How to make your gay students uncomfortable

Professor Louise Richardson, the Vice-Chancellor of Oxford University, is quoted as giving the following awkward if well-intentioned defence of free speech on campus:

I’ve had many conversations with students who say they don’t feel comfortable because their professor has expressed views against homosexuality. (… ) And I say, ‘I’m sorry, but my job isn’t to make you feel comfortable. Education is not about being comfortable. I’m interested in making you uncomfortable. If you don’t like his views, you challenge them, engage with them, and figure how a smart person can have views like that.

In later qualification, Professor Richardson explained that she wasn’t talking about ‘many’ conversations here at Oxford.  I believe that.   I also believe Professor Richardson knows her legal obligations under the UK Equality Act to ensure the university is a comfortable place for its LGBT communities to do what we are all here to do: to teach, to research and to learn.  In any case, most of what needs to be said to remind her of that obligation, as well as her obligation to defend academic integrity from incompetence and quackery, has already been said.

Except, I think, for two points.

First, how does it come to be that any university teacher is expressing ‘views against homosexuality’ in a class?  I’m baffled. Maybe it was a seminar on human sexuality, moral philosophy, or human rights law.  But what if it was on quantum mechanics, modal logic, or numerical analysis? Maybe a university policy on sex discrimination or free speech was under discussion.  But what if it was merely that the rainbow flag was flying, and that gave the professor a homosexual panic attack? These distinctions matter.

I expect my gay law students to be willing as anyone to test the view that sexual orientation should be a prohibited ground of discrimination, or to be able to assess arguments about same-sex marriage. I do not expect them to have to put up with the casual homophobia of everyday life, with irrelevant or biased comments or examples, or with the stench created by some professor’s religious incontinence.

Second, where debate about homosexuality is relevant, it does not fall only on students to tackle false, ill-informed, or unsympathetic views on the part of teachers. And it certainly does not fall mainly on gay students to do so. It falls on all of us, starting with the Vice-Chancellor.

In my own fields, there are only two or three faculty whose homophobia intrudes in their work. Their disapproval of homosexuality is usually gracious, emollient, and even, in its twisted way, ‘reasoned’. I am less troubled by them than I am by pusillanimous  colleagues, tenured liberal faculty who regard such views as outrageous or pathetic, but who never dare put pen to paper, or even a hand in the air, to join in the argument and, in that properly academic way, help make their gay students more comfortable.

As Professor Richardson says, ‘If you don’t like his views, you challenge them, engage with them’.  But she should also have said, to her colleagues as well as to her students, ‘and this means you.’

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.

 

Are there any ‘theoretical disgreements’ about law?

In this illuminating new article, Brian Leiter amplifies his criticism of Ronald Dworkin’s treatment of so-called ‘theoretical disagreements’ in law.

http://leiterreports.typepad.com/…/theoretical-disagreement…

Why ‘so-called’? Well, Dworkin made up not only the term but the thing. He was the most inventive legal philosopher of our time. (Also, and contrary to a common belief, he could be a very nice guy. Another day, I will tell you about his kindness to me when my mother was dying and, unknown to me, so was Ronnie.)

Here is is a conjecture that suggests an explanation different from, but not incompatible with, Leiter’s:

A theoretical disagreement is a disagreement about what the law actually is (to the extent that there is actually law) in a case where most competent lawyers agree on *all* the ordinary historical and other empirical facts about what relevant people have thought, said and done. These lawyers are said to disagree *only* about how these agreed, empirical facts ‘make law’–that is, on the *bearing* of all ordinary facts on the law.

Now, the standard(s) that determine the bearing of ordinary facts on the law are usually called ‘recognition rules’, or, to be more precise ‘ultimate recognition rules’.  (Some subordinate recognition rules are themselves matters of law.  That is why neither the US Constitution, nor any part of it, is ‘the rule of recognition’ in US law.)  The existence and content of these ultimate standards are matters of (ordinary) facts, a bit like the facts that determine the existence and content of the rules that provide the criteria for grammaticality in a natural language. (To the extent that there are facts about that: some sentences in a language are neither clearly grammatical nor clearly ungrammatical.)

So there are theoretical disagreements only if there are cases in which (a) there is law, (b) the existence or content of which is subject to disagreement among most competent lawyers, (c) who nonetheless agree on *all* the ordinary facts.  But that set is empty:

Suppose the contrary. Then it must be the case that some disagreeing, competent lawyers are correct in their claim about what the law actually is, and others incorrect. (They might be incorrect in thinking it is the law that not-p, while it is actually p; but they might also be incorrect in thinking that the law is indeterminate, that it requires neither p nor not-p.)  It follows that there are at least at least some ordinary facts about which those very lawyers disagree: to wit, what are the recognition rules of the legal system in question? Any legal disagreement that turns on an ordinary disagreement is not a ‘theoretical disagreement’, as Dworkin defines that term.

Suppose, now, that our Dworkinian  replies: ‘this begs this question. There *are* no ‘”recognition rules” that determine the bearing of facts on law.’ This is no help. Whether or not *there are* any recognition rules is a matter of ordinary fact. A recognition rule is a matter of social custom and practice.  Lawyers who disagree about whether they exist disagree about a matter of ordinary fact. So these lawyers do not have a ‘theoretical disagreement’ either.

Some philosophers never see a ditch they wouldn’t mind dying in.  So they go on to reply, ‘You’ve misunderstood. My claim is that what *you* call ‘recognition rules’ are not exhausted by what *you* call ‘ordinary facts’.  I say they include what I call “moral facts”.’  (Sidebar comment: a lot of legal philosophy–well, a lot of philosophy actually–works by the selective deployment of skepticism.  For example, a roll of eyes over ‘recognition rules’  combined with a fond batting of lashes towards ‘moral facts’ that somehow fix the law.)  But this isn’t a matter of verbal legislation, surely.  One person who says that the ultimate standards determining what counts as law are exhausted by ordinary facts, and another who says they are not, disagree about the nature and content of those very standards, whatever we call them.  One side is  presumably not saying that it is a bad idea, or regrettable, that the ultimate standards  in law should be (what most call) recognition rules.  They are saying that the ultimate standards are not recognition rules at all.   If other competent lawyers deny *that* then they do deny a certain matter of ordinary fact: that there are what most people call recognition rules.  They deny what others assert–that in every legal system there are at least some rules whose existence is a matter of ordinary human thought, speech and action and which determine the existence and content of law  So, again, they do not agree on all matters of fact while disagreeing on the content of the law.

But then how should we characterise their disagreements?  Leiter, in the above piece, sets out some plausible alternatives. None of them requires that we acknowledge the existence of ‘theoretical disagreements’ about the law.

 

 

 

 

Israel’s Bar Ilan University: letting the side down yet again

Professor Hanoch Sheinman is one of Israel’s most distinguished legal philosophers. Like many thoughtful Israelis, he deplores the illegal and oppressive aspects of Israel’s foreign policy.  He is not shy about this. During the 2014 Israeli assault on Gaza, Sheinman introduced a bland housekeeping email to his law students by saying he hoped it,

‘finds you in a safe place, and that you, your families and those dear to you are not among the hundreds of people that were killed, the thousands wounded, or the tens of thousands whose homes were destroyed or were forced to leave their homes during, or as a direct result of, the violent confrontation in the Gaza Strip and its environs.’

Many of Sheinman’s right wing students were enraged. How dare a professor express political views in a work email? How dare a Jewish law faculty employ such a person? How dare anyone suggest the moral equivalence of innocent Israeli and innocent Palestinian lives?

Bar Ilan University’s Dean of Law, Shahar Lifshitz, sided with the outraged students, announcing that their complaints were justifiable: ‘[The] Letter from Professor Sheinman – both content and style – is contrary to the values ​​of the University and the Faculty of Law.’ He continued, ‘This is abuse of power by a lecturer who exploits his position as a jurisprudence teacher to send messages reflecting his views, which are highly offensive to the feelings of students and their families. ‘ Lifshitz promised to deal with Sheinman in due course: ‘I assure you that the matter will be handled with the appropriate seriousness.’

Now one might debate whether a politically charged email is protected by academic freedom. Still, it seems to me that I should be permitted to introduce an email by writing, for example, ‘I hope this finds you healthy and well, and that you have not been driven to food banks as a result of the Government’s policies on student loans.’ That might be gauche or inappropriate—I imagine that my Conservative students and colleagues might think so—but it would be ludicrous to say it amounts to an ‘abuse of power’ or the ‘exploitation’ of a professor’s position.

In any case, even if Professor Sheinman’s comment was not protected by academic freedom, Dean Lifshitz’s threat was condemned by it. For it is clear that by ‘appropriate seriousness’ Lifshitz did not mean ‘the degree of seriousness appropriate to an otherwise innocent, one-off comment that gravely offends some students’ (viz: a degree of about zero). No; Lifshitz plainly meant a degree of seriousness that might warrant formal reprimand, or worse.   When Deans make threats like that, they do not need to carry them out in order restrict the academic freedoms on which teaching, learning and scholarship depend. That they show themselves ready to do so is enough. If there was any ‘abuse of power’ or ‘exploitation’ of one’s position in this matter, it was on the part of Dean Lifshitz.

As is common in cases like this, everyone could see that except the victim’s own colleagues. They mostly went scurrying for cover. (Advice to junior faculty: never get between your senior colleagues and their own self-image.) It fell to outsiders to defend Sheinman. Bad press, the intervention of the Association for Civil Rights in Israel, pressure from hundreds of foreign academics, and threats of lawsuit eventually induced Lifshitz to think again. On reflection, he acknowledged that he had mis-spoken in promising the students that Sheinman ‘will be handled’.

A story at The Leiter Reports now suggests that Lifshitz has been having second thoughts all over again.  A poisonous atmosphere, angry students, and a truculent administration have paved the way for an  ‘interim review’ being imposed on the as-yet-untenured Sheinman.   His lawyers claim that this procedure has been set up without proper university authority, that it is imposed retroactively, and that Sheinman has not been given reasonable opportunity to prepare for it. I have been told by sources close to the Bar Ilan administration that they expect Sheinman to be in trouble on the teaching side. (It is inconceivable that Sheinman’s research could be found wanting; he is more able, and already much more distinguished, than all but a few of Bar Ilan’s tenured law faculty.) Given that outraged students led the charge against Sheinman in the first place, and that the Dean encouraged them, nothing would be less surprising than for Sheinman to be confronted with bad student evaluations. It is amazing that he even manages to continue his research in such a poisonous atmosphere.

You may be tempted to roll your eyes and say, as Rick does to Ilsa in Casablanca, ‘the problems of three little people don’t amount to a hill of beans in this crazy world.’ But it is precisely because academic life in Israel has become so crazy that this matters so much. Bar Ilan’s image problem is nothing new. After all, its law faculty is the alma mater of Itzakh Rabin’s murderer; it is a university where male students can be kicked out of lectures for refusing to wear a kippa, where the administration can demand that faculty defend the contents of their books, and where gay students are prohibited from holding events on campus. Life in the bush league, you say? Maybe; but put this in the national context. Israel’s universities are all struggling to resist the academic boycott movement. Bar Ilan is, shall we say, not exactly helping the cause. Many Israeli academics feel under intense pressure to show that they are not just lackeys of Brand Israel. The Bar Ilan law faculty are doing nothing to help them either.

The latest criticism has now elicited a ‘reply’ from nine of Bar Ilan’s tenured law professors.   Their letter is embarrassingly irrelevant.   Were it a first year student’s answer to a statement of claim it would get a failing grade. It does not even notice, let alone answer, the gravity of the charge: that, as applied, this particular review is unfair and is motivated by Bar Ilan’s desire to silence faculty who, like Sheinman, infuriate their right-wing students. Instead, they irrelevantly say that other law faculties have interim reviews, and they reaffirm their touching faith that ‘Prof. Sheinman’s political views will have no bearing on the committee’s evaluation of his performance. Neither will the letter that Prof. Sheinman sent to students during the 2014 war in Gaza.’

Clap your hands if you believe.

 

 

 

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?

The real reason there are so few women judges

British lawyers and the British public are angry with Lord Sumption’s urging to go slow on sex equality to avoid the ‘appalling’ consequences to our legal system that could come from striving to get more women on the bench.

How out of touch can a Supreme Court judge get? (That is not a trick question.) Many people are appalled by the things Sumption explicitly says. I am as troubled by what he implies and—especially—by what he presupposes.

Sumption says that: the reason there are so few women judges in the UK is that female lawyers make a ‘life style choice’ to avoid the kind of work that would make them eligible to become judges; that the English Bar that provides such work is ‘a very meritocratic institution’; and that fifty years would be a short time to wait for sex equality on the bench.  The first two claims are false or misleading; the third is repugnant.

Sumption implies that: there is not now a large enough number (NB: not percentage) of women making that ‘life style choice’ for things to improve any sooner, and that there is serious suggestion of a remedy that could lead to ’85 percent’ of appointments going to women.  I’m sure those claims are  implied and not asserted because to assert them would call attention to their absurdity.

Sumption presupposes that: judicial office is something that should only come ‘at the end of a successful career at the Bar’. One should do it as a kind of personal sacrifice, out of loyalty to ‘a long cultural tradition which is genuinely based on public service’.

Never mind that, in Britain as elsewhere, desire for a judical appointment is as often based on personal or political ambition as on noblesse oblige.  More important is this:

Why presuppose such things about a judicial career? Shouldn’t judging be a job whose pay and conditions enable people to do it without having already banked a fortune as a successful lawyer? Why presuppose that a certain kind of practice is a desirable, let alone necessary, qualification for appointment to the senior judiciary? Sumption himself says that this kind of practice involves ‘frankly appalling’ working conditions. So why presuppose that a high-stress, narrowly focused, socially prestigious, financially lucrative career–often in London–is an ideal qualification for being a judge?

When we think of the appeals courts in particular, and the sort of decisions needed there—decisions about delicate questions of law that could reasonably go either way, decisions that require a sense of judgment and justice,  decisions that profit from broad knowledge of our society and from ordinary human empathy—these are not things for which high-pressure, high-salary, super-lawyers have any special qualifications. Perhaps the contrary.

Brilliant judges—including brilliant women judges—could easily be found amongst in-house counsel, lawyers who went into business, lawyers in public service or in small firms, perhaps even amongst law teachers in universities.

The presumption that the tiny circle of our elite Bar is the best or natural training ground for judges is one of the things that entrenches the sexism of our courts. The main problem is actually not the attrition of women from the careers that Sumption thinks make for good judges; it is presuppostion that those careers make for good judges.

Wednesday’s Child: The New vs The True

A paper by a junior scholar greatly impressed me. I thought it should be published. A distinguished philosopher did not share my view: ‘It’s warmed-over Rawls,’ he wrote, in a curt letter of rejection.

Now, I could see for myself that the central claim of the paper wasn’t completely new. But it was, I thought, completely true. And its case for a familiar truth was different from—though not inconsistent with—other arguments to the same conclusion.  So why the obsession with the new?

This misery has company elsewhere, including in the social sciences.   I do not only mean that, when others try to replicate famous ‘findings’, they cannot get the same results. I mean that hardly anyone tries to replicate anything.   You can see why. Replication is expensive and unoriginal. Editors do not fight over a paper that argues that the findings of an earlier paper are all correct. Hence, there is a high prior probability that a lot of what finds its way into print is rubbish. (And then that rubbish is cited, and the citations re-cited, by philosophers who want their work to be ‘continuous with’ the advanced social sciences.)

In the humanities we do not have the excuse that originality is cheaper than replication. Admittedly, some of our work is not truth-apt, and some that is truth-apt is not truth-oriented (for instance, because it is bullshit). But I imagine that most of us hope that our claims about things like justice or law are, if not true, then true-ish.   Yet our collective behaviour reveals a strong preference for the new over the (merely) true.

In my own fields, the pursuit of novelty has bad effects: one can be pretty sure that the next general theory of law will be more daft than the last one. And in moral and political philosophy writers continually ‘discover’ principles that no one in the history of humanity ever heard of.

The novelty-fetish has further  knock-on effects.   It isn’t enough for ideas to be new; others need to acknowledge that they are new, so small novelties get over-emphasised, and the errors of past writers exaggerated. No longer are others merely mistaken, misguided, or muddled—their claims must be ‘ridiculous’, ‘disgraceful’, or ‘ludicrous’. These epithets have various meanings, but they have a common use. They are all ways of pleading, ‘Don’t read him! Read me, me, ME!’

Though not excusable, this is understandable. Most of us write for a serious audience of a few hundred, of whom maybe a couple of dozen actually engage our work. (Legal and political theorists who imagine they have ‘impact’ in the halls of power, or even literature, mostly live in a hall of mirrors.) To lose a few precious readers to the judgment that our work is warmed-over Rawls (or Mill, or Marx…) feels like an amputation without anaesthetic.

We need to get over that.   David Hume exaggerated when he wrote of political philosophy that, ‘New discoveries are not to be expected in these matters.’ But he was not ridiculously, ludicrously, or disgracefully mistaken.   Here as elsewhere, Hume was mostly right—though with some one-sided over-emphasis.   And there was nothing new in that either.