks positive facts  have no authority at all to set against what is (in ‘truth’) right and proper.

Like most sensible people, he sees that the referendum result is a disaster for the UK–especially for those of us who teach in its universities; but for many others as well, including many who were duped into voting Leave.  But a second referendum?  What about best three out of five? And why not the same for general elections: the law of large numbers may help iron out the wrinkles caused by deliberate deception, voter ignorance, blindness to expertise, and so on. No MP should be elected without winning, say, 3 out of 5 elections.  Or 5 of 7.   There is an internet; it could be done.  But we will need to settle on the number of elections (or referendums) that need to be won in order to produce a settlement.  People will disagree about that, too.  Should we  hold a referendum on that question?  Or ask the philosophers to decide?

Rothstein also says ‘The slogan “Brexit means Brexit” is … meaningless because no one knows what a Brexit alternative will look like.’  That is just false.  I agree that we do not know what the feasible alternatives will be.  I know that Theresa May’s ‘Brexit means Brexit’ was a silly slogan to buy peace among warring factions of her Conservative Party.  But none of that comes close to showing that ‘Brexit means Brexit’ is meaningless.  For starters, everything is what it is and not another thing, so the sentence, if  uninformative, is meaningful.   Taken literally, it is also (trivially) true.  Of course, everyone also knows that it was not intended literally.  It was intended to tell us not to get our hopes up that Brexit will prove to be something other than what it said on the tin.  And what did it say on the tin?  Since so many now claim to be mystified by that, I am going to tell you, for I know what ‘Brexit’ means.

‘Brexit’ means a BRitish EXIT from the European Union. And that means that those who favoured Brexit wanted the United Kingdom to cease being a member state of the EU. May’s slogan assures her colleagues that that will eventually happen. (‘Eventually’ is a very big problem: I may come back to that another time.)

Now, member-statehood in the EU is fairly crisp, well-defined concept. There are no hard cases of EU membership; it is even pretty easy to find out which states are in and which ones are out.  Admittedly, Leave voters may not have known what they wanted instead of EU membership. But that is a different question, and it was not, as far as I recall, on the ballot paper. What’s more, there is nothing suspect about not wanting X while having no idea of what one would want if not X. People can rationally leave destructive marriages or jobs without settling what they might do next or instead.  I think that those who voted Leave were tragically and terribly mistaken. I even think that many of those Leavers who were literate were culpably mistaken, as they  refused to bear what John Rawls called ‘burdens of judgment.’ They negligently failed to inform themselves about highly pertinent, non-controversial, matters of fact; they refused to confront evidence that ran contrary to their prejudices.  Be that as it may, to suggest that neither Leave voters nor anyone else knows what Brexit means is plain dishonest. For a serious academic to repeat that tired, journalistic lie is close to professional malpractice.

Finally, Rothstein–like most other commentators–says nothing at all about one real, politically serious, ambiguity in the referendum result.  It isn’t helpful to talk about what ‘Britain’ decided, unless that is a casual way of talking about what the member state, the United Kingdom, decided.  That is the relevant entity as far as the referendum, and the EU treaties, are concerned.  And don’t say that ‘Britain means the United Kingdom’, as that is worse than ‘Brexit means Brexit’, inasmuch as the former is false and the latter is at least true.  Most of the Northern Irish voted Remain, as did most Scots, whose relation to ‘Britishness’ is more complex than the English imagine.  The referendum decided that the United Kingdom should leave the European Union. So that means that all of Great Britain and Northern Ireland will probably be given what only England and Wales voted for.  About that, there is a reasonable complaint to be made.  Admittedly, in the eyes of most English lawyers, Scotland’s and Northern Ireland’s rejection of Brexit is a detail of no constitutional significance, or no more constitutional significance than London’s.  But the opinions of English lawyers are not as important to Scottish or Irish politics as the English suppose them to be.

As for Brexit, the Scots and Irish, like the English, understood perfectly well what was being asked in the referendum.  They knew that ‘Brexit means Brexit.‘  That is why they opposed it.

I apologize for any offense #MakesMeSick

 

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In 2012, English footballer Andre Gray tweeted Is it me or are there gays everywhere? #Burn #Die #Makesmesick”.’

Following Gray’s winning goal against Liverpool yesterday, the striker ran for cover as his vile spew was discovered and re-tweeted. Gray said , ‘I want to offer a sincere and unreserved apology to anybody I may have offended in relation to these tweets. His statement went on to assert that he is ‘a completely different person’ now, and that any suggestion that gay people should die or burn was amongst his ‘big mistakes’: he is ‘absolutely not homophobic.’

Gray’s club and fans rallied to his support. In a brief statement Burnley FC minimized the remarks as ‘historical social media posts’ and, while condoning Gray’s ‘apology’, said the club ‘”do[es] not condone any discriminatory behaviour by any employee’. The cowardly evasion did not even appear on the club’s own homepage. And why should it? Gray apologized; he is a whole new person; he is not homophobic.

But none of this is credible, and the stinking words cling like a shitty diaper to Gray, to Burnley, and to the whole Premier League.

First, the ‘apology’ was obviously not written by Gray. The lawyerly tropes, ‘sincere and unreserved and in relation to these tweets’ are not items in any linguistic register in which Gray speaks. The statement is a shallow and phoney lawyer’s production.

Second, suggesting that gay people should burn (or be burned?), die (or be put to death?) is not something that ‘may have offended’ people. To imply that mere offense is at issue here regurgitates the hatred. Admittedly, Gray’s words are not what English law regards as incitement to murder, but they fall squarely within what is, in many jurisdictions, criminal hate speech.  And even where the law tolerates such filth, sane people can see it for what is: a symptom of a dangerously disordered outlook.

Third, there was no psychological rift between 2012 and 2016 that could warrant Gray disowning his words as those of ‘a completely different person’, and no moral rift that could warrant Burnley dismissing them as a ‘historical’ evil. Gray is the person now that he was four years ago, and in 2012 anyone who was not a monster would know that gay people do not deserve to burn or die. Moreover, Gray’s views about sex and gender still remain on flamboyantly ignorant display in April 2015, as we see in his pathetic comment about Joseline Hernandez’ pregnancy:

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Fourth, Gray’s assertion that he ‘can only apologise and ask forgiveness’ is absurd. The club is paying him £6 million for three years’ work. If Gray were to return, say, 1/36th of that in compensation for his wrongful conduct, it would only be £167,000. Four weeks of service to those he said should burn or die. So it isn’t true that he can only apologize: he could do more if only he wanted to. Who to compensate? One appropriate recipient would be Sport Allies, who work to eradicate homophobia in UK sport.

Should we, as some suggest, think that Gray’s early life—in poverty, gang-culture, and racism—mitigates his wrongdoing, that it frees him of the responsibilities of any other human being?   No. In this case, the experience of oppression is not a mitigating factor but an aggravating one. Gray of all players should be able to identify the wrong he has done. He is well-placed to know just what it is like to be always at the sharp end of the stick. He would understand the menace in this:

“Is it me or are there blacks everywhere? #Burn #Die #MakeMeSick”.

Gray would never accept a mere apology for ‘any offense’ caused by those words. Neither should we accept his apology–and  neither should Burnley or the Premier League.

 

The UK government’s policies, in style and substance

We have been absolutely clear: it is right that we ring fence national security and investigatory powers, even if many oppose us on an industrial scale, depriving as they do hard-working families of choice in striving for British values in a high wage, low-welfare economy, where never again need anything but English votes stand in the way of a truly seven-day NHS, an end to failing schools, and a reformed Europe. Also, we love Scotland.

Wednesday’s Child: My job description grows again

Every year, my job description gets longer. Research and teaching, obviously, and a share of university administration ancillary to that. (For instance, preparing the Law faculty’s REF submission and, more dangerously, chairing my college’s Coffee Committee [OfCoff!].

For the professoriate, these things have always come with the territory. Now, however, I am also drafted as a delegate authority to assist the government in implementing its political agenda. The UK’s self-destructive policies on migration, including the admission of foreign students, are to be monitored by people like me. I have a duty to report how often I lay eyes on my visa students. (What if Oxford students are not really having panic attacks in the library but are actually off in Isis training camps?) I also have a ‘prevent’ duty to make sure they aren’t being sucked into terrorism. (What if they come to believe John Locke’s claim that one may make a violent ‘appeal to heaven’ whenever the rulers try to govern without consent?)

My own view—I wish the Vice Chancellor would endorse it—is that these new duties must not only be ‘balanced against’ my duty to support academic freedom and my Public Sector Equality Duty to advance the status of protected groups—they must be subject to them.  Academic freedom and social equality should be side-constraints within which any ‘prevent’ duty or duty to monitor migration is exercised. Otherwise, the essential bond of trust between teacher and student will be ruptured, and the status of our universities will be undermined.

Consider this. If I do not see a postgraduate student at least three times in eight weeks, I need to report that to the administration.   If I have concerns about why I have not seen her, I need to report those too.  If I fear a student is being ‘radicalised’ I also need to report that. How will I know? The University has a duty to train me: ‘We would expect appropriate members of staff to have an understanding of the factors that make people support terrorist ideologies or engage in terrorist-related activity.’ Of course, the University can’t know what ‘factors’ cause support for ‘terrorist ideologies’ until it knows which ideologies are actually ‘terrorist’. No worries— ‘BIS offers free training for higher and further education staff through its network of regional higher and further education Prevent co-ordinators. ‘ I am not making this up.

Today, I learn that the government is pressing ahead with legislation to ensure that the security services have access to a year’s worth of our online data, including a complete list of every website you accessed. (If you haven’t done so, download Tor now, and browse with nothing else until this legislation is repealed or, if you are in Scotland, until independence frees you from still more English insanity.) The availability of this information will feed into the duty to monitor migration and prevent terrorism.

It isn’t hard to see where this could lead.  I’ve only seen a visa postgraduate twice in eight weeks? Her email says she is away conducting research in Washington. But we can check to see if she has accessed our servers, and from where, and what she is searching for.  We have a duty to keep that data.   A student used to favour power-sharing in Northern Ireland but now jokes that the DUP needs a whiff of gelignite?  I can alert the university to check out his Facebook and Twitter feeds.  Indeed, I must. The statutory guidance says:

‘Radicalised students can also act as a focal point for further radicalisation through personal contact with fellow students and through their social media activity. … Changes in behaviour and outlook may be visible to university staff. Much of this guidance therefore addresses the need for RHEBs to have the necessary staff training, IT policies and student welfare programmes to recognise these signs and respond appropriately.’

It is clear that this government cares little about academic freedom, civil liberties, or social equality. More surprisingly, they seem to care little about the competitive position of our leading universities. (Our opposite numbers at Yale or Harvard are not burdened by any of this–nor by REF or TEF.)   So where are our senior administrators on the issue?  Where is UUK? Where is the professoriate of the ‘elite’ Russell Group of British universities?  I guess they are all off at free BIS training sessions on how to recognize and prevent radicalization among  students.  Or perhaps at job interviews at U.S. universities.

Germaine Greer is right about trans-women

Germaine Greer does not think new clothes, new hormones, or sex-reassignment surgery can turn men into women (or, I assume, women into men).   She is right about that, and a Cardiff University controversy about her planned lecture this month is a tsunami in a teaspoon.

Of course gender is not fixed at birth. Simone de Beauvoir was right that no one is born a woman. Possibly, no one is even born female. Sex is cluster-concept, a bundle of attributes, some of which do not develop until puberty or later. And gender is another cluster-concept.  Gender is constituted by norms and values that are conventionally considered appropriate for people of a given sex. Gender is a lot more vague than sex, and a lot more historically and geographically variable.

But gender has another interesting feature.  It is path dependent.  To be a woman is for the pertinent norms and values to apply a result of a certain life history. Being a woman is not only ‘socially constructed’, as they say, it is also constructed by the path from one’s past to one’s present.   In our society, to be a woman is to have arrived there by a certain route: for instance, by having been given a girl’s name, by having been made to wear girl’s clothes, by having been excluded from boys’ activities, by having made certain adaptations to the onset of puberty, and by having been seen and evaluated in specific ways.   That is why the social significance of being a penis-free person is different for those who never had a penis than it is for those who used to have one and then cut it off.

The path dependence of gender is not unique. Many social categories are shaped by the way they come to take hold. It is one thing to grow up with English as one’s mother tongue, another to speak English as a second language; one thing to be born to privilege, another to be a ‘self made man’; one thing to be raised a Jew, another to be an adult convert. Admittedly, it would be silly to say that fluent learners of English are utterly different from native speakers, that millionaire parvenus have nothing in common with trust-fund babies, or that converts are simply not Jews. These things aren’t black or white. But by the same token it would be just as silly to say they are all simply white. And that is the sense in which MTF transgendered people are not women.

But that is Greer’s point. She says, ‘I just don’t think that surgery turns a man into a woman. (…) I mean, an un-man is not necessarily a woman.’ People focus on her first sentence at the expense of the second. Greer is not saying that MTF people are stuck being men, no matter how they feel, what they choose, how they are seen, or how they are treated. She is not saying that the oppression of transgendered people has nothing in common with the oppression of women.  She is saying that ceasing to be a man does not make one a woman. These things aren’t black or white.

Obviously, the fact that something is true need not stop people taking offense at it. But there is actually no evidence of widespread offense at Greer’s remarks. I called the controversy a ‘tsunami in a teaspoon’ because, contrary to what you might suppose from the press, the students were mostly untroubled by Greer’s comments. Not one in a hundred even felt moved to click on an anti-Greer petition. No serious opposition was mounted; no policy of exclusion was formulated. There was no ‘hecklers’ veto’; in fact, there was a pretty effective hecklers’ veto veto.

So this is all rather puzzling. Greer’s remarks are correct and are neither dangerous nor hateful. The number of critics of students who supposedly want to ‘no-platform’ speakers dwarfs the number of students who want to ‘no-platform‘ anyone.  Maybe the transgender tsunami hit the press, not because of some seismic event in our universities, but because commentators want threats to freedom of speech and inquiry to come from a politically safe source.   And what safer, softer, target than an imaginary recrudescence of virulent PC-ism in our student unions?