tag:blogger.com,1999:blog-70821737748154173672024-03-13T20:24:20.703+00:00Wild and whirling wordsI'll cavil on the ninth part of a hair.Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.comBlogger55125tag:blogger.com,1999:blog-7082173774815417367.post-6357008660502156952020-09-20T22:14:00.000+01:002020-09-20T22:14:20.017+01:00Structural injustice – a critique<p><span style="font-family: georgia;">The death of George Floyd and the ensuing focus on inequalities faced by black Americans and Britons has seen much discussion of ‘structural injustice’ or ‘structural unfairness’. The concept raises uneasy questions. That the UK is structurally unequal, against various groups, is indisputable. It is indisputable too that, as a decent society, we should investigate the causes of those inequalities so we can remedy them. But the assumption that our structural inequalities must be the result of some sort of endemic injustice is questionable. And the notion of a collective injustice, enacted through a structure rather than by morally responsible individuals, is itself an injustice – and, for those combatting inequality, probably self-defeating.</span></p><h4 style="text-align: left;"><span style="font-family: georgia;">What is structural injustice?</span></h4><p><span style="font-family: georgia;">Belief in what is currently labelled ‘structural injustice’ tends to assume that evidence of inequality is proof of an underlying structure of unjust prejudice. This involves conflating clear instances of injustice – for instance the killing of George Floyd – with statistical inequalities, for instance the disproportionate frequency with which members of a certain community are arrested. </span></p><p><span style="font-family: georgia;">It is asserted that the unfair event is merely one instance in a structure of injustice, which causes and explains the wider statistical pattern of inequality. This structure derives from the (indisputable) racism that characterised our society in the past. The disadvantages our predecessors unfairly and knowingly imposed on minority groups are inherited in the present day as cycles of poverty, and disbelief that meritocratic advancement is possible. Whereas the majority, even though they may no longer hold expressly discriminatory beliefs, inherit an ‘unconscious bias’ which perpetuates the cycle of unfairness.</span></p><p><span style="font-family: georgia;">The argument that structural inequality is caused by structural injustice ultimately relies, whether explicitly or implicitly, on the notion of some subliminal prejudicial malice or ‘force’. Indeed, it couldn’t be otherwise. There is in present-day Britain too little evidence of explicit identity-based malice to claim that it amounts to a structural problem. The only option is to point to the isolated instances of prejudice that do occur (and which indeed can be frightful) and postulate that they form merely the tip of an iceberg – they are the visible manifestations of a much wider, hidden of network of prejudice that underlies and shapes our entire society.</span></p><h4 style="text-align: left;"><span style="font-family: georgia;">Inequality vs. injustice</span></h4><p><span style="font-family: georgia;">Inequality needs to be distinguished from injustices such as racism or sexism. ‘Inequality’ describes a statistical fact, where goods are distributed unequally in a society. It is morally bad or unsatisfactory if a society is unequal. It is virtually certain that an unfair society will also be unequal, and it is often the case that unequal societies are also unfair. However inequality does not necessarily arise from some morally wrong act such as discrimination. </span></p><p><span style="font-family: georgia;">Injustice, on the other hand, is a moral wrong. It is the failure, for which some other person can be held responsible, to treat a person in accordance with their dignity. A society that deprives members of certain benefits – educational opportunity, legal fairness – on the basis of their ethnicity, or any other immutable characteristic, would be both unequal and unjust. Such a society would, moreover, be unequal because of its injustice.</span></p><p><span style="font-family: georgia;">So asserting that persistent inequality is an injustice has certain effects. It imposes moral (or even legal) liability on those treating others unfairly, who are in turn entitled to a remedy for their mistreatment. When the alleged wrong is ‘structural’, and enacted by society as a whole, how then can we know who should be liable, and who has been wronged?</span></p><h4 style="text-align: left;"><span style="font-family: georgia;">Is justice ever ‘structural’?</span></h4><p><span style="font-family: georgia;">It isn’t clear what ‘structural’ injustice is. Can justice be done ‘structurally’? Or does justice proper always concern the treatment of individual persons?</span></p><p><span style="font-family: georgia;">Consider a case where an individual had suffered unjust discrimination, for reasons of race or gender or sexuality. In weighing up the case, we would (one hopes) pay no attention to whether society is otherwise structurally fair to that individual and his or her group, or whether the mistreatment in question did anything to disrupt the overall structure of fairness. </span></p><p><span style="font-family: georgia;">Doing so would be simply bizarre. The treatment of others has no bearing on whether the individual in question has been wronged. The wrong to that individual cannot be mitigated or excused (or amplified) by appeal to wider trends, or to social ‘forces’ or structures. The treatment of the individual is the sole relevant measure of fairness. </span></p><p><span style="font-family: georgia;">The wrong may have had the effect of enforcing a social structure – by rejecting the victim as a despised ‘other’ alien to the majority. And the wrong may have been part of a trend whereby such wrongs are regularly committed against persons belonging to the victim’s group. But the wrong still consists in the failure to treat the victim with the dignity he was due – that measure of dignity does not change in light of how others are treated. It is inalienably his as an individual person, and only as such. Therefore it cannot be averaged down in relation to the group he belongs to, and nor can it be increased or decreased by virtue of his belonging to that group (as would happen e.g. in a caste system).</span></p><p><span style="font-family: georgia;">A utilitarian approach where fairness is measured in aggregate, according to the structural whole, risks serious injustice against the individual. We know where this leads – real wrongs suffered by individuals are dismissed as statistically trivial, and ‘structural’ wrongs are blamed on other individuals who may be entirely blameless. </span></p><p><span style="font-family: georgia;">We insist on the individual as the measure of fairness precisely because we know so well the brutality that ensues from utilitarian alternatives.</span></p><h4 style="text-align: left;"><span style="font-family: georgia;">Group injustice</span></h4><p><span style="font-family: georgia;">So if structural, or aggregate, injustice is irrelevant in fair assessment of whether an individual has been wronged, does it follow that it is always irrelevant because justice always, ultimately concerns individuals? I suspect it does follow.</span></p><p><span style="font-family: georgia;">It might be fairly objected that of course the measure of fairness in individual cases must be the individual him or herself, because his or her treatment is the issue at hand we are trying to resolve. However this approach can’t suffice when we consider unfairness against social groups as a whole.</span></p><p><span style="font-family: georgia;">Here too, however, the ultimate measure of fairness will, irresistibly, be the individual. Two specific reasons stand out. First, the alleged structures of unfairness are so unpredictable, and so inconsistent in their workings, that we can only tell whether they are at work by abandoning any assumption of a structure, and instead adopting assessing cases individually. Second, social groups only have moral status by virtue of the individuals that compose them.</span></p><h4 style="text-align: left;"><span style="font-family: georgia;">Inconsistent structures</span></h4><p><span style="font-family: georgia;">When are structures at work, and how do we know when they drive our actions?</span></p><p><span style="font-family: georgia;">To give a rough domestic example – there are, no doubt, various inequalities between my wife and me, for instance in the division of labour around the house. These might be said to be manifestations of a structural injustice. If that is so, then what explains other non-structural inequalities in her favour – regarding salary, say? If the injustices between men and women are structural, then it is unclear what pattern the structure takes and what determines when the structure applies and when it doesn’t. The occurrences of injustice cannot be random, as then they would not be structured or ‘systemic’. </span></p><p><span style="font-family: georgia;">Now turn to a more contentious example – the killing of George Floyd. This was an example of two structural inequalities – the high rate at which African-American men are stopped or arrested by police, and the high rate of violence (including unlawful violence) used against them during arrest. </span></p><p><span style="font-family: georgia;">Only a court can decide the matter, but it seems beyond doubt that Floyd’s death at the hands of police was an injustice and a crime. The court will also presumably rule on whether the killing was racially aggravated.</span></p><p><span style="font-family: georgia;">However the officers’ suspicion that he had committed the crime of using forged currency, and the decision to arrest him, were not obviously motivated by racist malice – though, again, that may be for a court to decide. It seems at least arguable that officers would have suspected, and arrested, any citizen in those circumstances. </span></p><p><span style="font-family: georgia;">The ‘structure’ of racism seems to have operated unevenly – it cut out and cut back in again. The structure wasn’t ostensibly, or necessarily, at work in driving the officers to arrest him, but it probably was at work in motivating them to inflict unlawful violence. One instance of inequality (the killing) was almost certainly an injustice, but the other (the arrest) probably was not. The aggregated statistics – the details of the inequality – won’t get us anywhere in deciding whether there was an injustice.</span></p><p><span style="font-family: georgia;">Let’s say instead that the officers were motivated purely by racist malice in arresting Floyd, and by sheer luck it turned out that in fact there were legitimate reasons to suspect he had carried out an offence. Even so, we could not know this unless we had assessed the individual case and explored the officers’ motives – structural injustice theory errs by falsely presuming, without evidence, what we in fact do not know.</span></p><p><span style="font-family: georgia;">So even in the most flagrant example of injustice against a member of a marginalised group, we cannot assume that injustice underpins every inequality, or that the justice of the matter can simply be read off from aggregated statistics. The alleged ‘structure’ of unfairness is an unconvincing explanation because it is so unpredictable. It does not have the patterned regularity that we expect of a structure. If it really is the determining cause of inequality, then what explains the gaps in the structure where it does not produce the expected effect? There may well be something going on, and it may be unjust in some way – but the evidence is too patchy and inconsistent to infer the hidden, monolithic structure of injustice that social justice theory posits.</span></p><p><span style="font-family: georgia;">To say that an instance of inequality is an instance of injustice, we have to look at the individual case, not just the statistics. And having looked at the individual cases, we must then, and only then, ask ourselves if in aggregate they constitute a pattern or structure of unfairness. If they do, then our society is indeed structurally unfair. That case has not yet been made out.</span></p><h4 style="text-align: left;"><span style="font-family: georgia;">Groups are not persons</span></h4><p><span style="font-family: georgia;">The second reason for rejecting a notion of group justice – social groups only have moral status by virtue of the individuals that compose them.</span></p><p><span style="font-family: georgia;">To do justice is to allot to someone the treatment that is properly due to them – in accordance with their innate dignity as persons (i.e. their human rights), with their merits, and also with their actions (e.g. by way of punishment for crimes). But there is no fair way we could measure a group’s merits or wrongs ‘structurally’ such that we could reward or punish them according to their due. Any group reward or punishment would almost certainly result in undue, and therefore unfair, punishment or reward of certain individuals. Contrary to what justice demands, we would not treat like cases alike.</span></p><p><span style="font-family: georgia;">Leaving aside artificial constructs such as bodies corporate and other ‘legal persons’, we have no measure, either in law or morality, of what is due to a group of persons considered as an entity. Any attempt to protect a group’s human rights, or any other entitlement to dignity, would only succeed if it protected the fundamental dignities of the individual members of that group – only individuals can exercise such rights as freedom of expression, for instance, or choosing to participate in a protest, or the right to a fair trial. Any claim that the group’s rights or entitlements had been infringed could only be assessed fairly by individuating the claims. </span></p><p><span style="font-family: georgia;">A group does not have ‘personhood’ – it is not an entity that has identifiable rights and duties attaching to it that can be enforced. The group’s individual members do, however. Any attempt to assess properly and fairly an injustice towards a group will inevitably devolve into an assessment of how that group’s individuals are treated. If all or most of those members have their rights infringed, or are otherwise treated unfairly, then and only then can we talk of a structural injustice. Appeal to vague ‘structures’ of mistreatment might suffice in asserting sociological generalities, but they cannot suffice for determining moral and legal rights and wrongs.</span></p><p><span style="font-family: georgia;">Indeed, social justice advocates often seem to accept as much. The most vocal protests against alleged structural injustices derive much of their moral force from striking mistreatment of individuals such as George Floyd or Eric Garner. The rot sets in with the next, unwarranted shift in the argument – the claim that these indisputable injustices result from a hypothetical ‘structural’ malice, that the same malice causes persistent inequality, and that the privileged majority are therefore morally responsible for both in equal measure.</span></p><p><span style="font-family: georgia;">The social justice advocates may well turn out to be right – it could be that, if we recorded instances of individual injustice, we would see a clear structured pattern of unfairness towards individuals belonging to certain social groups. In that case, our society would indisputably be structurally unfair, and we should urge its reform. </span></p><p><span style="font-family: georgia;">So why not simply assume that society is structurally unjust, if that would be the likely outcome of any investigation into individual instances of injustice? The answer to that, I argue next, is because the consequences of such an assumption are repugnant, and harmful to the pursuit of fairness.</span></p><h4 style="text-align: left;"><span style="font-family: georgia;">Fairness towards the majority</span></h4><p><span style="font-family: georgia;">However distasteful it may seem, we must also be fair to the majority that is alleged to inflict structural injustice, whatever their alleged privilege. If we must presume that structural inequality is a structural wrong, then who is responsible? On what grounds is it fair to attribute responsibility? And will the attribution of responsibility ultimately further the aim of ensuring just treatment of all persons, including those alleged to be victims of structurally unfair treatment?</span></p><p><span style="font-family: georgia;">It is clear that structural inequality is not necessarily the result of wrongdoing that should be remedied and/or punished – or at least, that it is odd to treat it as such. Much democratic political debate concerns the reduction of structural inequalities – in education, income, access to resources – but political parties do not compete with one another by offering voters ever more generous ‘compensation’ packages or by pledging to punish the wrongdoers who inflict the inequality. Rather, they propose to undo the inequality by way of reform. It is an established principle of our political morality that we do not remedy social inequalities in the same way that we remedy wrongs done by and to individuals.</span></p><p><span style="font-family: georgia;">The structural injustice critique rejects that principle. Structural unfairness is both a social problem, and a moral wrong committed on undeserving persons by responsible persons. We must perform, and demand from others, penitence for the wrong of structural injustice.</span></p><p><span style="font-family: georgia;">We should apply the same principle that we apply in assessing whether a group has been treated unjustly – in the individual case, has someone done a wrong for which they should be held responsible? Any other approach would merely result in further injustice – the accusation of a ‘structural’ wrong would unfairly condemn individuals guilty of no malice, whatever the bad actions of some of their fellow citizens. Any demand that such individuals do penance, or suffer some detriment by virtue of their complicity in a structural injustice, would fall foul of the just prohibition of collective punishment.</span></p><p><span style="font-family: georgia;">It may be argued – and, in veiled terms, it sometimes is argued – that the injustice of a blanket accusation of structural injustice is a small price to pay for the injustices past and present done against marginalised groups. In purely commensurate terms, that may be true. But no argument that two wrongs make a right deserves to be taken seriously.</span></p><h4 style="text-align: left;"><span style="font-family: georgia;">Problems of conscience</span></h4><p><span style="font-family: georgia;">All sorts of problems arise when we say that matters of moral conscience are determined by subliminal social forces. Accusations of identity-based malice are extremely serious, so I should know when the ‘structure’ is driving my actions, and what I need to do in order to free myself from the structure. But how can I? If the malice manifests itself through ‘unconscious bias’, then can any conscious attempt at moral reflection and improvement help me, or will the structure just assert itself as a brute social force despite my individual conscience?</span></p><p><span style="font-family: georgia;">This is, I think, important. There is little point in trying to do good, if some overriding social force undermines my good intentions and curses me to complicity in some structural malice. What reward would I get for doing the right thing other than further shame?</span></p><p><span style="font-family: georgia;">Rather strangely, it seems those most willing to accept that they are corrupted by structural injustices are people who are scrupulously conscientious in their attitude to marginalised groups. Many of them have no doubt been schooled in the Jesuitical rigours of social justice theory, and can take in their stride the antinomy of being the best person they can while accepting that the original sin of structural injustice makes their efforts largely pointless. But what of someone who starts out as a bigot? There would be little point in the bigot changing his or her mind, and rejecting prejudicial malice, as they would anyway remain guilty of the unconscious bias that underpins structural injustice. If their bias is unconscious, can they even change their mind? And if his bias is the result merely of social conditioning, then why should he take responsibility for it and attempt to better himself? After all, it isn’t his fault.</span></p><p><span style="font-family: georgia;">Or let’s take the less extreme example of a decent, liberal person who, following a training session, comes to realise all of her unconscious biases. That’s not to be sneered at – it might result in her treating others more fairly. However, could she ever be sure that she is ‘cured’ and no longer part of the structure of unfairness? The training received might be revealing, or educational, but it is not transformational. It doesn’t change her fundamental cognitive capacities. This person was reflective and self-conscious even before she underwent training – if she couldn’t previously understand her own mind and the forces that shape it, then why should she able to in the future? The self-awareness that she gains by doing the training will be as delusory as the self-awareness she possessed previously – the structure can still work its malice on her. If accused of complicity in the structures of unfairness, she would have little or no defence, as her accuser could defeat any claim of self-improvement simply by pointing to the insidious power of structures. What is the point of any attempt at self-improvement in the face of structural unfairness, if it will not result in real progress?</span></p><h4 style="text-align: left;"><span style="font-family: georgia;">A ghost in the machine</span></h4><p><span style="font-family: georgia;">It is unclear whether we could ever defeat accusations of structural injustice, even if our society were to improve dramatically. The charge of structural injustice could, I suspect, be levelled reductively, in any instance where inequality exists. The accusation can defeat any objection that our thinking is being misrepresented, or that we in fact lack the malice attributed to us, because accusers claim special insight into a ‘structural’ mindset that overrides our conscious selves.</span></p><p><span style="font-family: georgia;">Just how far could this be taken?</span></p><p><span style="font-family: georgia;">Imagine a future society in which, through some sort of scientific development, discriminatory malice had been wiped out – say the gene that causes it had been identified and switched off. </span></p><p><span style="font-family: georgia;">Such a society would nevertheless almost certainly contain some inequality between groups, simply because it is highly unlikely that every social good would be distributed in exact proportions to each demographic within that society. Diverse societies are highly unlikely also to be uniform. Some of those inequalities could feasibly become ‘structural’ – through custom, automatic thinking, choice etc., a pattern could be established, even in the absence of discriminatory malice, whereby a certain group would receive an unequal share of society’s advantages.</span></p><p><span style="font-family: georgia;">Even in such a society, the social justice theorist would still have no conceptual difficulty in asserting that the inequality was caused by structural injustice – that no change to our minds, even if wrought physically, could prevent the malign workings of the unconscious; that changes to individuals would do nothing to defeat self-replicating social forces of discrimination; that the legacy of the past, before discrimination was abolished, still determined our actions through inherited vocabulary and institutional structures.</span></p><p><span style="font-family: georgia;">This suggests that even enormous, real achievements in eradicating discriminatory malice could be dismissed out of hand simply by alleging that structural injustice is the cause of inequality. For the social justice theorist, the reality of moral progress and conscience can always be denied, simply because inequality continues to exist, and the ghost of structural injustice can always be conjured to scare away any notion that our society may have the capacity to become fairer.</span></p><p><span style="font-family: georgia;">Perhaps this is taking matters too far. Perhaps, indeed, I am being unfair, and social justice theory is not wholly baseless – it might require certain non-trivial conditions to be satisfied before an accusation of structural injustice can be well made. However, we should be aware of the dangerous overreach inherent in ‘ghost in the machine’ explanations, of which structural injustice is an example.</span></p><p><span style="font-family: georgia;">A ghost in the machine is a causal factor that is posited rather than discovered. An explanation of this kind claims to have identified some underlying cause, or ‘x factor’, that explains why things are as they are – for instance, the claim that structural injustice explains why our society is unequal, or the claim that the existence of the soul explains how we can exercise free will.</span></p><p><span style="font-family: georgia;">Ghost in the machine explanations hypothesise or assert an explanatory principle, which may be helpful in providing a neat and elegant explanation, but unhelpful in that the posited explanatory factor might not actually exist. Indeed, a ghost in the machine explanation might do no more than beg the question, by giving a name to the causal factor being sought, without actually identifying it or proving its existence. Seventeenth-century scientists seeking to explain why certain materials were combustible posited the existence of a fire particle, which they called ‘phlogiston’. They managed to provide an answer to the question ‘what makes certain substances combustible?’ However the answer – ‘phlogiston’ – simply meant ‘that thing which makes certain substances combustible’. It identified a man-made hypothesis, an idea, rather than the physical item that causes fire.</span></p><p><span style="font-family: georgia;">In some cases, ghosts in the machine are easily banished. Scientists abandoned the notion of phlogiston as the cause of combustion because eventually further empirical evidence became available – the existence of oxygen – and they no longer needed to rely on a hypothetical construct.</span></p><p><span style="font-family: georgia;">In other cases, these ghostly explanations can haunt us indefinitely, particularly where empirical evidence to confirm or deny the hypothesis is unavailable – regarding the existence of the soul, for instance, or indeed the workings of structural injustice. These explanations may be unverifiable, but are difficult to dismiss because they are also unfalsifiable – perhaps some mysterious trans-mental malice does lurk in the unconscious minds of white heterosexual males, and this explains patterns of inequality? I can’t say I know for a fact that it doesn’t. </span></p><p><span style="font-family: georgia;">The ghost in the machine is doubly difficult to banish if denying its existence is blasphemous or, as in the case of structural injustice, might lead to denunciation, damage to reputation or even loss of one’s job.</span></p><p><span style="font-family: georgia;">That structural injustice theory is a false belief, or a fiction, is not necessarily harmful in itself – people are free to believe in fictions, and it is churlish to chastise someone simply because they hold an irrational belief when I think they should not. If a fiction is harmful, however, then its persistence, and its resistance to rebuttal, is a serious problem and a legitimate concern for us all.</span></p><h4 style="text-align: left;"><span style="font-family: georgia;">Why this matters</span></h4><p><span style="font-family: georgia;">This matters because structural injustice is a pernicious fiction. It is likely to harm us. It holds that social conditioning overrides our ability to reason about morality as individuals – that individual conscience is powerless before the depredations of subliminal social forces.</span></p><p><span style="font-family: georgia;">This is dangerous and wrong. It is demeaning to deny individuals’ capacity for moral agency and conscientiousness. If we are simply the programmable plaything of social forces, then we are less than fully human. It is beneath the dignity of each of us to accept the arguments of social justice theorists.</span></p><p><span style="font-family: georgia;">This is not to say that we do not at times think automatically, or accept received wisdom uncritically. It would be absurd to say that the unfair treatment of women in our society in centuries past resulted from a majority of men each deciding individually, by way of conscious reflection, that women should be treated as second-class citizens. That seems simply improbable. The lives of women improved, however, because members of our society – female and male – were not limited to the systemic, automatic thinking of their day. They defied accepted wisdom by changing their minds – they believed in, and effected, fairer laws and social customs. </span></p><p><span style="font-family: georgia;">Theories of structural injustice are harmful because they risk ruling out that possibility. They make social structures all-powerful, and encourage us to believe that conscious belief and moral reflection have no power to change them.</span></p><p><span style="font-family: georgia;">We need to believe, and ought reasonably to believe, that acts of conscience are efficacious and can change society. The civil rights movement of the 1960s, and indeed the Black Lives Matter movement, did not arise from some sudden surge in structural fairness. They came about because people changed their minds about what is fair. Members of those movements believed that acts of conscience could change the minds of others and could change the world for the better.</span></p><p><span style="font-family: georgia;">Reducing structural inequality is unquestionably a worthwhile and necessary aim for our society. It will enable more persons to flourish to their fullest extent, maximising the happiness of individuals and their contribution to our society’s success. Achieving that goal will require the belief, held in good faith, that we are doing the right thing – that actions from conscience can be effective, that minds can change, and that we are not the mere plaything of structural forces. The theory of structural injustice undermines all of those necessary conditions of making society more just. </span></p><h4 style="text-align: left;"><span style="font-family: georgia;">Conclusion</span></h4><p><span style="font-family: georgia;">Structural injustice is not a meaningless term. In apartheid South Africa, black individuals were systematically treated unfairly, in accordance with express legal requirements – a clear structural injustice. In Northern Ireland prior to the reforms of the 1970s, Roman Catholics were subject to systematically unfair treatment, not through expressly discriminatory laws but through discriminatory behaviour which, in its regularity and consistency, could be called ‘structural’. </span></p><p><span style="font-family: georgia;">If it can be shown that British society systematically treats individuals unfairly on the basis of their identity, whether by law or by convention, then we must conclude that Britain is indeed a structurally unjust society, and should advocate urgent reform.</span></p><p><span style="font-family: georgia;">Even if it could not be established that our society mistreats individuals in a structural or systematic way, Britain would undoubtedly be an unjust society if it tolerated recurring patterns of inequality and made no efforts at reform. In a society built on just principles we would never say that, so long as all citizens are treated equally by the law and given equal opportunities, we needn’t care about enormous disparities in quality of life between communities. Even if such inequality is not caused by injustice, indifference to such inequality and the suffering it entails would itself be a form of injustice. It cannot credibly be argued that Britain has made no efforts towards remedying inequality between groups. But we should keep in mind that, unless those efforts are sustained, then the charge of structural injustice will be hard to deny. </span></p><p><span style="font-family: georgia;">Structural injustice advocates have taken a different route, positing structural injustice as an underlying social force that drives inequality. Even though I do not find such arguments convincing, they are nevertheless understandable. </span></p><p><span style="font-family: georgia;">What if structural inequality in fact is caused by individuals being systemically mistreated on the basis of their identity, but we simply can’t prove it? It could be difficult, even impossible, to establish the facts about billions of decisions and social interactions, particularly in the absence of explicitly discriminatory laws and practices. Given that persistent inequality is an urgent problem, it is understandable that in response some people grasp at a hypothetical explanation, rather than wait indefinitely for an explanation that might never materialise.</span></p><p><span style="font-family: georgia;">In this instance, however, relying on a bad explanation is, however understandable, is likely to be more harmful than having no explanation at all.</span></p><p><span style="font-family: georgia;">We should take time to reflect on the problems of what is labelled structural injustice and, in my opinion, we should reject it as a concept. That rejection would not be an achievement in itself, but merely the necessary prelude to a more open-minded and patient investigation into why equality persists in our society.</span></p>Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com1tag:blogger.com,1999:blog-7082173774815417367.post-7314598650469617612020-08-13T22:08:00.002+01:002020-08-13T22:08:56.551+01:00A constitutional commission<p style="text-align: left;"><span style="font-family: georgia;">The Constitution, Democracy and Rights Commission should consider the establishment of a permanent constitutional commission. The role of the permanent commission would be to issue non-judicial advice to assist courts in deciding cases that concern the UK’s political constitution, and to advise ministers in proposing constitutional legislation to Parliament. </span></p><p></p><ul style="text-align: left;"><li style="text-align: left;"><span style="font-family: georgia;">The purpose of establishing a constitutional commission would be to: </span></li><li style="text-align: left;"><span style="font-family: georgia;">protect the political character of the British constitution; </span></li><li style="text-align: left;"><span style="font-family: georgia;">create a body that can state authoritatively the principled basis of that political character; </span></li><li style="text-align: left;"><span style="font-family: georgia;">encourage through dialogue greater judicial cognisance of the constitution’s political domain, and of the limits of the legal domain; </span></li><li style="text-align: left;"><span style="font-family: georgia;">establish a clear mechanism by which ministers, in response to the commission’s advice, will propose constitutional legislation to reverse or codify judicial decisions; </span></li><li style="text-align: left;"><span style="font-family: georgia;">review and improve other constitutional legislation proposed by ministers; and </span></li><li style="text-align: left;"><span style="font-family: georgia;">educate the public on the workings of the UK’s political constitution.</span></li></ul><p></p><h4 style="text-align: left;"><span style="font-family: georgia;">Why a constitutional commission is necessary</span></h4><p style="text-align: left;"><span style="font-family: georgia;">The UK’s exit from the European Union is a reassertion of political, democratic control over our country’s supreme legal order. However the prolonged public debate that preceded Brexit revealed a troubling indifference to Britain’s political constitution, among the educated and even among some legislators. Exit from the EU’s highly legalistic order will not by itself automatically restore political constitutionalism. The UK must take steps to relearn the institutional and cultural balance between law and politics that characterises a political constitution. Such balance can, necessarily, only be restored through institutional dialogue and cultural change, not by the legal power of a single body. </span></p><p style="text-align: left;"><span style="font-family: georgia;">The prorogation case of 2019 demonstrated that the Supreme Court lacks the institutional competence, and perhaps the inclination, to safeguard the constitutional balance between law and politics. Parliament, which must on occasion legislate quickly in response to the pressures of the day, cannot, unaided by authoritative guidance, be expected to prioritise at all times the conventions of an ancient constitution. </span></p><p style="text-align: left;"><span style="font-family: georgia;">This paper proposes the constitutional commission as a means of finding that balance again. It would advise, and mediate between, our constitutional decision-makers in both the courts and in Parliament, while preserving the legal authority of the courts, and enhancing the constitutional legitimacy of both.</span></p><p style="text-align: left;"><span style="font-family: georgia;">In cases touching upon the political constitution, courts would be compelled to refer relevant constitutional matters to the commission, and take account of its subsequent advice. The commission in turn would have discretion to advise ministers on any legislative changes necessitated by a court decision. Ministers would also be required to seek commission advice before laying constitutional legislation before Parliament. In either case, ministers would either have to follow the commission’s advice, or state before Parliament their reasons for not doing so. Further details of the commission’s proposed workings are given below.</span></p><h4 style="text-align: left;"><span style="font-family: georgia;">The benefits of a constitutional commission</span></h4><p style="text-align: left;"><span style="font-family: georgia;">The commission’s work would improve the quality and legitimacy of constitutional jurisprudence. Judicial attempts to encroach on the proper domain of political constitutionalism would have to be justified, or abandoned, in response to Commission advice delineating the parameters of that political domain. Judges would need to defend the merits of judgments which, while lawful, might nevertheless be unconstitutional. The quality of such judgments, and the courts’ constitutional oversight generally, would be enhanced by judges’ new obligation to take account of the polycentric factors of the British constitution that extend beyond law alone.</span></p><p style="text-align: left;"><span style="font-family: georgia;">A judiciary less ready to encroach upon the newly asserted domain of politics would be less likely to stray into public controversy, and more likely to preserve its crucial popular legitimacy. Legal changes that might otherwise be criticised as judicial ‘power grabs’ could be inoculated from such criticism if carried out with respect for impartial and authoritative advice on the limits of judicial power.</span></p><p style="text-align: left;"><span style="font-family: georgia;">The legitimacy of Parliament would also be enhanced by the establishment of the commission. Constitutional legislation will frequently be controversial. Legislation proposed in good faith to reverse an over-reaching court decision is liable to be denounced as a populist affront to the rule of law. Further, the constitutional merit of legislation can sometimes be overshadowed by perceptions of political opportunism. Obtaining the prior approval of the commission would remove or diminish the grounds of such criticisms. It would also, moreover, improve the quality of any eventual act passed by Parliament.</span></p><p style="text-align: left;"><span style="font-family: georgia;">The commission’s work would also clarify and shape the ongoing development of the constitution. Dialogue between judges and the commission could helpfully identify the point where a legal principle becomes, within the wider framework of the political constitution, a legal fiction or mere formality. The commission could also clarify existing, and identify new, constitutional conventions, especially those which may escape judicial notice.</span></p><p style="text-align: left;"><span style="font-family: georgia;">Finally, the commission would have considerable educational benefit. The Brexit debate, for instance, would have been enormously improved by authoritative and impartial advice on the political-constitutional limitations of parliamentary sovereignty, and the democratic significance of referendums. </span></p><h4 style="text-align: left;"><span style="font-family: georgia;">The functioning of the constitutional commission</span></h4><p style="text-align: left;"><span style="font-family: georgia;"><u>Judicial reference mechanism</u></span></p><p style="text-align: left;"><span style="font-family: georgia;">The High Court and senior courts (and their Scottish and Northern Irish equivalents) would have an obligation to refer relevant constitutional matters to the commission for advice. It is proposed in preliminary terms that a relevant constitutional matter:</span></p><p></p><ul style="text-align: left;"><li style="text-align: left;"><span style="font-family: georgia;">is in issue in proceedings;</span></li><li style="text-align: left;"><span style="font-family: georgia;">concerns the extent of the power of one or more of the arms of the state, but does not concern:</span></li><ul><li style="text-align: left;"><span style="font-family: georgia;">the interpretation of statutory language or any common law decision conferring any such power; and</span></li><li style="text-align: left;"><span style="font-family: georgia;">the rights of any individual; and</span></li></ul><li style="text-align: left;"><span style="font-family: georgia;">is a matter of general public interest and importance.</span></li></ul><p></p><p style="text-align: left;"><span style="font-family: georgia;">In addition, a court would have discretion to refer any constitutional matter which in its judgment required the commission’s advice. </span></p><p style="text-align: left;"><span style="font-family: georgia;">A refusal to make a reference could, on the usual grounds, give rise to grounds for appeal if the court had wrongly interpreted the statutory provisions determining when a reference is to be made.</span></p><p style="text-align: left;"><span style="font-family: georgia;">The commission would be obliged to provide advice upon matters properly referred to it. The court would then be obliged to take that advice into account in making its decision. The commission’s advice would, like expert evidence, be evidence of fact, not law. </span></p><p style="text-align: left;"><span style="font-family: georgia;">The independence of the courts in making judgment would not be fettered in any way. A court could, having taken into account the commission’s advice, decide to disregard it. However, as the commission would have power to advise the government to bring legislation in light of court decisions on constitutional matters, it is suggested that courts would prefer to enter into a dialogue with the Commission if the alternative might be legislation overruling their decisions.</span></p><h4 style="text-align: left;"><span style="font-family: georgia;">Legislative advice</span></h4><p style="text-align: left;"><span style="font-family: georgia;">The commission would have discretion to issue legislative advice in response to a final court decision on any constitutional matter, whether or not any court had made a reference to the commission during proceedings. A minister would then have to lay a bill enacting the commission’s proposals, or make a statement to Parliament giving reasons why the government chose not to. </span></p><p style="text-align: left;"><span style="font-family: georgia;">To aid good-faith dialogue between courts and the commission, in instances where the commission had already advised a court, it could not subsequently resile from that advice in any legislative advice it provided to the government, unless specific circumstances applied.</span></p><p style="text-align: left;"><span style="font-family: georgia;">The commission would be obliged to issue legislative advice requested by a minister for the purpose of proposing any legislation on a constitutional matter. The minister would then have to lay commission advice before Parliament before the second reading of any bill concerning a relevant constitutional matter, and at second reading make a statement before Parliament setting out the government’s response to the commission advice, giving reasons for any decision not to follow its advice. </span></p><p style="text-align: left;"><span style="font-family: georgia;">The government would therefore not be obliged to follow the commission’s advice. It would, however, have to attempt to justify any decision not to do so and face the political consequences.</span></p><p style="text-align: left;"><span style="font-family: georgia;">The Commission would also be obliged to issue legislative advice requested by any sponsor of constitutional legislation other than a minister, and would have discretion to issue advice on all bills relating to constitutional matters of its own accord. Advice in either case would have to be made publicly available online.</span></p><h4 style="text-align: left;"><span style="font-family: georgia;">Conclusion</span></h4><p style="text-align: left;"><span style="font-family: georgia;">This brief proposal has necessarily left much unsaid – the composition of the commission, the appointment process, its remit and accountability, and its cost versus the benefit. It has however summarised the benefits – the commission would future-proof the British constitution against potentially rash changes by both courts and Parliament. It would, if effective, reinforce the incrementalism that has historically protected our constitution, by forcing its decision-makers to pause for reflection. Crucially, this benefit could be achieved without disruptive change to constitutional fundamentals – Parliament would remain supreme, and the judiciary independent.</span></p><div style="text-align: left;"><br /></div>Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-31952455526817611282019-02-19T00:48:00.000+00:002019-02-19T00:48:47.549+00:00Big tech – not the messiah<span style="font-family: Georgia, Times New Roman, serif;">The DCMS Select Committee has delivered its <a href="https://publications.parliament.uk/pa/cm201719/cmselect/cmcumeds/1791/179102.htm" target="_blank">report</a> on fake news and disinformation.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">I haven't read it yet, but i</span><span style="font-family: Georgia, "Times New Roman", serif;">t's interesting how the narcissism of the big tech messiahs influences even its critics. </span><br />
<span style="font-family: Georgia, "Times New Roman", serif;"><br /></span>
<span style="font-family: Georgia, "Times New Roman", serif;">No doubt Sergey Brin wants us to think of Google as an exceptional and revolutionary moment in communications. In some ways it is. But the internet is also just one additional way to access information and communicate with people. There's no good reason our approach to it should be <i>completely</i> different to our approach to previous comms and information systems.</span><br />
<span style="font-family: Georgia, "Times New Roman", serif;"><br /></span>
<span style="font-family: Georgia, "Times New Roman", serif;">So why do big tech's critics so often indulge the self-serving fiction that digital communications deserve special and different treatment?</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Three examples.</span><br />
<br />
<ol>
<li><span style="font-family: Georgia, Times New Roman, serif;">The bizarre (admittedly playful) piece on <a href="https://www.bbc.co.uk/sounds/play/m0002lv5" target="_blank">PM today</a> about whether 'flat earth' evangelists on the web should be policed by fact-checkers hunting out online untruths. When I worked at a Waterstones, I was amazed by the amount of 'mind body and spirit' pap that got sold. But hardly anyone would propose, on national radio or elsewhere, that booksellers or librarians have a duty to refrain from stocking titles that might expose the public to (what they believe to be) untruths. Why is the web different?<br /><br /></span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">The EU law 'right to be forgotten' online is currently before the ECJ. The process of removing search engine links to stories, but not the stories themselves, was likened by one legal commentator to leaving the contents of a book untouched, but removing someone's name from the index. Which only made it seem all the more anomalous – hardly anyone would agree to such court-ordered tampering with books, unless for the usual legal reasons (libel, official secrets etc.). Why is the web different?<br /><br /></span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">The GDPR, together with the electronic privacy regulations, impose stricter privacy limitations on sending out marketing emails than they do on sending marketing letters to our homes. It's easy to see why regulators think of electronic comms as a more pressing mischief – but how many people think of their email inbox as a more private, protected space than their own home?</span></li>
</ol>
<br />
<span style="font-family: Georgia, Times New Roman, serif;">The most egregious example, to add a fourth, is Germany's Network Enforcement Act. It purports to restrict the big online platforms by making them responsible for what users post, and in the process makes them vastly more powerful – a huge number of decisions about lawful freedom of expression are now made by, guess who, the big online platforms.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">It would be preferable if the regulators did what regulators are supposed to do when faced with innovative technology – curb its excesses, and domesticate it. Instead they panic and emphasise the disruptiveness of innovators who more often than not aspire to be disruptive. That's not the check and balance they are supposed to be applying.</span>Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-48698579345881975162018-12-07T02:36:00.001+00:002018-12-07T02:36:25.530+00:00Leavers' vote<div style="text-align: justify;">
<br />
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;"><br />The
UK government has managed to negotiate a deal with the EU that is so bad, it is
equally awful to both the winners and losers in 2016. Some achievement.</span><span style="color: black;"><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;">The
deal <i>does </i>look rather close to what the Labour party was
asking for until recently. As far as I can understand, Labour's agreed Brexit
position is that they still don't actually have one, but they do agree that
they want a general election. If they win, they can go from being an opposition
with no agreed position on Brexit, to being a <i style="mso-bidi-font-style: normal;">government</i> with no agreed position on Brexit.</span><span style="color: black;"><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;">Perhaps
electing a life-long eurosceptic to lead the UK's main pro-EU party, one year
ahead of a referendum on EU membership, was a mistake.</span><span style="color: black;"><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;">Defeat
in Parliament, which we're told is inevitable, might provide the opportunity to
amend the Northern Irish backstop, if the EU can be convinced that conceding
small but crucial changes could prevent no deal – or prevent the EU being
lumbered with a truculent and volatile UK for the foreseeable future, an
outcome just as bad again for both parties.</span><span style="color: black;"><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;">Leavers
who resisted it at the time should probably have the good grace to thank those
Remainers who insisted on a meaningful vote in Parliament. And with the same
breath, they should curse the unforgivable stupidity of those same Remainers
who insisted we should make no preparations to leave without a deal. As was
loudly pointed out at the time, if no deal isn't an option, there'll be no
choice but to accept any old deal on offer – which is where we are.</span><span style="color: black;"><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<h3 style="text-align: justify;">
<span style="color: black;"><o:p><span style="font-family: Georgia, Times New Roman, serif; font-size: small;">A Leavers' Vote</span></o:p></span></h3>
<div class="MsoNormal" style="text-align: justify;">
<span style="color: black;"><o:p><span style="font-family: Georgia, Times New Roman, serif;"><br /></span></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;">The
most desirable outcome is amendment of the Withdrawal Agreement (as argued <a href="https://argumentativerags.blogspot.com/2018/11/heading-for-no-deal.html" target="_blank">here</a>). If the EU
won't agree to reasonable amendments to the backstop protocol, or if Parliament
won't approve such an amended deal, then there will finally be grounds for a
People's Vote – or, to ditch that dismally transparent euphemism, a 'second
referendum'. </span><span style="color: black;"><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="color: black;"><span style="font-family: Georgia, Times New Roman, serif;">Leavers
should abandon the notion that a second referendum is necessarily a gateway to
remaining. Some of their opponents seem to believe that, with unwarranted
certainty, and they are probably wrong. A Leavers' Vote is well winnable.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="color: black;"><span style="font-family: Georgia, Times New Roman, serif;">Remain
face a stiffer challenge than the one they flunked in 2016, and there's been
little sign of any meaningful reflection over why they lost then, and what they
should do differently second time around. Leave would, once again, have a big
and hard-to-beat message, which they would run again and again – that abandoning
our previous decision to leave, and remaining, would be a forced move. We would
be staying because the EU had decided, as a matter of policy, to offer
intolerable terms of exit, and because the UK government (specifically the
Treasury) had deliberately blocked the alternative escape route of leaving
without an Article 50 deal. Choosing to remain would mean that our
constitutional settlement (which EU membership impacts greatly) and our trading
arrangements would be determined, essentially, by duress. That would be an
unhappy, unsustainable, and unconscionable state of affairs. No amount of
questionable economic forecasting, or indignation at red buses, would turn that
into a rational decision.</span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="color: black;"><span style="font-family: Georgia, Times New Roman, serif;"><br /></span></span></div>
<h3 style="text-align: justify;">
<span style="color: black;"><span style="font-family: Georgia, Times New Roman, serif; font-size: small;">Grounds for a Leavers' Vote</span></span></h3>
<div class="MsoNormal" style="text-align: justify;">
<span style="color: black;"><o:p><span style="font-family: Georgia, Times New Roman, serif;"><br /></span></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;">The
grounds for a second referendum are fairly simple. The government can have no
grounds for believing, or gambling, that any one of the three available options
complies with the mandate issued by the 2016 referendum. To choose any of them
would therefore require fresh consent from voters, and to proceed without it
would risk overturning a democratic decision made on a large turnout – which is
to say, would risk enormous dysfunction. </span><span style="color: black;"><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="color: black;"><span style="font-family: Georgia, Times New Roman, serif;">We
have happily moved beyond the argument that the 2016 referendum result can be
disregarded as 'merely advisory' – an argument that was only heard from the
losing side <i>after </i>the vote, and not <i>before </i>it
when they stood a chance of winning (in which event the result would have been,
presumably, binding as all hell).<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;">Those
grounds:</span></span></div>
<ol>
<li><span style="font-family: Georgia, Times New Roman, serif;"><b>Remain</b>: This is, at the moment, the only option that has been clearly ruled out by voters.<br /><br /></span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;"><b>The deal</b>: What May and Robbins have negotiated falls pitifully short of delivering on control over laws and money. May could take a risk, and gamble that her deal is close enough to what voters demanded that it would satisfy the mandate – but unless she's privy to some fancy insider information, that's not a sensible gamble. The cost of gambling and losing could be a schism between Parliament and the majority of voters.<br /><br /></span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;"><b>No deal</b>: It seems likely that few people voted Leave in 2016 in the contemplation that there would be no deal at all. Even if this is not true, a referendum would be the only practical way to leave without a deal viable – Parliament will not countenance leaving with no deal, but could be compelled politically to take that option if a referendum result mandated it.</span></li>
</ol>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;">All
three options are new courses of action that, to be taken, would require a new
decision from voters. If they are the only options available, a new referendum
must follow, provided of course that an extension to Article 50 could be agreed
by all EU member states. The EU has said that they would be prepared to extend
the Article 50 period in order to allow for an election or referendum, so it is
not an impossibility.</span><span style="color: black;"><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<h3 style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">Option 1: Remain vs. Leave redux</span></h3>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="color: black;"><span style="font-family: Georgia, Times New Roman, serif;">If
there is consistent and credible evidence of a change of popular opinion
against Brexit, such that asking voters to choose again between leaving and
remaining would not be otiose and waste of time when there is none to spare,
then the 2016 question should be put to voters again, but only if the following
conditions were met: </span></span></div>
<div class="MsoNormal">
</div>
<ol>
<li><span style="font-family: Georgia, Times New Roman, serif;">Remain can only be on the ballot if it is known a) that A50 can be revoked and b) what conditions if any the EU would impose on the UK following revocation, especially regarding the UK's exemptions; and<br /><br /></span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">It is clearly understood that, in the event of a leave vote, it would be left to Parliament to decide whether to leave with May's deal or with no deal; if the present situation recurred and Parliament rejected both May's deal and no deal, then a further referendum would follow so voters could make the decision whether to leave with the/no deal.</span></li>
</ol>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"></span></div>
<span style="font-family: Georgia, Times New Roman, serif;">There are all sorts of questions about procedure – would any A50 extension leave enough time for two referendums? Could Parliament and the Electoral Commission pre-prepare for the potential second referendum in scenario 2 at the same time as preparing for the first, or would the legislation and Commission approval have to wait until the outcome of the first remain/leave vote – and if so, would the A50 extension period leave enough time for this.</span><br />
<div>
<br /></div>
<h3 style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">Option 2: Remain off the ballot</span></h3>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;">If,
on the other hand, there is no consistent and credible evidence that a
leave/remain ballot would deliver a different decision to the one voters made
in 2016, then voters should be asked simply if they wish to leave with May's
deal or no deal. </span><span style="color: black;"><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;">There
would be difficulties. It is possible some EU member states would not be
prepared to extend A50 for the sake of a referendum that did not, or might not,
allow for the possibility of remaining. Similarly, the benefit of an extension for
the UK would be that it would allow time for the preparations for no deal that are
necessary to make it a halfway-viable option – however it is likely that some
member states (or one predictable member state at least) would be unwilling to
allow the UK that benefit, as the EU would then sacrifice the enormous leverage
it has as a result of the UK's lack of preparation for no deal. </span><span style="color: black;"><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<h3 style="text-align: justify;">
<span style="color: black;"><o:p><span style="font-family: Georgia, Times New Roman, serif;">The 'People's Vote'</span></o:p></span></h3>
<div class="MsoNormal" style="text-align: justify;">
<span style="color: black;"><o:p><span style="font-family: Georgia, Times New Roman, serif;"><br /></span></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;">If
the UK left with May's deal, then there should be an understanding that
Parliament could vote at a later date on whether to hold the 'People's Vote'
that some Remainers have been demanding – that is, a further vote held
when voters are in possession of the facts about future trade with the EU,
which wasn't the case in 2016 and wouldn't be the case in the scenarios above.
In accordance with that stated purpose of the People’s Vote (emphasis on <i>stated</i>),
such a vote would have to be held when we know the facts – i.e. after trade
negotiations between the UK and EU have concluded, and the legally binding
terms of the deal are on paper. </span><span style="color: black;"><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;">By
that point, of course, we will have left the EU. The People's Vote would
therefore have to be a choice between accepting the trade deal negotiated
between the parties, or rejoining the EU as a new member state, as provided by
Article 50. EU membership would be an option, but remaining would not.</span><span style="color: black;"><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;">It
was always the case, since the Lisbon Treaty was agreed, that voting 'with all
the facts' could only be done <i>after</i> we had left. Under the
terms of Article 50, the trade deal can only be negotiated once the member
state leaves and becomes a third country, which makes perfect sense. The EU
couldn't conclude a new trade treaty with one of its own members – that's what
the founding EU treaties are for. Until conclusion of the new treaty, A50
allows only for a non-binding political declaration of what the parties plan to
agree in the future.</span><span style="color: black;"><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><span style="color: black;">So
the proposition of People's Voters that we could have a second referendum where
Remain is on the ballot <i>and</i> where we know the terms of the future
deal was always a non-starter (see <a href="https://briefingsforbrexit.com/the-peoples-vote-is-a-bad-idea/" target="_blank">here</a> for my thoughts on why the arguments for PV were always broken-backed). But Remainers will of course be free to agitate
for a vote to rejoin.</span><span style="color: black;"><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div align="center" class="MsoNormal" style="text-align: center;">
<b style="mso-bidi-font-weight: normal;"><span style="color: black;"><span style="font-family: Georgia, Times New Roman, serif;">
<hr align="center" size="2" width="100%" />
</span></span></b></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="color: black;"><span style="font-family: Georgia, Times New Roman, serif;">A
future referendum or two might finally, after much misguided agitation for one,
be justified. It might even get us out of this mess. But it would also be
divisive – and maybe, depending on the EU’s position, impossible.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="color: black;"><span style="font-family: Georgia, Times New Roman, serif;">The
viability of another referendum is not, however, a reason why we should have
one. Now that a further referendum is justified and viable, its usefulness is
as a threatened outcome – if the government does not do everything it can to
amend the Northern Ireland protocol, to make it consistent with the 2016 vote (and
with the national interest), then it must face up to the inevitable consequence
of another popular vote, and all of its difficulties.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="color: black;"><span style="font-family: Georgia, Times New Roman, serif;">There
is, in legal theory at least, the possibility of using the ‘referendum lock’ of
the European Union Act 2011 to force the government to hold and win a
referendum as a condition of increasing the power of an EU competence. The
legal arguments about whether the Act can be used in the Brexit context, having
been drafted with treaty amendment in mind rather than exit from the treaties
altogether, are fairly diverting, and it is interesting that both Leavers and
Remainers have flirted with using the Act to force the government’s hand.
However, the Act cannot serve to impose pressure on the government, as the
power to repeal the Act is also in the government’s hands, by virtue of the
European Union (Withdrawal) Act 2018.<o:p></o:p></span></span></div>
<br /></div>
Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-36418053436565266842018-11-16T14:30:00.000+00:002018-11-16T14:30:03.860+00:00Heading for no deal<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">The proposed deal could be just about acceptable, if certain crucial amendments were made. In its current form, it is not acceptable. </span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">The deal is unacceptable because it imposes onerous and unequal terms on the UK, in the form of the backstop, while the pledges contained in it to avoid the backstop coming into force, or to end it if it has already come into force, are rendered potentially meaningless by lack of detail and clarity as to how that might happen, and how the parties could enforce the pledges agreed to.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<b><span style="font-family: Georgia, Times New Roman, serif;">Amend the backstop text</span></b></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">The text of the Northern Ireland protocol makes positive noises about avoiding a backstop. The EU and UK ‘shall use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part’ – the boilerplate ‘best endeavours’ has been held up by the government as a negotiating triumph, incidentally. </span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">Article 2 of the Protocol makes provision for a subsequent agreement that will supersede the backstop agreement.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">There is also, at article 20, a review mechanism that would allow both parties to assess whether (presumably following either a trade deal, or the introduction of sufficiently unobstrusive border surveillance technology) the backstop could be ditched:</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<blockquote class="tr_bq" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">If at any time after the end of the transition period the Union or the United Kingdom considers that this Protocol is, in whole or in part, no longer necessary to achieve the objectives set out in Article 1(3) and should cease to apply, in whole or in part, it may notify the other party, setting out its reasons. </span></blockquote>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">The Article 1(3) objectives are broadly worded:</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, "Times New Roman", serif;"><br /></span></div>
<br />
<ul>
<li style="text-align: justify;"><span style="font-family: Georgia, Times New Roman, serif;">to address the unique circumstances on the island of Ireland</span></li>
<li style="text-align: justify;"><span style="font-family: Georgia, Times New Roman, serif;">to maintain the necessary conditions for continued North-South cooperation</span></li>
<li style="text-align: justify;"><span style="font-family: Georgia, Times New Roman, serif;">to avoid a hard border </span></li>
<li style="text-align: justify;"><span style="font-family: Georgia, Times New Roman, serif;">to protect the 1998 Agreement in all its dimensions.</span></li>
</ul>
<br />
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">After the giving of notice, the Joint Committee of UK ministers and their EU counterparts will meet to discuss it. The exit from the backstop would work as follows:</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<blockquote class="tr_bq" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">If, following the consideration referred to above, and acting in full respect of Article 5 of the Withdrawal Agreement [duty of full mutual respect and good faith], the Union and the United Kingdom decide jointly within the Joint Committee that the Protocol, in whole or in part, is no longer necessary to achieve its objectives, the Protocol shall cease to apply, in whole or in part. In such a case the Joint Committee shall address recommendations to the Union and to the United Kingdom on the necessary measures, taking into account the obligations of the parties to the 1998 Agreement.</span></blockquote>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">As nice as all of this would be nice if it came to pass, the process is laced with ambiguity.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">There are no specific tests for what adequate protection of the Good Friday Agreement should look like. When would a border be too hard for the purposes of article 1(3)?</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">Because no criteria for satisfying the ‘unique circumstances on the island of Ireland’ are specified, the parties in turn are not obliged to acknowledge such sufficient steps as might be made. Say the text had instead specified, for instance, a degree of border facilitation that both parties agreed would obviate the need for a hard border. Had that been the case, then if the UK were one day to propose a demonstrably and suitably viable facilitation scheme, the EU would be bound to accept it as a ground for disapplying that part of the Protocol. It would be held to its commitment.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">What we have instead is a wide scope for one of the parties to dismiss resolutions proposed by the other party, even if those steps might objectively lead to the outcome. The wording leaves plenty of room to reject any argument that the standard set by art. 1(3) has been met – ‘border would still be too hard’, ‘the GFA protection proposed isn’t adequate protection’ etc.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">The commitment to negotiate with ‘full mutual respect and good faith’ would be a weak obstacle to any unreasonable attempt to defeat the exit provision. Bad faith is hard to prove, however blatant it may feel, and given that exit from the backstop will require consensus, it would be a nuclear button – good luck getting agreement after accusing your negotiator of acting in bad faith. Criteria of adequacy would be a much more effective safeguard to enforce reasonable behaviour among the parties – no one gets hurt by the accusation they have misconstrued the definition of when border facilitation is adequate.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">This is anyway all rather academic. As weak a protection as article 5 is, there are no signs that such protection as it offers could be enforced. There is no clear enforcement mechanism for the backstop.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">We know that under article 8 of the Protocol, the UK may not seek arbitration on matters of mutual recognition as they apply, under the backstop, to Northern Ireland.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">We know too that article 15 rules that the Protocol, inasmuch as it touches upon EU law, is to be interpreted in strict conformity with EU case law – stricter conformity, that is, than will be imposed on UK judges interpreting the Withdrawal Agreement after the end of the transition.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">But in the event that EU negotiators acted in outright bad faith, in breach of the agreement, then we don’t know precisely how the UK could force the EU to stick to what it agreed. Inasmuch as we can guess how it would be fudged, the outcome would be likely to be disproportionately bad for the UK. Enforcement would be delivered either through the provisions of the Withdrawal Agreement proper – that is, under the indirect jurisdiction of the CJEU – or under the direct CJEU jurisdiction provided by the Protocol. </span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">In other words, the EU’s own court will be likely to decide the matter – a miserable travesty of basic fairness. Nor, note, is this a Brexiteer fetish – both the Law Society and the House of Lords EU Committee advocated strictly neutral arbitration of the Withdrawal Agreement.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">The EU’s court will to decide, too, whether in its judgment the UK has merited self-government, or whether it should remain an EU satellite.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">The danger here is real, not abstract, not legalistic. It is reasonable to assume – in fact it is almost certain – that despite the joint commitments made to avoid it, the persistence of the backstop will disproportionately favour the EU’s interests. As long as the UK is under it, it will not be able to compete with the EU by adopting a more competitive regulatory regime. Moreover, the spectacle of the UK tethered, humiliated and voiceless will be a useful demonstration to other restive member states of the consequences of trying to leave – rather like the captive foe paraded in the Roman triumph, that reminder of the folly of trying to resist Rome.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">The UK will have every reason to escape the backstop, so that it can once again be free to make decisions and regulate its trade according to its own interests. The EU will have good reason to keep it in place for long as it can. </span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">The UK government must revise the text of the agreement to ensure there will be a fair, clear and objective procedure for balancing, and if necessary ignoring, the competing interests of the EU and UK in this matter, so that the necessity or otherwise of the backstop can be judged according to its proper agreed purpose.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">There is, admittedly, an argument from practicality which says that, even if the Protocol could be gamed by the EU, fears about being trapped in the backstop are overblown. It would be such an anomalous, bizarre situation, for an economy the size of the UK to be an EU satellite, that it would prove unsustainable. Even the French – the EU’s Brexit hardliners – are said to have conceded as much.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">But that is cold comfort. It would mean the UK would only become a sovereign state, free to determine and legislate for its own interests, when the leading member states decided that we had ‘had enough’, or when the whole thing had become a bit embarrassing. We cannot gamble our future as a self-governing nation, able to act in its own interests, on what Emmanuel Macron thinks reasonable and practicable. It would be simply absurd and demeaning for any nation, whatever its economy, to have its fate determined in that way.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">Even if it risks no deal, and even if it takes a change of Prime Minister, the UK must re-negotiate this part of the Protocol and insist on objective tests for removing the backstop, and an independent tribunal to adjudicate on whether those tests have been satisfied. </span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">Guy Verhofstadt may assert that the text may be amended no more, but this might not be true. It has probably already been butchered by the negotiating process – presumably at some point there were provisions for enforcement in the Protocol, which the EU would only have agreed on the basis (legally unavoidable, they would say) that the CJEU be ultimate arbiter of any aspect touching upon EU law. They may have been subsequently removed when the UK balked, thus leaving the current bleeding chunks. Unilateral exit was never on the cards, even if it was worth a shot.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">Indeed the wording of article 20 hardly looks final:</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<blockquote class="tr_bq" style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">If, following the consideration referred to above, and acting in full respect of Article 5 of the Withdrawal Agreement, the Union and the United Kingdom decide jointly within the Joint Committee that the Protocol, in whole or in part, is no longer necessary to achieve its objectives, the Protocol shall cease to apply, in whole or in part. In such a case the Joint Committee shall address recommendations to the Union and to the United Kingdom on the necessary measures, taking into account the obligations of the parties to the 1998 Agreement.</span></blockquote>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">That seems to say that the backstop will end when the ministerial Joint Committee decides it can. If so, what will be the purpose of the further ‘recommendations on necessary measures’? Will the backstop actually only cease when those measures are taken? Or will the necessary measures merely be the steps needed to implement the decision taken by the Joint Committee?</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">Suffice to say, there are good reasons to argue that this text needs further work, in various ways. It cannot be agreed without it.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><b>Ditch the backstop?</b></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">Say the UK government convinced the EU to amend the agreement text – would that be enough to make the deal desirable?</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">No, but might it be tolerable, just about, under duress?</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">Amending the text won’t remove the fundamental problem with the backstop – that it is virtually guaranteed to deliver a worse trade deal than we would otherwise get. If the EU offered even a very bad deal, which was only minimally better than the backstop, the UK would have no option but to accept it – the alternative would be worse, and we would be bound in international law to accept it if we turned down the initial offer. The UK will have no leverage to push for a deal in its interests. The EU could simply sit mute at the negotiating table, confident that come 1 January 2021 the backstop will be triggered, and the UK will be kept safely in the EU’s regulatory orbit with no say over the rules.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">That will always be the case as long as the UK is forced to agree to the liability under a deal – specifically indemnifying Ireland, at great cost, against any harm caused by Brexit – before it receives any commitment as to the benefits. The risk of the backstop could be worth bearing, if the risk could be balanced against the benefits. If the EU mooted a lucrative trade deal, then the UK should reasonably moot putting its money where its mouth is. And if the EU promised, then the UK should also promise.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">The sequencing imposed by the EU means that the EU moots a trade deal, in the political declaration, and in return the UK must promise to put its money where its mouth is.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">No government should choose to expose to such risk the interests of the country it represents. It’s a quaint idea, perhaps, but I like to think a government would do no less to protect its nation’s interests than a lawyer for his or her client.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">The question is – does the UK still have an effective choice, if the alternative is now no deal? </span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">There certainly was a choice, at one point. The EU’s claim that the backstop was designed to preserve the Northern Irish was either misinformed, or a false pretext, and should have been challenged – no thoughtful, or genuine stance on the Northern Irish settlement could have led the EU to avert discord by preserving one border important to Nationalists, while hardening another important to Unionists. Article 7 of the Protocol shows that the agreement has indeed managed to pay Paul merely by robbing Peter.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">One motivation EU leaders alluded to – to champion the Irish dog in the Ulster fight, out of EU solidarity – was also grossly inconsistent with the Good Friday spirit of cooperation.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">In less adversarial terms, it was also clear that the seminal form of the backstop, in the December report, was broken-backed and didn’t reconcile the differing aims of the two parties. Both could point to the paragraphs on the Irish border and claim different things. Rather than try vainly to hold the other side to an agreement that either didn’t exist between them, or hadn’t been properly formulated, it would have been much better to accept that they hadn’t managed to nail down an agreement on the first go, and return for a second go.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">It is too late now to ask the EU to indulge misgivings that should have been voiced almost a year ago. The only way to reopen the whole issue of the backstop would be to force it open – say if a new Prime Minister took over, extended the negotiating period (no mean feat), and offered the €39bn on condition that the EU agreed to shift the Irish border to the trade negotiations, where it always belonged. It would mean paying a huge amount of money simply to get our negotiating party to do what anyway was merely reasonable and to be expected. Such, however, is the difficulty of negotiating with a hegemon whose actions are justified not by what is reasonable, but by the extent of its power.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">In truth, this looks very unlikely. It seems the UK, if it accepts the deal at all, will have to accept it with the backstop, accept the consequences of its failed approach to negotiations, and see what chances the future will hold.</span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><b>Who’s to blame for this?</b></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">Literally all concerned. </span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Georgia, Times New Roman, serif;">The terms of Article 50 restricting negotiations to two years certainly put excessive pressure on decisions that needed to be made carefully. It’s hard to blame the drafters for that, and still less likely that they contrived it to pressurise any member daring to leave, given that it was drafted either in the expectation that it wouldn’t be used but would be a symbol of the enduring sovereignty of member states, or in the expectation it could be used as a poison pill for undesirable members. Whatever the intention of the drafters, it is clearly true that the EU used the Article 50 time limit as a very effective tool.</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">The time pressure would not have been felt so keenly by the UK if it had delayed triggering Article 50 in order to work out what it actually wanted from negotiations and how it would approach them. The longueurs after giving notice, when the cabinet seemed to have a settled direction on nothing, were shameful. </span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">Advice that is wise after the fact, questioning why the UK did not do more fact finding before rejiggering Article 50, for instance through a Royal Commission, tends to be conveniently forgetful of the pressure that was on May at the time. Not least was the unwelcome and unexpected pressure created by the insistence of some Remainers that they would keep campaigning against a referendum result that, for them, had decided nothing. Maybe my own memory is faulty also, but this seemed to drastically increase the sense that Brexit urgently had to be enacted lest it be strangled at birth.</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">This also highlights the main culpability of Remainers, or at least a significant number of them. The refusal to accept the result (from the start – Gina Miller admitted she called her lawyers on the morning of 24 June 2016) was senseless, and the prime (though not the only) cause of the divisions that followed. Fixation on the weak legal status of the referendum decision blinded them to their blunder – what made the referendum legitimate was the understanding that the result would resolve the argument for the nation as a whole. The shared assumption that, whatever the argument and division leading up to the vote, we would collectively follow where the result led. Rejecting that shared, underpinning assumption pulled the rug from under everyone’s feet. The keystone was the certainty that the result would decide the matter – something Remainers were anxiously certain of in the run up to the vote, or else what were they so worried about? They removed that keystone, and cannot blame others because everything fell apart subsequently.</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">Leavers on the whole won the argument about the big political ideas, but left it far too late to grasp the policy details (hence the backstop disaster). Remainers grasped the details, but still don’t seem to understand the politics.</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">It is also fair to say that Leavers were wrong to predict that the EU would prioritise its trade interests and be quick to make a deal with the UK. Remainers rightly point out the hypocrisy of Leavers lambasting the EU for its rigidity and ideology, and then staking the nation’s future on the EU’s pragmatism.</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">There are two saving graces, however. First, Leavers cannot be damned for failing to predict an EU response to Brexit that was not just rigid and unpragmatic, but also self-harming. The willingness of the EU to acknowledge its fear of the weakness of its union, and the fickleness of its members, has been extraordinary. The aversion to a successful Brexit betrays, quite openly, a misgiving at the heart of the EU that membership might not be the best choice for members, and that alternatives to the union might better realise their ambitions and protect their interests. The clumsy and reckless use of the term ‘cherry-picking’ – which EU leaders seem to think is rather clever – only reveals that some of the central institutions and policies keeping the union together are undesirable mere gristle, which members tolerate in return for the cherry of free trade. Reducing EU membership to this transactional basis is suicidal folly – what basis for the union remains once members realise that the world outside the EU (and it does exist) can offer transactions with better cherry to gristle ratios?</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">The EU’s response to Brexiteers’ appeal to look to its economic interests was unpredictable – it disclosed the unbridgeable gulf at the heart of the project, between the internal perspective of the cadre pushing for ever closer union in itself, and the external perspective of the members, for whom the EU is, fundamentally, a cost-benefit transaction and possibly not a very good one.</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">As with the suicide bomber, how can you grapple with a foe who doesn’t care about his own life or safety?</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">The second saving grace is that Remainers may indeed justifiably lambast Leavers for a naively optimistic view of the pragmatism and flexibility of the EU. It has proved a doctrinaire, hegemonic and inflexible institution. However the Remain argument must continue ‘… and we should continue to give this institution supreme power over our lawmaking and make it the guardian of our prosperity.’ Good luck to anyone chancing their arm with that argument.</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">Finally, the past two years has shown the poverty of the EU’s technocratic approach. The bankrupt ideology of the ‘landing zone’ – a term much beloved of trade wonks – saw the EU use the negotiating process to gradually close down all of the UK’s escape routes, until there was only one landing strip remaining, and that was precisely the spot where the EU wanted us.</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">Once the technical work of marking out the landing zone had been done, the business of landing the deal politically was merely adventitious. The space within the political argument would take place had been marked out by the technocrats.</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">The problem with narrow landing zones is that they tend to make landing a dangerous business. Especially when there are cross-winds – and the political cross-winds in Brexit are fearsome. Whatever difficulties follow from here, including no deal, will be in large part due to the EU’s fetish for expanding the technocratic sphere of influence to the exclusion of political considerations. As the politics of the matter is only temporarily sidelined, not fully suppressed, a backlash is at some point inevitable.</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">The prevalence of this bankrupt philosophy in the EU project, and the dread of the backlash it will one day unleash, are ample reminders of the wisdom of withdrawing from this experiment.</span></div>
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Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-12458993854744112632017-07-07T17:16:00.003+01:002017-07-07T17:40:34.882+01:00Criticism of Sir Martin Moore-Bick – fair or not?<span style="font-family: "georgia" , "times new roman" , serif;">A brief post on former Court of Appeal judge Sir Martin Moore-Bick, who has recently come out of retirement so people can shout at him and tell him what an arse he is.</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">Who'd be a judge ey? I hope he doesn't turn out to a fencer and/or gay, or this might turn into a pile-on.</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">It's possible some of the criticisms aren't entirely unfair, though most probably are. </span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">David Lammy's assertion that Moore-Bick is unsuitable <a href="http://www.telegraph.co.uk/news/2017/07/02/labour-mp-suggests-white-upper-middle-class-grenfell-judge-has/" target="_blank">because of the colour of his skin</a> is beneath contempt. It is also sadly predictable. Far from landing any blows on Moore-Bick, Lammy's outburst, as well as his <a href="https://www.theguardian.com/commentisfree/2017/jun/15/crime-grenfell-tower-burning-homes-police-fire?CMP=share_btn_tw" target="_blank">demand</a> made one day after the Grenfell fire for corporate manslaughter charges, demonstrate much more clearly Lammy's complete unsuitability to continue conducting a <a href="https://www.gov.uk/government/organisations/lammy-review" target="_blank">review</a> into BME criminal sentencing.</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">The accusation from Labour's Emma Coad that Moore-Bick is a 'technocrat' was at least diverting. Are judges technocrats? I'm not sure a public official who facilitates the rule of law can be called a technocrat – a nomocrat maybe? The source of a technocrat's power is his or her knowledge and expertise – a judge's power derives from the law, which he or she expertly applies. That feels like an important difference.</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">It is obviously true to say Moore-Bick is part of the establishment – as an ex-judge he couldn't be anything else. That doesn't make it fair to say he is therefore not impartial. This is probably part of the wider problem of identity politics – if identity determines how people think and act, then impartiality is more or less impossible. I doubt arguments as to Sir Martin's integrity and scrupulousness will do much to defeat this widespread mode of thinking – but it should still be called out for what it is, i.e. prejudice.</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">Similarly, it could well be true to say that Moore-Bick comes across as forbidding and somewhat patrician. When I saw him sit in the Court of Appeal – in a case involving housing law, coincidentally – he certainly had that air. However it would take an extraordinarily closed mind to say that he therefore could not be a fair investigator of facts. I </span><span style="font-family: "georgia" , "times new roman" , serif;">recall</span><span style="font-family: "georgia" , "times new roman" , serif;"> </span><span style="font-family: "georgia" , "times new roman" , serif;">also that he was sharp as a knife.</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">The complaint that Sir Martin would be incapable of sharing Grenfell residents' emotions about the fire may or may not be fair, I don't know. It's certainly harsh. But it is also irrelevant – his job is to investigate the facts, and an emotional investment in the disaster is more likely to hinder than help the investigation. This should be a fairly compelling argument to make in Moore-Bick's favour, but in our new Age of Sentiment it probably carries less weight than it should. Which is a shame.</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">The criticism that Sir Martin specialised in commercial rather than criminal law is similarly irrelevant. If his remit were to decide questions of law, then maybe this would be relevant – but his job is to investigate the facts of how the fire started, and fair and thorough examination of facts and expert evidence is something he has done throughout his judicial career. It is also misleading to exaggerate his commercial specialism – at all stages of his judicial career he will have tried a wide range of cases (presumably including criminal cases when he was a High Court judge).</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">Against all of these criticisms must be set the welter of testimony from barristers and ex-judges to Moore-Bick's integrity and fairness.</span><br />
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<h4>
<span style="font-family: "georgia" , "times new roman" , serif;"><i>Nzolameso v City of Westminster</i></span></h4>
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<span style="font-family: "georgia" , "times new roman" , serif;">The only criticism that might have any real weight concerns Moore-Bick's decision, later overruled by the Supreme Court, in <a href="http://www.bailii.org/ew/cases/EWCA/Civ/2014/1383.html" target="_blank"><i>Nzolameso v City of Westminster </i>[2014] EWCA Civ 1383</a>. Lord Justice Moore-Bick, as he was then, held, with the agreement of two other appeal judges, that it was lawful for Westminster City Council to house a homeless mother and her five children some 50 miles from her previous home, on the grounds that the Housing Act 1996 allows an authority to house applicants in another district if it is not 'reasonably practicable' to house them in their home district. Moore-Bick's reasoning was that determining 'reasonable practicability' must include consideration of the council's resources, staffing, as well as the needs of other applicants requiring housing.</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">The Supreme Court rejected this argument <a href="http://www.bailii.org/uk/cases/UKSC/2015/22.html" target="_blank">on appeal</a>, with a forcefulness that seems to suggest to some that Moore-Bick's decision was perverse. Baroness Hale reversed the decision on the grounds that laws regarding the welfare of children not considered by the Court of Appeal (and possibly not argued before it) weighed against relocation in a different district; that the reasons for the decision to house the claimant outside Westminster were not properly evidenced or explained to her; that the council had not explored other, closer housing options before proposing to house the claimant in Milton Keynes.</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">Baroness Hale's most damning criticism of Moore-Bick's judgment is that he was excessively lenient in assuming that the council's decision makers must have followed the proper steps in coming to their decision, even though there was insufficient evidence for such an assumption. Even though reasons for the decision were not given, Moore-Bick was confident that they would have been the right ones. Were it law, the effect of his judgment could be to deny citizens the right to have decisions by public bodies reviewed – if a citizen did not know how a decision affecting her had been made, then she couldn't see if the decision had taken into account the proper lawful considerations, nor could she apply to a court to enforce the proper decision-making process. It would, in other words, allow a local authority to evade accountability.</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">On the face of it, then, Moore-Bick does seem to have given very generous leeway to the council in this case. It is also impossible not to notice that while his judgment makes mention of the claimant's illness, it is only in the Supreme Court judgment that you read just how unwell and vulnerable she was.</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">On the other hand, however, it is </span><span style="font-family: "georgia" , "times new roman" , serif;">almost certain</span><span style="font-family: "georgia" , "times new roman" , serif;"> that Moore-Bick wasn't motivated by a desire to give local authorities an easy ride, or by a perverse desire to short-change the claimant of her civil rights. He makes clear </span><span style="font-family: "georgia" , "times new roman" , serif;">Parliament's intention in passing </span><span style="font-family: "georgia" , "times new roman" , serif;">the legislation – to relieve pressure on authorities with insufficient housing stock – and also acknowledges the severe pressure on council finances and resources. He also acknowledges the competing needs of others applying for housing. The decision is fairly clearly wrong – the extent of </span><span style="font-family: "georgia" , "times new roman" , serif;">Moore-Bick's</span><span style="font-family: "georgia" , "times new roman" , serif;"> leniency to the council makes </span><span style="font-family: "georgia" , "times new roman" , serif;">the Supreme Court's later rebuke fairly predictable – but it seems to result from an over-readiness to assume that, because Moore-Bick himself understood the urgency of the housing crisis and Parliament's intention to tackle it, the council's decision must have been informed by a similar understanding. He got the balance wrong. It does not follow that Moore-Bick disregarded the claimant's situation, or takes the side of authorities over citizens in need.</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">It should also be said that this is only one judgment, among goodness knows how many others Moore-Bick made. If this judgment is the strongest ground for demanding he step down, then it is right to bring it up and debate its significance, but it can't on its own prove his unsuitability – particularly in the face of the legal profession's unanimous respect for him.</span>Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-30596660800477227512017-07-07T14:16:00.001+01:002017-07-07T14:16:13.612+01:00Govian medicine<span style="font-family: Georgia, Times New Roman, serif;">Typically excellent <a href="https://www.thetimes.co.uk/edition/comment/after-austerity-we-must-build-for-the-future-02ccc7qph" target="_blank">article by Ed Conway</a> in today's <i>Times</i>. Though my opinion on what is excellent economic analysis probably doesn't count for much.</span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">He makes another plea for creative, radical thinking from government in order to exploit the opportunities of Brexit and to solve Britain's productivity puzzle.</span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">The depressing subtext throughout is that our political class is not equal to those challenges. It's likely we'll only find a way to unlock economic opportunities if we first find politicians who are imaginative and open-minded enough to spot and pursue those opportunities when they arise.</span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">Why are such politicians so hard to find? I suspect one answer lies in the execrable Nick Timothy and Fiona Hill. Increasingly, political thinking is done by advisors who understand everything about </span><span style="font-family: Georgia, "Times New Roman", serif;">policy, but little about politics and people – frontline politicians are then mere delivery mechanisms for getting wonk-derived policy out to voters.</span><br />
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<span style="font-family: Georgia, "Times New Roman", serif;">The problem with this lack of joined-up thinking was demonstrated by the social care debacle. The policy was devised without enough input and oversight from elected politicians whose job it is to understand what voters want and what solutions they might accept. When voters rejected it, May was left holding the baby. There was little she could do to credibly defend or adapt the duff policy, because she'd never really owned it in the first place – there's not much the postman can do when Amazon pick the wrong book from the warehouse shelf, other than throw up his hands. And there wouldn't be much he could do about it even if he were compelled to try. Unfortunately, elected officials can't throw up their hands and renounce responsibility – responsibility is their job. May couldn't pass the buck, but neither could she manage the situation effectively because it wasn't </span><span style="font-family: Georgia, "Times New Roman", serif;">fully</span><span style="font-family: Georgia, "Times New Roman", serif;"> </span><span style="font-family: Georgia, "Times New Roman", serif;">one of her own making. So she took the only remaining option, which was to squirm.</span><br />
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<span style="font-family: Georgia, "Times New Roman", serif;">It's surely time to move away from this rigid division of labour between thinkers producing policy content on the one hand and elected politicians acting as quasi-deliverymen on the other. The creative thinking behind policy needs a greater input from the elected ministers who will deliver it and (in an ideal world, perhaps) who have a greater understanding of the people who hold politicians to account and who are affected by their decisions.</span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">That means more politicians like Michael Gove, Frank Field, Oliver Letwin. Even if people don't like Gove, or his politics, we are not going to make the most of opportunities, and improve public life more widely, without politicians like him. Gove and his ilk may be unpopular, but maybe people need to get over themselves – this is a question of necessity. To coin a phrase, there is no alternative.</span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">If the rise of Momentum, and the particular chap they support, continues, then the need for thoughtful politicians –who can decide policy as a matter of issues and principle, instead of mere partisanship – will be all the greater. </span>Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-59783533990039303012017-07-06T01:43:00.000+01:002017-07-06T01:43:33.082+01:00Afghan war crimes allegations 2: The Blackman defence<span style="font-family: Georgia, Times New Roman, serif;">Lord MacDonald, the former Director of Public Prosecutions and current Warden of Wadham College, Oxford, has called for a judge-led inquiry into the ditching of the Royal Military Police inquiry. There is a clear public law question as to whether it was lawful or rational for the MoD to stifle the RMP inquiry, and whether it actually did stifle it. There is also a criminal law question surrounding the soldiers’ alleged conspiracy to plant weapons on the corpses of civilians.</span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">However I’m most interested in whether the RMP could have any success in bringing murder charges, as they intended to, in light of the Court of Appeal’s decision in the Alexander Blackman case. </span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">Blackman had been accused of killing a wounded Taliban militant in cold blood. The video evidence seemed to show as much, and at first instance he was convicted of murder by a military court. The Court of Appeal subsequently agreed in its <a href="https://www.judiciary.gov.uk/wp-content/uploads/2017/03/r-v-blackman-judgment-150317.pdf" target="_blank">judgment</a> that he had the partial defence of diminished responsibility, which led to a substituted conviction for the lesser offence of voluntary manslaughter. Blackman’s responsibility for killing the militant was diminished, the court held, because his role as a marine sergeant in Helmand put him under ‘quite exceptional stressors’ [109] leading to an ‘abnormality of mental functioning’ per section 2 of the amended Homicide Act 1957.</span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">My concern is that, if followed closely, the judgment in <i>Blackman</i> would mean that any infantryman or marine accused of killing a combatant <i>hors de combat</i> in an intense and stressful campaign would be able to run the partial defence of diminished responsibility. As infantry fighting is almost always intense and stressful – the job is still commonly described as ‘closing with and killing the enemy’ – the effect of <i>Blackman</i> might be to make it almost impossible for any infantryman to be convicted of murder, no matter how callous and calculated the killing. If stress is intrinsic to being a soldier on the front line, does <i>Blackman</i> create an intrinsic defence to murder?</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">This in turn engages matters of public policy. It is clearly in the national interest to maintain a cadre of soldiers who are able to kill lawfully in combat for purposes of national defence, who are trained to do so in a professional manner strictly distinct from outright murder, and whose conduct does not diminish the standing of the armed forces or of the nation. If it becomes impossible to identify and punish murder when it is committed by infantrymen and marines, then the professionalism of the armed forces and the national standing would be harmed. As, of course, would justice itself.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">On the other hand, however, as soldiers have rights and duties under law as everyone does, and do not form a special class of citizen with special privileges or restrictions, they must in turn have the right to a lawfully valid defence such as diminished responsibility.</span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">How, then, can these two conflicting aims be reconciled? How can we insist that soldiers kill lawfully and professionally, in intrinsically stressful circumstances that would defeat civilians’ ability to act rationally, while also accepting that in some circumstances soldier’s responsibility to kill lawfully and professionally is diminished by the mental stress that combat can cause?</span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">I argue that a balance can be struck, but it is not to be found in <i>Blackman</i>.</span><br />
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<h4>
<span style="font-family: Georgia, Times New Roman, serif;">Critique of <i>Blackman</i></span></h4>
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">The Court of Appeal found that Blackman did indeed kill the injured militant in cold blood, but that his responsibility for doing so was diminished by an ‘adjustment disorder’, a psychological impairment caused by the stresses of combat in Helmand province. He was not in his right mind when he committed the killing.</span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">In making this finding, the court applied section 2 of the amended Homicide Act 1957. The section says that a defence of diminished responsibility requires the following:</span><br />
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<li><span style="font-family: Georgia, Times New Roman, serif;">an abnormality of mental functioning </span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">which arose from a recognised medical condition,</span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">and substantially impaired the defendant’s ability (a) to understand the nature of his conduct; (b) to form a rational judgment; (c) to exercise self control.</span></li>
</ul>
<span style="font-family: Georgia, Times New Roman, serif;">If it can be proved that the abnormality explained why the defendant killed, then the defendant cannot be guilty of murder but can still be convicted of manslaughter. Importantly, it is for the defence to prove, on the balance of probabilities, that the defendant suffered from the abnormality – if the defence is made out to that standard, then the prosecution must rebut it beyond reasonable doubt in order for a murder charge to stand.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">It is certain that due to Blackman’s condition the charge for murder could not have been proved beyond reasonable doubt, and highly likely that the prosecution could not have rebutted a defence of diminished responsibility to that standard. I am less certain, however, that the defence of diminished responsibility could have been proved on the balance of possibilities in the first place.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">The psychological assessment of Blackman which uncovered the adjustment disorder was carried out some time after the incident, which led the prosecution to object that it could not be proved that his mind was impaired when he killed the militant. The court seems to have rejected this contention on the grounds that Blackman, previously an exemplary soldier, was showing signs of stress before the incident, and was in such difficult and stressful circumstances at the time of the killing that it could be inferred that the adjustment disorder determined his behaviour when he killed the militant. Those circumstances were:</span><br />
<br />
<ul>
<li><span style="font-family: Georgia, Times New Roman, serif;">Returning to UK to scatter ashes of recently deceased father;</span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">B had not received the full amount of pre-deployment training;</span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">had not been trained in Trauma Risk Management</span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">junior officer killed whilst on patrol, thus B lost the support of his junior officer (‘of material significance as a stressor’)</span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">powerful evidence that members of the unit under B's command were always on edge and did not feel safe at night</span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">Padre did not visit B’s post because it was too dangerous (‘evidence of a further stressor’</span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">The base was ‘during summer months under constant external threat and difficult to reach safely. It was isolated. It was without doubt austere.’</span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">J company had been hardest hit by the insurgents, that they were losing ground to the insurgents and by the end of the tour were combat weary.</span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">B's unit was undermanned: the previous multiple had been 25; the multiple under the appellant was 16</span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">Unit was required to patrol between 5 and 10 hours a day over rough ground in heat that was normally over 50 degrees Celsius when carrying a minimum of 100lbs of equipment. The court rejected the submission that this was irrelevant to the psychiatric assessment</span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">All men exhausted and deprived of sleep, but B particularly so as sgt</span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">B regarded himself as responsible for welfare of troops.</span></li>
</ul>
<br />
<span style="font-family: Georgia, Times New Roman, serif;">Viewed in totality, this is a compelling list of stressors, particularly when the subsequent proof of the adjustment disorder is taken into account. There are, however, two difficulties. </span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">First, the wording of the Homicide Act specifically requires a subjective impairment that impairs the defendant’s internal mental functioning and, subsequently, how he acts – is proof of the external circumstances endured Blackman enough to infer, on the balance of probabilities, an internal state of mind? As I discuss below, what if he just powered through? 'Cracked on' as the military say. It seems to me that the court gave undue weight to objective circumstances without determining how they caused an impairment in Blackman’s reasoned and reflective self-control.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Second, the circumstances listed above, while probably unendurable for a civilian like myself, reflect in large part the imperfect realities of being an infantryman or marine fighting in the difficult Helmand campaign. The physical ordeal, the less-than-adequate training and manpower, the stress of imminent danger, the horrors of violent killing – it is overwhelmingly likely that most infantrymen, especially those who fought in Helmand, would be able to cite similar stresses if accused of murdering the enemy. </span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Consider next that, as the court heard from an expert witness, ‘about 20-25% of combat troops deployed to Iraq and Afghanistan at some point suffered from a mental health difficulty’ – and consider too that any accused soldier would probably be legally advised to get himself within that 20-25% bracket. </span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">The corollary, then, of the court’s emphasis on external circumstances as a means of ascertaining Blackman’s internal state of mind is to create a precedent in which almost any infantryman accused of battlefield murder could avail himself of a blanket partial defence.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<h4>
<span style="font-family: Georgia, Times New Roman, serif;">An objective duty of resilience?</span></h4>
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">How can the Homicide Act, and the Court of Appeal’s construction of it, be interpreted so as to allow infantrymen the right to the diminished responsibility defence, without it being a blanket defence?</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">First, a solution that could not work.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">There are obvious policy grounds for demanding that soldiers behave lawfully even when faced by stress that would impair others – that is, largely, one of the main points in training people to be soldiers. As Joseph Heller asserts in <i>Catch-22</i>, seeking to get out of combat is merely proof that you are sane – only an insane person would do otherwise. However, while it is reasonable to acknowledge that soldiers often inhabit a world far removed from the world of civilians of lawyers and judges, in which mind-bending stresses are the norm, it could not be just to demand legally that soldiers meet an objective, raised standard of mental resilience. </span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">First, at a certain level of mental functioning minds control people, people don’t control minds. If an impaired mind caused someone to do something illegal, he or she could not be held culpable for failing to meet some objective standard of resilience, as doing so was beyond his or her control – to hold that person culpable would be to punish him or her for not having a different mind, essentially for not being a different person. The need for soldiers who can kill in stressful situations without becoming insane or criminal is important, but not so important that it could justify such obvious unfairness. Soldiers are people.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Second, it would not be just to hold soldiers to a higher legal standard, such that a soldier would be liable for murder where a civilian would be liable for manslaughter, simply on the grounds that the soldier should have been more resilient. That would be to say that the state could legally punish soldiers for failing to meet super-human standards of resilience. Again, this would be unfair as soldiers are human and cannot be punished for being any less.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">It is difficult to see how soldiers could be forced to accept a higher, less diminishable responsibility of reasoned self-control without the above problems biting. So any solution to the conundrum must be found within the current provisions of the Homicide Act – once it is shown as a matter of fact that the mind of <i>any</i> defendant is impaired, thus causing him to commit homicide, the partial defence of diminished responsibility becomes available.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<h4>
<span style="font-family: Georgia, Times New Roman, serif;">Subjective resilience</span></h4>
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">The Homicide Act 1957 says that a recognised medical condition must </span><br />
<blockquote class="tr_bq">
<span style="font-family: Georgia, Times New Roman, serif;">substantially impair the defendant’s ability (a) to understand the nature of [his] conduct; (b) to form a rational judgment; (c) to exercise self control.</span></blockquote>
<span style="font-family: Georgia, Times New Roman, serif;">In specifying that the ability to exercise self-control etc. is the ability of the <i>defendant</i>, the Act leaves it open to the court to take into account as a matter of fact the subjective capacity for self-control of different defendants, even in the face of mental impairment. It is uncontroversial that infantrymen and marines acquire through their training a heightened ability to form rational judgments and exercise self-control in extremely stressful circumstances (as accepted by the court at [71]). Should Blackman have had to prove, then, that the impairment was such that it diminished a capacity for self-control that was already unusually heightened?</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">There is a fair argument that the court should have paid much more to the following:</span><br />
<br />
<ul>
<li><span style="font-family: Georgia, Times New Roman, serif;">the typical resilience of infantrymen, and the extent to which Blackman showed more or less of such resilience;</span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">the typical stress-related mental impairments faced by infantrymen in combat, and the extent to which Blackman’s impairment exceeded them; and</span></li>
<li><span style="font-family: Georgia, Times New Roman, serif;">the likelihood that the mental impairment suffered by Blackman exceeded his soldierly self-control and resilience in the face of particular stresses, such that it was, on the balance of probabilities, the cause of his killing the injured militant.</span></li>
</ul>
<br />
<span style="font-family: Georgia, Times New Roman, serif;">This is a purely factual question. If such an approach were suggested to a jury in a similar trial, it would have to consider questions about mental causation and might even have to reject expert psychiatric evidence. The authority of <i>Golds</i> says that a jury can be invited to reject expert evidence, though the judge must suggest some rational basis for doing so. It would fall within <i>Golds</i> for a judge to ask a jury if it believed that a particular soldier’s mental resilience would have allowed him to retain reasoned self-control in spite of a proven mental impairment – though I accept that in practice this could be difficult.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">A legal question also arises – this approach might increase the burden on the defendant such that he had to prove not only the mental impairment but also a) his levels of resilience and b) that the impairment defeated his resilience. While <i>Blackstone’s Criminal Practice </i>is fairly clear in submitting that the switched burden in section 2 of the Homicide Act 1957 does not infringe the Article 6 right to a fair trial, it is possible that any addition to that burden might.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<h4>
<span style="font-family: Georgia, Times New Roman, serif;">Conclusion</span></h4>
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">I think the Court of Appeal was wrong to put such emphasis on Blackman’s circumstances – it shifted the attention from his mental state, which the Act requires, and created the possibility of a blanket defence for soldiers who have killed unlawfully in intense combat. I am fairly sure that, if the <i>Blackman </i>decision were followed, the special forces soldiers currently accused of murder in Afghanistan would by default be able to take advantage of the diminished responsibility defence – particularly given reports of the over-deployment and exhaustion of special forces units, and the greater regularity with which they are required to kill at close proximity (in so-called ‘night raids’ for instance).</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">It is consistent with the Act to take account of a defendant’s subjective resilience, and doing so might be a way of keeping the DR defence open to soldiers, while still defending the policy that trained soldiers should be expected to tolerate heightened (but not infinite) stress, and kill professionally but not murderously.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">The question is part of a wider, very difficult problem of litigating what happens on the battlefield. It is undesirable to say that soldiers should form a separate class of people with separate legal duties, as it would then be consistent also to say that they should have special rights and privileges beyond those enjoyed by other citizens. Yet it is also absurd to disregard the fact that fighting in war is far removed from the realities most citizens face. It is likely this will remain a conundrum.</span>Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-83531371195194818012017-07-03T17:27:00.002+01:002017-07-06T01:45:47.487+01:00Afghan war crime allegations 1: Accountability<div>
<span style="font-family: "georgia" , "times new roman" , serif;">I recently read an extraordinary <a href="https://www.thetimes.co.uk/past-six-days/2017-07-02/news/rogue-sas-unit-accused-of-executing-civilians-in-afghanistan-f2bqlc897" target="_blank">investigation by the Sunday Times Insight Team</a> alleging that a UK special forces unit working in Afghanistan turned bad.</span></div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span></div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;">The allegations are:</span></div>
<div>
<ul>
<li><span style="font-family: "georgia" , "times new roman" , serif;">The unit (presumably a squadron within the SAS) killed Taliban suspects having hooded and handcuffed them;</span></li>
</ul>
<ul>
<li><span style="font-family: "georgia" , "times new roman" , serif;">Soldiers planted weapons on dead suspects to justify killing people who may have been totally innocent farmers not linked to the Taliban;</span></li>
</ul>
<ul>
<li><span style="font-family: "georgia" , "times new roman" , serif;">The MoD then wound down the Royal Military Police investigation into the killings, perhaps believing that it could be buried amid the widespread scepticism about UK war crimes investigations caused by the Iraq Historic Allegations Team and Phil Shiner.</span></li>
</ul>
</div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;">A couple of points of interest here, one political, the other legal.</span></div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span></div>
<h4>
<span style="font-family: "georgia" , "times new roman" , serif;">The political issue: accountability deficit</span></h4>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span></div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;">First, it’s notable that a regular army officer stationed nearby was concerned that UK special forces were operating freely and without accountability (quoted in the <a href="https://www.thetimes.co.uk/edition/news/sas-under-investigation-over-rogue-unit-deaths-in-afghanistan-2cbbt7ks3" target="_blank">Times</a>, behind the paywall). </span></div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span></div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;">I’ve banged on about this before – this is a manifestation of a systemic problem facing the entire UK armed forces, and especially the army. The UK is caught in a bind: on the one hand it has valuable military assets (well-trained infantry, including the special forces) that any government would want to keep – they buy the UK credibility with the US, and once wound down the institutions that create the talent couldn’t simply be spent back into existence. If it was a matter simply of money, the UK would send its officers to be trained in the Gulf States, not the other way round.</span></div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span></div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;">On the other hand, however, Basra and Helmand showed that the UK doesn’t have the logistical clout or the money to field large armies. It has valuable assets, but the only way to realise their value is to offer them to allies, mainly the US, as boutique assets that can be integrated into allies' larger, more capable command structures. The result is that UK taxpayers spend billions training soldiers only for them to be commanded and deployed by American generals who are not accountable to the Defence Secretary nor, ultimately, to Parliament.</span></div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span></div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;">The UK special forces are an extreme example of this – they are one of the most attractive items in the UK boutique, and as such ministers are happy to oblige American officers by allowing them to be placed directly under US command, usually in so-called joint task forces. Mark Urban, the excellent defence journalist, has written extensively on this.</span></div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span></div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;">The dangers are obvious: </span></div>
<div>
<ol>
<li><span style="font-family: "georgia" , "times new roman" , serif;">Loss of political control over military assets that should be accountable to the taxpayers who fund them, and to nation which stands to have its reputation tarnished if they behave criminally. </span></li>
<li><span style="font-family: "georgia" , "times new roman" , serif;">The possibility that UK soldiers, acting effectively as mercenaries, will become decoupled from the ethical and legal standards of the UK armed forces, and ‘go native’ in their new surroundings. It’s important not to make an unfair insinuation – the British soldiers in question may have gone rotten without any outside help – but it should be noted that their US counterparts have long stood accused of similar heavy-handedness (to be treated with caution, but this well-researched <a href="https://theintercept.com/2017/01/10/the-crimes-of-seal-team-6/" target="_blank">Intercept article</a> is pretty damning).</span></li>
<li><span style="font-family: "georgia" , "times new roman" , serif;">More generally, <i>any</i> aggressive military unit stands to become a liability if it is allowed to feel the usual shackles have come off. It is notable that in the Alexander Blackman case, which I discuss <a href="http://argumentativerags.blogspot.com/2017/07/afghan-war-crimes-allegations-2.html" target="_blank">here</a>, some attributed Blackman's crime of murdering an injured militant to a failed command structure which left his unit to its own devices.</span></li>
</ol>
</div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;">As much as any government should want to avert these dangers, it might be the case that maintaining the UK armed forces in a ‘complementary’ role, thereby risking the dangers, is the only way to get value out of them. The alternative would be to run down assets which are of value to the country and couldn’t be easily rebuilt. No government elected for five years should seek lightly to strip assets developed over centuries.</span></div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span></div>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;">It’s difficult to see a good way out of this bind – and difficult to foresee today’s political class possessing the imaginativeness to find a middle way.</span></div>
Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-55402201994221265112017-06-27T02:33:00.003+01:002017-06-27T02:37:06.310+01:00Expat EU-UK negotiations – update<span style="font-family: "georgia" , "times new roman" , serif;">Some of the matters I touched on in my <a href="http://argumentativerags.blogspot.com/2017/06/on-eu-uk-expat-negotiations.html" target="_blank">previous post</a> are discussed, with much fuller legal reasoning, by Martin Howe QC, Francis Hoar and Gunnar Beck in their excellent paper on '<a href="http://www.lawyersforbritain.org/files/eu-citizens-privileged-caste.pdf" target="_blank">Rights of EU Citizens in the UK </a></span><span style="font-family: "georgia" , "times new roman" , serif;"><a href="http://www.lawyersforbritain.org/files/eu-citizens-privileged-caste.pdf" target="_blank">after Brexit</a></span><span style="font-family: "georgia" , "times new roman" , serif;">'.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">I also noticed the following in a letter to the <i>Times </i>today by the eminent K P E Lasok QC:</span><br />
<blockquote class="tr_bq">
<span style="font-family: "georgia" , "times new roman" , serif;">The normal position under English law is that when a person has acquired rights they retain them should the law change (unless there is express provision otherwise). That reflects well-established legal principle and is recognised not just by the common law but also by civil law systems.</span> </blockquote>
<blockquote class="tr_bq">
<span style="font-family: "georgia" , "times new roman" , serif;">The expectation would therefore be that people who had exercised their EU law rights before Brexit took effect (EU nationals in the UK and UK nationals in other EU countries) would retain their acquired rights after Brexit.</span><span style="font-family: "georgia" , "times new roman" , serif;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif;"></span></blockquote>
<blockquote class="tr_bq">
<span style="font-family: "georgia" , "times new roman" , serif;">That has the merit of being fair and consistent with legal principle. </span></blockquote>
<span style="font-family: "georgia" , "times new roman" , serif;">Unless I'm being thick and missing something obvious, wasn't this exactly what <i>Miller</i> was about? In it, the Supreme Court ruled that rights acquired under EU law could be taken away, but only by express parliamentary say-so. Parliament gave its say-so in the Article 50 vote – the expectation that EU and UK nationals should retain their EU-acquired rights was therefore expressly rebutted when Article 50 was </span><span style="font-family: "georgia" , "times new roman" , serif;">triggered according to the proper constitutional process</span><span style="font-family: "georgia" , "times new roman" , serif;">, and completion of the Article 50 process will extinguish those rights. </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">Retention of rights for those who would otherwise be left high and dry is desirable and will almost certainly happen – but it will be under the new legal order created by the withdrawal agreement, not under the presumed effect of laws rejected by both Parliament and the electorate.</span>Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-30246457416417026612017-06-26T15:12:00.001+01:002017-06-26T21:53:38.152+01:00On EU-UK expat negotiations<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">Here are some quick thoughts on the offer Theresa May has made to EU citizens who want to remain in the UK after Brexit, and the earlier position put forward by the European Commission. Any deal, it is said, will be reciprocal, but my emphasis here is on the UK side of the deal.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<br />
<h4>
<span style="font-family: "georgia" , "times new roman" , serif;">Rights of residency</span></h4>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span></div>
<span style="font-family: "georgia" , "times new roman" , serif;">May’s offer of full rights after five years of residence in the UK seems to meet the demand set out by the European Commission in its <a href="https://ec.europa.eu/commission/publications/position-paper-essential-principles-citizens-rights_en" target="_blank">position paper</a>. This would keep in place the existing right under EU law. Neither May nor the Commission have said anything about voting rights, and one or two people have foreseen possible disagreement here. It would seem sensible that voting rights remain a separate privilege that comes with citizenship – for various reasons, but in this context because there is a possible advantage in encouraging long-term EU residents to become citizens under UK law alone, rather than remain residents under UK and EU law simultaneously (discussed further below).</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<br />
<h4>
<span style="font-family: "georgia" , "times new roman" , serif;">Family rights</span></h4>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span></div>
<span style="font-family: "georgia" , "times new roman" , serif;">More difficult. May is purporting to offer long-term EU citizens full rights and a normal life in the UK, but the offer is hollowed of much of its meaning if, in some instances, those things can only be enjoyed at the expense of splitting up a family. That seems a good argument for agreeing to the Commission’s demand that, after Brexit, expats continue to enjoy the EU law right to share UK residency with their immediate family. Unfortunately, the argument against is also fairly strong – as the EU right to bring over family is more generous than the same right under UK law (a </span><span style="font-family: georgia, "times new roman", serif;">UK citizen</span><span style="font-family: georgia, "times new roman", serif;"> </span><span style="font-family: georgia, "times new roman", serif;">must pass an earning threshold before their </span><span style="font-family: georgia, "times new roman", serif;">non-EU spouse </span><span style="font-family: georgia, "times new roman", serif;">can join them in the UK), agreeing to the Commission’s position would mean a two-tier legal system with EU expats enjoying greater rights than UK citizens. Aside from being obviously invidious, and probably unfair in a way that need not at all be xenophobic (unless it is xenophobic to say that citizens should have greater civil rights than on-citizens), the main problem is that having different laws for different sets of people creates uncertainty, and unless there is proper justification for the difference it makes the law seem arbitrary, and offends our basic sense of equality before the law.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">So I’m not entirely sure how May could meet the Commission’s position in a satisfactory way. The Commission is unlikely to accept an offer to replace EU expats’ family rights with the equivalent UK rights, so that EU spouses would have to meet an earning threshold. The UK is similarly very unlikely to change its own laws to make them equivalent to EU law – it would feel a lot like duress. Could May and Davis, perhaps, offer an extended period within which EU expats could bring family members over under EU law – i.e. a period longer than the five-year residency minimum – and after that the anomaly would end and EU expats would revert to UK family rights?</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">The other issue regarding family rights is how derived rights will work. Section II of the Commission’s position paper envisages ‘current and future family members’ inheriting the right of residence of EU citizens living in the UK at the time of Brexit. Hopefully the text of the agreement will state unambiguously that the rights created by the agreement can only be inherited once – so, e.g., an EU citizen who at the point of Brexit had lived in the UK for five years or more would enjoy residency rights, and also be able to pass them on to her child, but that child would not be able to pass the same rights on to <i>his</i> children. The second generation, i.e. the original EU citizen’s grandchildren, would then have the option of becoming UK citizens. If the agreement is unclearly worded regarding the inheritability of residency rights, there arises the unappealing prospect of a long-term two-tier legal system, and (if the agreement is to be enforced by the European Court of Justice) the possibility of UK elected ministers being indefinitely liable to the ECJ, even long after Brexit.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<br />
<h4>
<span style="font-family: "georgia" , "times new roman" , serif;">Right of return</span></h4>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span></div>
<span style="font-family: "georgia" , "times new roman" , serif;">The wording of the Commission’s position paper implies that the right to permanent residency after five years (as well as the other rights) should apply to ‘EU27 citizens who reside <i>or have resided</i> in the UK at the date of entry into force of the Withdrawal Agreement.’ It is possible that too much shouldn’t be read into this, as the document is a position paper and not a precisely-worded statute – ‘those who have resided’ may be intended to cover the group of people later specified at II(e), i.e. those who have left the UK but should be entitled to return in order to claim an accrued pension. Nevertheless, read literally the wording implies that the Commission wants any EU citizen who has at any point resided in the UK to have the right to return to the UK, even after Brexit, to enjoy ‘grandfathered’ EU rights.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">If this is indeed what the Commission is proposing, then I hope May and Davis will resist it as a disproportionate and unreasonable proposition.</span><br />
<br />
<ol>
<li><span style="font-family: "georgia" , "times new roman" , serif;">The stated political aim of any expats agreement is to prevent disruption to the lives of EU citizens living in the UK, and vice versa. Allowing right of return cannot be a rational means of achieving that aim, because its purpose is not to prevent disruption to lives, but to prevent loss of a life chance (i.e. the opportunity to return at some point in the future). Loss of an opportunity is often unfortunate, but it is not the same as disruption or upheaval – nor is it clear that the UK should take on the extent of liability proposed by the EU merely for the sake of allowing EU citizens who once lived in the UK to keep their options open about a possible return. </span></li>
<li><span style="font-family: "georgia" , "times new roman" , serif;">It would be unreasonable to ask UK ministers to agree to this proposition when they cannot know the extent of the liability they would be agreeing to – how many EU citizens have lived in the UK, and how many of them might return? The Commission seems to propose that an indeterminate number of people would be entitled to an expensive range of services, and would possibly be protected by a foreign court with the power to bind UK ministers – it could not be reasonable to assent to such an unclear and uncertain proposal. </span> </li>
<li><span style="font-family: "georgia" , "times new roman" , serif;">The Commission, as with all proposals in the position paper, proposes a reciprocal arrangement for UK citizens in the EU. However, the relative liabilities are not at all reciprocal – a large and very populous region openly accepting expats from a much smaller and less populous one, is not equivalent to a small region having to freely accept expats from a much larger and more populous one. </span></li>
<li><span style="font-family: "georgia" , "times new roman" , serif;">Even if one accepts, as I do, that loss of the right to return to the UK would be inconvenient for those EU citizens who had left the UK with concrete plans to return, and that this inconvenience should be averted by any withdrawal agreement, the Commission’s proposal of an open-ended right of return is an excessive and disproportionate means of averting this inconvenience, when it could effectively be averted by the much more modest ‘grace period’ already proposed by Theresa May. A grace period of two years following the end of the Article 50 negotiations would give those planning a return just under four years to make their decision – it seems reasonable, though not indisputable, to say that that would be a sufficient period of time to keep the door open. It does, however, remain to be seen whether the proposed grace period would apply in this way. </span></li>
<li><span style="font-family: "georgia" , "times new roman" , serif;">Finally, the Commission and the EU as a whole must accept that a key purpose of the Brexit negotiation is for the UK to leave the EU’s sovereignty-pooling system, and to regain the elements of national sovereignty it had previously ceded as an EU member. The right of return proposal does not seem consistent with that purpose – it accepts that the UK after Brexit will no longer be part of the EU's shared home for EU citizens, but also insists that anyone who has lived here should retain a key to the house. You don’t really get your house back if an indefinite number of former tenants are allowed to keep copies of the front door key. </span></li>
</ol>
<br />
<span style="font-family: "georgia" , "times new roman" , serif;">Again, all of the above section will be irrelevant if the EU is in fact not asking for a right of return for its citizens.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<br />
<h4>
<span style="font-family: "georgia" , "times new roman" , serif;">Jurisdiction</span></h4>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span></div>
<span style="font-family: "georgia" , "times new roman" , serif;">The Commission also proposes that the withdrawal agreement be enforced by the European Court of Justice. This would mean that EU citizens in the UK after Brexit would continue to be protected by the same laws, as applied by the same court, as before – it would promote legal certainty. It would also mean, however, that as a matter of international law UK ministers would be treaty-bound to obey the court of a body that the UK no longer benefitted from as a member.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">There seem to be grounds for saying the Commission position is over-stated, as one would expect in a negotiation, and not a proposal that could be reasonably agreed to.</span><br />
<br />
<ol>
<li><span style="font-family: "georgia" , "times new roman" , serif;">There is no reciprocity if the ECJ enforces the rights of EU citizens in the UK, <i>and</i> of UK citizens in the UK. </span> </li>
<li><span style="font-family: "georgia" , "times new roman" , serif;">Under articles 221 and 224 of the Treaty of Nice, the ECJ must consist of one judge per member state. The Commission proposal is that the UK accept jurisdiction without representation. It is bold to ask the UK to accept continued ECJ jurisdiction when in all other respects it will be a third-party nation with regards the EU; it is outright unreasonable to ask the UK to accept this jurisdiction in a form that is unfair according to the EU’s own criteria. Continued jurisdiction is controversial enough – continued jurisdiction in an unfairer form is unacceptable. </span> </li>
<li><span style="font-family: "georgia" , "times new roman" , serif;">I note, though I haven’t really researched this yet, that the reason EFTA has its own court, instead of coming under the ECJ, is because the ECJ insisted that anything else would be unlawful: it would have been a violation of the treaties to give EU institutions power of oversight against the non-EU member states of EFTA. So how would it be lawful for the ECJ to have jurisdiction over the UK after its withdrawal? I caveat this: first, there could be any number of reasons why the decision on the EFTA court is irrelevant; second, any withdrawal agreement would presumably be itself an amendment of the treaties, and so would create new provisions allowing the ECJ to have power of oversight over the UK even as a non-member state. Fine, it would be strictly lawful, but only at the cost of sacrificing what seems like a valid principle – it seems entirely right that EU institutions should not have jurisdiction over non-EU member states. </span></li>
<li><span style="font-family: "georgia" , "times new roman" , serif;">Finally, the continued jurisdiction of the ECJ would cement in law a two-tier system. It also hints at a principle that says that jurisdiction is not geographical, or based on settled seats of government, but that free-floating citizens carry jurisdiction with them, even to the point of intruding their jurisdiction upon the jurisdiction of the nation states where they live. This feels wrong. Perhaps the EU will argue, as English courts once did about their own jurisdiction, that ECJ jurisdiction should ‘follow the flag’ wherever EU citizens go. But to do so would confirm that the modern EU is as expansionist, and as contemptuous of the sovereignty of foreigners, as the British Empire once was. If it were the case that the citizens in question formed a coherent body of people, united by common cause, then I would be more open to accepting that formed an ‘enclave’ of people to be protected by their own jurisdiction. But they are not. That the Commission thinks the disparate interests of disparate individuals are sufficient to outweigh a nation state’s claims to unitary sovereign jurisdiction gives some flavour of how radically (and, in my opinion, how prematurely) it rejects the sovereignty of nation states.</span></li>
</ol>
<br />
<span style="font-family: "georgia" , "times new roman" , serif;">I conclude by pointing out that the Commission’s insistence on continued ECJ jurisdiction might be fairly easily defeated. First, </span><a href="http://www.consilium.europa.eu/en/press/press-releases/2017/04/29-euco-brexit-guidelines/" style="font-family: Georgia, "Times New Roman", serif;" target="_blank">the position of the EU Council</a><span style="font-family: "georgia" , "times new roman" , serif;">, which determines the general direction of Commission policy and law-making, is notably equivocal on ECJ jurisdiction post-Brexit: it insists that the ECJ rule on disputes still unresolved at the date of Brexit, but says that post-Brexit there should be merely ‘appropriate dispute settlement and enforcement mechanisms’ which ‘bear in mind’ the role of the ECJ. It seems that the Commission perhaps overstated its brief.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">Second, the Commission has previously shown imaginativeness in agreeing enforcement mechanisms for trade deals. The Association Agreement between the EU and Ukraine, for instance, provides for an independent arbitral tribunal for the resolution of disputes between the parties (see ch 14 of this <a href="http://trade.ec.europa.eu/doclib/docs/2016/november/tradoc_155103.pdf" target="_blank">2,135-page monster</a>). It is not idle to hope the EU and UK can agree on a similar middle path – a specially constituted court including both EU and British judges, for instance.</span><br />
<br />Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-28268747385917391842015-10-03T14:23:00.000+01:002016-05-07T02:55:42.212+01:00Should the government repeal the Human Rights Act and replace it with a ‘British Bill of Rights’?<span style="font-family: "georgia" , "times new roman" , serif;"><i>This is an essay I wrote pre-GDL for a scholarship competition at Oxford Brookes University. I didn't win any money, but it was an interesting topic. </i></span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;"><b>Introduction</b>: To answer this question I will consider three key arguments in favour of replacing the Human Rights Act (HRA) with a British Bill of Rights (BBR), and then give what I believe are stronger counter-arguments in favour of keeping it. The overall aim is to present an argument in favour of keeping the HRA that any just and rational attempt to scrap it would have to defeat. I do not restrict the arguments in favour of a BBR to those advanced by former Justice Secretary Grayling, as his proposal is frequently limited to topical controversies and thus does not exhaust the constitutional arguments for a BBR.[1]</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;"><b>First argument</b>: Any rights document should protect against Britain’s ‘elective dictatorship’, in which a Parliamentary majority can legislate against fundamental liberties.[2] Currently, however, ambivalence over the ECtHR’s jurisdiction and the ECHR’s status leads to an unsatisfactory compromise:[3] section 6 obliges courts to hold public bodies accountable to the Convention, but sections 4 and 19 allow the government to disregard incompatibilities between UK legislation and Convention rights. A BBR, policed by the UK Supreme Court, would end this stalemate by conferring the legitimate power to strike down legislation that threatens fundamental rights, thus protecting rule of law.[4] </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<b style="font-family: Georgia, 'Times New Roman', serif;">Counter-argument 1</b><span style="font-family: "georgia" , "times new roman" , serif;">: It is for Parliament to hold the government to account. If it proves ineffective, then this problem must be solved by Parliamentary reform, not by transforming unelected judges into political actors. Doing so would threaten the democratic principle of Parliamentary supremacy.[5] That it would enable the overreach of </span><i style="font-family: Georgia, 'Times New Roman', serif;">British</i><span style="font-family: "georgia" , "times new roman" , serif;">, rather than European, judges is hardly tempting: encroachment on our democratic sovereignty is undesirable whoever the unelected perpetrator. Chief Justice Roberts of the United States Supreme Court, in his dissenting opinion regarding gay marriage, argues powerfully that judicial overreach is a poor way for any society face up to its moral imperatives:</span><br />
<blockquote class="tr_bq">
<span style="font-family: "georgia" , "times new roman" , serif;">Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.[6] </span></blockquote>
<span style="font-family: "georgia" , "times new roman" , serif;">Had we always given up constitutional principles so easily, the UK would have ceased being a democracy under rule of law decades ago, or never arrived there in the first place. </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">Even a non- or soft-entrenched BBR that granted judges no ‘strike-down’ powers would arguably jeopardise Parliamentary supremacy. The introduction of the HRA was partly motivated by an appetite to increase judicial power, and the increased domestic legitimacy of a BBR would surely whet it further.[7] Nor should we assume that constitutional instruments preserve forever the intentions of their framers: the argument that a BBR could be enacted to prevent the judicial activism allegedly enabled by the HRA is unconvincing: given the same or enhanced powers, what would prevent UK judges developing the same activist tendencies as ECtHR judges are alleged to show? It is arbitrary to hold that activism is simply a European disease, preventable by the quarantine afforded by a BBR. If British judges were able to over-extend the provisions of the HRA, there is no reason why the same wouldn’t happen with a BBR.[8] </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">Moreover, it is wrong to think that sections 4 and 19 allow Convention rights to be contravened with impunity. As Hickman points out, any government opting to ignore an incompatibility effectively declares openly that they are choosing to fall foul of an internationally respected code of human rights, originally drafted largely by British lawyers, and must accept the reputational damage and loss of moral stature that will ensue.[9] Similarly, any minister proposing under section 19 legislation not compatible with the Convention will have to rise to the challenge of convincing the House that the proposed legislation is justifiably incompatible. In the words of Lord Hoffmann:</span><br />
<blockquote class="tr_bq">
<span style="font-family: "georgia" , "times new roman" , serif;">The constraints on Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.[10] </span></blockquote>
<span style="font-family: "georgia" , "times new roman" , serif;">Rather than an ‘ethical bottom line’, as Jack Straw called it, the HRA is perhaps better regarded as a raised bar.[11] </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">Finally and briefly, there remains the question of entrenchment.[12] If statutory rights, in the form of the HRA or a BBR, are to form an abiding normative framework for interpreting subsequent legislation, thereby creating a culture of human rights, they must be more firmly cemented in the constitution than normal primary legislation. The BBR as proposed by former Justice Secretary Grayling has no such protection, thereby leaving fundamental rights at the mercy of short-term, party-political advantage-seeking (which some cynics say underlie Grayling’s own proposals in the first place). While not entrenched, the HRA’s ambiguous status as part-international treaty obligation means that extrication would not be as easy as the government perhaps thinks, thereby giving the HRA some enhanced staying power.[13] </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;"><b>Second argument</b>: It is shameful that, unlike her American counterpart, a UK citizen cannot quote, in fact probably doesn’t even know, the rights that define her as a free citizen and human being worthy of dignity. Our liberties would be better protected if awareness of them went beyond the legal profession: the law is for the people, not just lawyers. Most people feel they have no ‘ownership’ of Convention rights – a BBR would put them back in their hands where they belong.[14]</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;"><b>Counter-argument 2a</b>: Popular ‘ownership’ of fundamental rights is unquestionably a good thing. We have to ensure, however, that citizens own not merely the verbatim content of statutes but the arguments and values that underpin them. Once this is understood, I argue, the case for a BBR becomes considerably weaker – in fact, it becomes a recipe for legalism.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">The rights of the Convention give legal protection not just to due process of the law, but also to a range of liberties without which, the framers rightly reasoned, no society could be decent, free, or fair. But this protection is an insurance policy that only backs up the values our society has already arrived at as a result of other, usually non-legalistic means. Just as an insurance policy is not sufficient (or indeed necessary) for my obtaining the computer on which I type this, so constitutional rights constitute a necessary <i>but not sufficient </i>condition for the enjoyment of the liberties guaranteed by the Convention. Rights, I argue, protect but do not create our values. Overestimating what rights can do is dangerous: the values upon which human rights are founded can wither due to the fallacy that the mere power of statute upholds them. So:</span><br />
<ul>
<li><span style="font-family: "georgia" , "times new roman" , serif;">the First Amendment could not compel US journalists to scrutinise the government in the aftermath of 9/11 and during the run-up to the 2003 Iraq War, nor can it prevent a culture of self-censorship. The UK, on the other hand, developed an imperfect but aggressively free press in the absence of statutory protection.</span></li>
</ul>
<ul>
<li><span style="font-family: "georgia" , "times new roman" , serif;">Life is sacrosanct because of something other than the law’s say-so – a society that thought otherwise would be in trouble. </span></li>
</ul>
<ul>
<li><span style="font-family: "georgia" , "times new roman" , serif;">Marriage will always have more meaning and legitimacy as a custom than as a right protected by Article 12 of the Convention: the protection is vital, but it is subsequent to a value anchored in culture and ethical norms.</span></li>
</ul>
<br />
<span style="font-family: "georgia" , "times new roman" , serif;">Laws, especially constitutional ones, have their reasons – in fact they are valid only inasmuch as citizens can see for themselves the reasons that make up their ingredients (in this laws are very much unlike sausages). A BBR’s emphasis on baldly stated statutory rights would risk presenting the rule of law to the public as unreasoned and arbitrary – this could only undermine respect for the rule of law: the exasperation many Americans feel regarding the Second Amendment is an example of an entrenched right that has brought the law into disrepute by outliving its justification. Furthermore, law without reason is corrosive to basic dignity: my dignity as a human entitles me to understand why things are happening to me, especially bad things like loss of liberty or property. Fear without reason is primal and animalistic, when I am a rational being: I must therefore have the opportunity to rationalise and accept my plight. This will require more than ‘because the word of the law says so’.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">So we can say that some of the most crucial articles of the EHRC are really the complement to much larger diffuse moral and social and cultural discourses. In the words of Lord Bingham on human rights:</span><br />
<blockquote class="tr_bq">
<span style="font-family: "georgia" , "times new roman" , serif;">No other field of law, perhaps, rests so directly on a moral foundation, the belief that every human being, simply by virtue of his or her existence, is entitled to certain very basic, and in some instances unqualified, rights and freedoms.[15]</span></blockquote>
<b><span style="font-family: "georgia" , "times new roman" , serif;">Counter-argument 2b: The danger of legalism</span></b><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">Blind obedience to the law because it is the law is often called legalism. I argue now that legalism is a predictable corollary of grounding fundamental liberties in a central legal document. </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">A British Bill of Rights at the centre of UK public life would almost certainly result in the widespread false belief that law doesn’t merely protect our liberties, but in fact creates them in the first place. This is because, I submit, popular understanding of widely promulgated BBR rights would fall prey to a semantic slippage, from ‘the law <i>guarantees</i>’ to ‘the law <i>grants</i> these rights’. This would be repugnant: that the law protects my right to live does not mean that I am alive <i>because</i> the law deigns to grant it; that satirists can mock Parliamentarians is not <i>because </i>Parliamentarians allow them permission under Article 10 of the Convention. My life and freedom of expression are not in the gift of the law and so the law is in no position to grant them. </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">I suggest that this slippage, from ‘guarantee’ to ‘grant’, arises from a struggle with a paradox: rights documents are the most powerful statements of the law, yet the most important thing they do is declare what the state, and to some extent the law, <i>cannot </i>do: they set down those fundamental values that pre-exist and transcend the law, which the law subsequently undertakes to protect and defer to. This means that the law is most powerful, most visible, and most awe-inspiring (‘We the people…’), when it is most deferential; and because being a citizen in a legal system is only one small part of being human, law’s greatest and proudest duty is to promulgate and defend its own self-limitation in this regard, to acknowledge the boundaries of its domain. Rights documents, then, are, paradoxically, powerful statements of self-restraint.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">As we are generally not keen on paradoxes, we get round this one by saying that, actually, rights documents indeed <i>are </i>powerful and <i>not </i>deferential, and therefore there is no contradiction: thus we start to think the grandiloquence and finality of rights documents bespeak more than a power to grant remedy for transgression, and in fact announce a causal power, constitute the wellspring of our rights, the tangible, anchored foundation stone. </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">And indeed, the wording of a bill of rights is so compelling in its simplicity and clarity, and so much neater than the process of ethical reasoning that produces it, what society wouldn’t prefer the certainty of the former to the vagueness of the latter?</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">From here, then, it becomes all too easy to imagine that our values come from our laws not the other way round – that it is overwhelmingly the crystallized, lapidary authority of statute that vouchsafes our liberties, rather than the custom of actually practising and living them. There is great danger here: the right to enjoy is not the same as the means to enjoy, and protecting is not giving. If we confound cause and effect such that we know longer know what the true foundations of our freedom are, we will not be able to keep them standing and in good repair.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">A BBR, then, could lead to a damaging culture of legalism by putting at the centre of British public life a totemic and seemingly fixed body of fundamental rights that, by its undue prominence, would undermine the fluctuating, living law that for centuries did a good job of protecting basic liberties in England.[16] </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">There is a risk of impasse here. We know, historically, that the common law was an insufficient means of scrutinising the legality of an ever-growing state, and that the need for something like the HRA or a BBR has been proven: the negative liberties of the common law did not constitute a strong enough protection of rights, whereas positive rights can.[17] If what I have argued above holds, however, any bill of rights must also:</span><br />
<ol>
<li><span style="font-family: "georgia" , "times new roman" , serif;">preserve Parliamentary sovereignty and the separation of powers;</span></li>
<li><span style="font-family: "georgia" , "times new roman" , serif;">be a stable presence on the statute book, isolated from short-term political pressures;</span></li>
<li><span style="font-family: "georgia" , "times new roman" , serif;">resist legalism and constitutional fundamentalism;</span></li>
<li><span style="font-family: "georgia" , "times new roman" , serif;">remain symbiotically connected to the moral and cultural discourses that give life to the law.</span></li>
</ol>
<br />
<span style="font-family: "georgia" , "times new roman" , serif;">The best way to satisfy all of these conditions, I argue, is to preserve the HRA while emphasising it as the backstop to, and culmination of, the living liberties of the common law. Thus the problem of the HRA’s foreignness and marginalisation, is in fact its virtue – it prevents us from mistaking the HRA as the central wellspring of our rights, allowing instead emphasis on the case-by-case, experience-based </span><i style="font-family: Georgia, 'Times New Roman', serif;">reasoning </i><span style="font-family: "georgia" , "times new roman" , serif;">of the common law, while still remaining as an ultimate guarantee of protection of our rights.[18] In the words of Edward Coke: ‘Reason is the life of the law, nay the common law itself is nothing else but reason.’[19] </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;">It is a fair bet that citizens perceive more of the justness and moral power of the law in the judicial reasoning of passing sentence and making rulings, than in the text of constitutional statute. This perception could be strengthened by bringing greater public attention to the availability of judgments online and possibly by replicating the Scottish experiment of televising sentencing.[20] </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">The value of the common law, and the dangers of a legal system that places all power in statute, were powerfully demonstrated by V. D. Zorkin, President of the Constitutional Court of the Russian Federation:</span><br />
<blockquote class="tr_bq">
<span style="font-family: "georgia" , "times new roman" , serif;">In Nazi Germany, the law was an expression of the will of the German nation, and the will of the German nation was incorporated in the Führer. Hence the law existed only as a body of statutory laws. Both systems [Nazism and Stalinist communism] were killing millions of people, because for both the law was given and contained in the statutes.[21] </span></blockquote>
<span style="font-family: "georgia" , "times new roman" , serif;">While there are benefits to constitutional rights, why run the risks that come with them when the UK’s current set-up means there is no need?[22] </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;"><b>Third argument</b>: no matter how undeniably just the rights of the Convention are, what matters is our consent to be governed under their tutelage. It could be that every judge upon Supreme Court of India, say, were a Dworkinian Hercules, but only our consent to their jurisdiction would make their rulings valid. Similarly, the man sitting in front of me on the bus may well see a perfect way to resolve the argument I am having with my friend – but that would not necessarily make his intervention welcome or legitimate. The majority of the populace do not recognise the European Court of Human Rights (ECtHR) as a valid overseer of British laws and public authorities.[23] A BBR would have a much greater chance of achieving that recognition.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;"><b>Counter-argument 3</b>: A pragmatic solution is called for: the HRA is the best way of accessing a body of fundamental rights which we agree with, which was largely created by British lawyers and the English legal tradition, which does least damage to our democratic insistence on parliamentary sovereignty, and which keeps the common law alive. There is no way we can enjoy all of those things without a little compromise (another fine feature of British constitutional history and life): it is on these grounds that we must try to convince the populace to embrace the HRA. </span><br />
<br />
<h3>
<span style="font-family: "times" , "times new roman" , serif; font-size: small;">Notes</span></h3>
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference">[1]</span></span> ‘Protecting Human Rights in the UK’, <a href="https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf">https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf</a>.</span><br />
<span style="font-family: "times" , "times new roman" , serif;"><br /></span>
<br />
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[2]</span><!--[endif]--></span> See <i>A Commission on a Bill
of Rights</i> (2012) 6.30-1.<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[3]</span><!--[endif]--></span> On the ambiguity as to whether the HRA is a major constitutional
document or simply an act providing remedy for breach of the UK’s international
obligations, see Hickman (2010) 25ff.<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[4]</span><!--[endif]--></span>
On protection of fundamental rights as a basic
principle of the rule of law see Bingham (2010) </span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;">66ff.<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[5]</span><!--[endif]--></span> <i>Commission on Bill of Rights</i>
(2012) notes at 7.9 that a pre-HRA argument against any bill of rights was the
possibility of a politicised judiciary. However, the Commission reported (7.34)
‘fewer’ worries in 2012 that statutory constitutional rights would encroach on
Parliamentary sovereignty. Bingham (2010) 167-9 is especially strong on the
value of Parliamentary supremacy.<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[6]</span><!--[endif]--></span> <i>Obergefell v. Hodges </i>576
U.S. <u> </u> (2015), <a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf</a>.
<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[7]</span><!--[endif]--></span> See <i>Commission on Bill of
Rights</i> (2012)<b> </b>7.5 on the
enhancement of the judiciary as an aim of the HRA; see also 12.20. In
‘Unfinished business’, an individual paper appended to the Commission, Lord
Faulks QC and Jonathan Fisher QC, express a qualified wish to see a UKSC with strike-down
powers. <o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[8]</span><!--[endif]--></span> As, for instance, with Lord Rodgers misinterpretation of HRA sect.
2 as making ECtHR jurisprudence binding on UK courts. See Nicholas Phillips
‘Closed Material’, <i>London Review of Books</i>
17 April 2014, <a href="http://www.lrb.co.uk/v36/n08/nicholas-phillips/closed-material">http://www.lrb.co.uk/v36/n08/nicholas-phillips/closed-material</a>.<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[9]</span><!--[endif]--></span> Hickman (2010) 7-8. Tory Attorney General Dominic Grieve QC is
unambiguous: ‘For all its challenges the Convention has proved and is proving
to be an effective tool-perhaps the single and most cost-effective one
currently available for promoting human rights on our planet;’ from his 2014
speech ‘Why Human Rights Should Matter to Conservatives’, delivered at the UCL
Constitution Unit (available at <a href="http://www.dominicgrieve.org.uk/news/why-human-rights-should-matter-conservatives">http://www.dominicgrieve.org.uk/news/why-human-rights-should-matter-conservatives</a>).<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[10]</span><!--[endif]--></span> <i>R v Secretary of State for
the Home Department; Ex Parte Simms</i> [2000] 2 AC 115 at 130.<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[11]</span><!--[endif]--></span> Hickman (2010) 2, 7-8, & 24. <o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[12]</span><!--[endif]--></span> Discussed by Elliott and Quinn (2014) 304-5, 316-17.<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[13]</span><!--[endif]--></span> More detailed discussion of this ambiguity can be found at Hickman
(2010) 25ff. This is to say nothing of the difficulties regarding the devolved
legislatures of the UK: see the speech of Dominic Grieve (cited above n. 9) and
chapter 9 of <i>Commission on Bill of Rights</i>
(2012).<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[14]</span><!--[endif]--></span> On lack of ‘ownership’ see <i>A
UK Bill of Rights?</i> 7.27.b, 7.37; Hickman (2010) 10. Former Lord Chancellor
Falconer’s bid to make human rights ‘as British as a pint of beer’ was a
valiant attempt to foster a sense of ownership (see <a href="http://news.bbc.co.uk/1/hi/uk_politics/6097634.stm">http://news.bbc.co.uk/1/hi/uk_politics/6097634.stm</a><span class="MsoHyperlink">).</span><o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[15]</span><!--[endif]--></span> Bingham (2010) 116.<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[16]</span><!--[endif]--></span> See, for instance, the argument made by the law lords that the
protection of free speech afforded by Art. 10 is no different from that
afforded by the common law – <i>Derbyshire
County Council v Times Newspapers Ltd</i> [1993] 2 WLR 449.<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[17]</span><!--[endif]--></span> See Hickman (2010) 13ff. on the development of public law in the
UK by Lords Diplock, Scarman, and others. See also Commission<b> </b>6.18-22; Bingham (2010) 72, 76.<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[18]</span><!--[endif]--></span> See Hickman (2010) 49. This also gets round the problem of UK
citizens resenting being lectured on liberty by Europe. Oliver Sells QC quoted
by Commission … 7.38: ‘this country had enjoyed such rights for many hundreds
of years and the idea that a bountiful European Court was conferring them now
on the UK citizens [<i>sic</i>] was never
likely to be a popular one.’<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[19]</span><!--[endif]--></span> <i>The First Part of the
Institutes of the Laws of England</i> (1628)
2.6.138. Note however that constitutional rights can tend to damage common law
liberties. The original framers of the US Constitution worried that
constitutional rights would displace common law liberties. The opinion of Lord
Rodger (in <i>Watkins</i> (n 171) 64) is
that there is no longer any need to develop the common law of tort to give
redress to those wronged by public bodies, as the Convention can now do it. If
we adopt the ‘living’ Convention, with its own developing jurisprudence, will
this conversely make the common law a bit <i>less</i>
living?<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[20]</span><!--[endif]--></span> See <a href="https://www.judiciary.gov.uk/judgments/">https://www.judiciary.gov.uk/judgments/</a>
and <a href="http://www.scotland-judiciary.org.uk/24/944/Review-into-cameras-in-court">http://www.scotland-judiciary.org.uk/24/944/Review-into-cameras-in-court</a>.
The argument that a BBR is necessary to allow greater education of what our
rights are, as discussed in chapter 10 of the Commission, is surely a nonsense
– nothing prevents the government from educating the population about the HRA
and the common law and the relation between the two.<o:p></o:p></span></div>
<div class="MsoNormal">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoNormal">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[21]</span><!--[endif]--></span> Quoted
by Bingham (2010) 67.<b><o:p></o:p></b></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[22]</span><!--[endif]--></span> This inevitably over-simplifies the relationship between the HRA
and the common law, particularly whether the two complement or displace one
another. See Hickman (2010) 49-55.<b><o:p></o:p></b></span></div>
<div class="MsoFootnoteText">
<span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times" , "times new roman" , serif;"><br /></span></span></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference">[23]</span><!--[endif]--></span> <a href="https://yougov.co.uk/news/2014/10/08/support-tory-human-rights-plans-falls-along-party-/">https://yougov.co.uk/news/2014/10/08/support-tory-human-rights-plans-falls-along-party-/</a>.
This 2014 YouGov poll suggests that citizens understand perfectly well that
agreeing with Convention laws on moral grounds is different from assenting to them
on political and jurisdictional grounds.<o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><br /></span></div>
<div class="MsoFootnoteText">
<span style="font-family: "times" , "times new roman" , serif;"><br /></span></div>
<h3>
<span style="font-family: "times" , "times new roman" , serif; font-size: small;">Bibliography</span></h3>
<span style="font-family: "times" , "times new roman" , serif;"><br /></span>
<span style="font-family: "times" , "times new roman" , serif;">A Commission on a Bill of Rights, ‘A UK Bill of Rights? The Choice Before Us’, December 18 2012, available at https://www.justice.gov.uk/downloads/about/cbr/uk-bill-rights-vol-1.pdf. </span><br />
<span style="font-family: "times" , "times new roman" , serif;"><br /></span>
<span style="font-family: "times" , "times new roman" , serif;">Bingham, T. (2010) The Rule of Law. Harmondsworth.</span><br />
<span style="font-family: "times" , "times new roman" , serif;"><br /></span>
<span style="font-family: "times" , "times new roman" , serif;">Elliott, C. & Quinn, F. (2014) English Legal System, 15th Ed. Harlow.</span><br />
<span style="font-family: "times" , "times new roman" , serif;"><br /></span>
<span style="font-family: "times" , "times new roman" , serif;">T. Hickman (2010) Public Law after the Human Rights Act. Oxford.</span>Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com1tag:blogger.com,1999:blog-7082173774815417367.post-45434116746512478042015-08-19T00:24:00.001+01:002015-08-19T22:09:07.223+01:00Decline of the left, part 6: Afterword<div dir="ltr">
I hate to say I told you so, but I told you so. </div>
Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-14723295544464950772015-06-23T00:56:00.001+01:002015-06-23T16:53:50.346+01:00Decline of the left, part 5: Guilt by resemblance<span style="font-family: Georgia, Times New Roman, serif;">This is the final post in this series of arguments against the modern left. There's more to say, but then there always is, and there will be time for it.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">My <a href="http://argumentativerags.blogspot.com/2015/06/decline-of-left-part-4-ferguson.html" target="_blank">previous post</a> concerned the town of </span><span style="font-family: Georgia, 'Times New Roman', serif;">Ferguson, the scene of the death of </span><a href="https://en.wikipedia.org/wiki/Shooting_of_Michael_Brown" style="font-family: Georgia, 'Times New Roman', serif;" target="_blank">Michael Brown</a><span style="font-family: Georgia, 'Times New Roman', serif;">. It </span><span style="font-family: Georgia, 'Times New Roman', serif;">argued that the commentators and supporters of the left failed to do what true friends to the people of Ferguson </span><span style="font-family: Georgia, 'Times New Roman', serif;">would have done, and counselled against violent rioting – the cause of this failure was an inability to distinguish between clear-headed but sympathetic criticism of African-Americans on the one hand, and the unprincipled criticisms made by racists on the other. Their headlong flight away from the mere possibility of this resemblance, even though it was only a superficial one, drove them towards absurd and self-defeating arguments.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">In this final post, I'm going to look in more detail at this phenomenon, which I call <i>guilt by resemblance</i>.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">The fear of guilt by resemblance is a crucial policing tool of the modern left. </span><span style="font-family: Georgia, 'Times New Roman', serif;">See, for instance, those gimmicky online quizzes where players have to guess who said something: </span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<br />
<blockquote class="tr_bq">
<i><span style="font-family: Georgia, Times New Roman, serif;"><a href="http://i100.independent.co.uk/article/who-said-it-david-starkey-or-katie-hopkins--lkDIBGiyjx" target="_blank">David Starkey or Enoch Powell</a>? </span></i></blockquote>
<blockquote class="tr_bq">
<i><span style="font-family: Georgia, Times New Roman, serif;"><a href="http://jezebel.com/5866602/can-you-tell-the-difference-between-a-mens-magazine-and-a-rapist" target="_blank">A men’s magazine or a rapist</a>? </span></i></blockquote>
<blockquote class="tr_bq">
<span style="font-family: Georgia, Times New Roman, serif;"><a href="http://www.theguardian.com/politics/shortcuts/quiz/2014/jan/06/nigel-farage-enoch-powell-quotation-quiz" target="_blank"><i>Nigel Farage or Enoch Powell</i></a><i>?</i> </span></blockquote>
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">The second of these, incredibly, is from a piece of <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.2044-8295.2011.02086.x/epdf" target="_blank">seemingly respectable psychological research</a>.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">The point of the quiz, it seems to me, is to show that the moral equivalence between the two people quoted is borne out by the indistinguishability of their words. From the fact that we cannot distinguish their statements, so the quiz setter implies, it follows that they are alike in some other, non-trivial way – usually their supposed moral or ideological equivalence. Granted, perhaps all that is being pointed out are the syntactic peculiarities that mark the speech of both Nigel Farage and Enoch Powell – but you'd surely agree that this is a doubtful explanation.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">You can probably guess my issue with this: if I, or anyone, can be denounced on the grounds that I merely <i>sound</i> like a sexist or racist or homophobe – and it was fear of exactly this denunciation that tipped supporters of the Ferguson rioters over the edge into unreason – then there is no hope for me, because even if am totally innocent of any misdeed, I am still condemned by my uttering exactly the same words as used by truly terrible people. Thousands, perhaps millions of times during my life I have revealed chilling commonalities between myself and Peter Sutcliffe, Cecil Rhodes, Bernard Manning, and even Robin Thicke. When I asked waiters for the bill, when I repeated my credit card number to the call centre operator, asked for a single to town – time and again I have used the same words as the worst of humanity.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Admittedly I'm driving the point home to the point of absurdity, when maybe I shouldn't – guilt by resemblance is a serious matter. It is the basis for making monstrous accusations, and is especially dear to those writing on ‘rape culture’. It is clear, surely, that the debased form of entailment that tars the wearer of spectacles as the sort who might try to <a href="https://en.wikipedia.org/wiki/Khmer_Rouge_rule_of_Cambodia" target="_blank">thwart the revolution</a>, is exactly the same debased entailment that tars the fan of a <a href="https://en.wikipedia.org/wiki/Blurred_Lines" target="_blank">risqué pop song</a> as an apologist for, and possible perpetrator of, rape.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">The modern leftist, that is, has foolishly borrowed the depraved logic of the totalitarian in order to denounce those she anathematizes ideologically.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Consider that, for the anti-rape culture campaigner, certain statements are a slippery slope towards having incriminating words, intentions, and thoughts </span><span style="font-family: Georgia, 'Times New Roman', serif;">put into our mouths</span><span style="font-family: Georgia, Times New Roman, serif;">. This means that we are not entirely free to say what we mean – other people, our inquisitors, determine what we mean by a process of imputation. This is obviously dangerous – we might refrain from holding an innocuous, maybe even a useful opinion, because lying blackmailers will insist that that belief forces other, entailed beliefs on us. But who says my individual beliefs are part of a package deal? At what point are they coopted as part of that package deal without consulting my own thoughts and wishes? Why should I be threatened with being bundled down slippery slopes, towards conclusions that are not mine? And what happened to my dignity as a free-thinking individual?</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">This isn’t just wrong. It is shabby. No, it’s worse – it is a howling, blood-boiling disgrace.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">It's extraordinary that it should need explicit statement at all, but (as I <a href="http://argumentativerags.blogspot.com/2015/04/the-decline-of-modern-left-part-1.html" target="_blank">have said already</a>) we cannot afford close-mindedness. We cannot usher people towards foregone conclusions that they were never actually heading towards – we need to hear them out first, because we do not know what the thoughts of others are, and always stand to learn something from finding them out. </span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">It is not a necessary inference that two identical statements imply a parallel identity of political outlook between the two speakers of the statements. This merely equates imputation and innuendo with intention.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Consider: what would the modern leftist do with a statement that is made alike by the bigot and by the virtuous leftist – ‘group x are on the bottom rung of our society’, say. The bigot would tend to imply in saying this, or would tend to go on to say, ‘because of who and what they are’, while the leftist would imply, or would go on to say, ‘because of how our society is’. On the grounds that co-occurrence entails moral equivalence, neither would be able to make their statement about group x without implying the exact opposite – the bigot would be aping the language of those lefties who seek to deny personal responsibility and let bad people off the hook; the leftie would be making an essentialist (racist/sexist) argument, like a true bigot. Neither party could speak their mind without being forced to contradict him or herself.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">And who is surprised by this sort of absurdity? It’s the wholly predictable result of putting words in people’s mouths, of prejudging, of purposefully reducing systematic belief to mere lists of statements.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Again, the modern leftist has foolishly borrowed the depraved logic of the totalitarian in order to denounce those he anathematizes ideologically. The only difference is that the Khmer Rouge had <i>power </i>but feminists, say, argue that they have none – and that the lack of power is what determines and justifies the moral nature of the positions feminists take. The fact that the feminist and Pol Pot make the same argument is, apparently, irrelevant – what matters is that they take place under different power relations, and this superordinate factor ultimately determines and engineers any argument’s worth, truth, moral significance. An identical action is morally different depending on whether or not it is performed by a powerful (or privileged) person.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Isn’t this a taster of how very <i>bad</i>, how ugly this thinking is – that power is everything? Logic, reason, good-and-bad all bow down to power, and cannot be meaningfully considered independently of it. This, too, is of course exactly what the totalitarian thinks. ‘Power’ is certainly a big issue in those areas of identity politics influenced by theorists like Foucault, but I’d say most leftists (even the reasonable ones) believe at heart that the rich and the poor, the powerful and the powerless are essentially different moral entities.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">How on earth have we come to this pass, whereby progressives end up thinking like totalitarians – like bullies, oppressors, and bigots?</span><br />
<br />
<h4>
<span style="font-family: Georgia, Times New Roman, serif;">Problems with premises</span></h4>
<span style="font-family: Georgia, 'Times New Roman', serif;"><br /></span>
<span style="font-family: Georgia, 'Times New Roman', serif;">Consider how badly put together, how badly engineered modern-leftist arguments consistently are – the modern leftist:</span><br />
<br />
<ul>
<li><span style="font-family: Georgia, 'Times New Roman', serif;">consistently blunders into self-defeating arguments;</span></li>
<li><span style="font-family: Georgia, 'Times New Roman', serif;">counters the prejudice of the bigot with what is merely a different flavour of prejudice; </span></li>
<li><span style="font-family: Georgia, 'Times New Roman', serif;">answers the problem of African-American exclusion by proposing merely another type of exclusion;</span></li>
<li><span style="font-family: Georgia, 'Times New Roman', serif;">doubts his own ability to distinguish discriminatory from merely discriminatory-seeming arguments (hence the refusal to criticize rioters); </span></li>
<li><span style="font-family: Georgia, 'Times New Roman', serif;">is nevertheless happy to use this same vagueness as a means of condemning the merely discriminatory-seeming arguments of others.</span></li>
</ul>
<div>
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span></div>
<div>
<span style="font-family: Georgia, 'Times New Roman', serif;">The consistent underlying problem is, I think, a problem with premises. That is, a difficulty or a reticence in identifying and establishing the basic A-to-Z procedure of how one part of an argument causes the next part of the argument to follow. And this problem with premises is, I suspect, </span><span style="font-family: Georgia, 'Times New Roman', serif;">caused by mere reactiveness – </span><span style="font-family: Georgia, 'Times New Roman', serif;">the modern leftist merely <i>reacts </i>to the arguments of the right-wing bigot, and as he is too intellectually timid either to re-engineer the bigot's premises, or to establish entirely new premises, he condemns himself to adopt the bigot's premises. The entirely unsurprising result is a left-wing argument that it self-defeatingly similar to that of a right-wing bigot.</span></div>
<br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Such at least is my explanation for why the modern left so often thinks along such similar lines to even its extreme opponents. Now I need to demonstrate exactly what I mean, and then to suggest a cause for this markedly feeble approach to argument.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Consider the following argument, similar to the one made in my previous post concerning Ferguson: </span><br />
<blockquote class="tr_bq">
<span style="font-family: Georgia, Times New Roman, serif;">British nationalist <i>B </i>celebrates freedom of speech, rule of law, and democratic government purely because these are British values, and <i>B </i>thinks that British is best. </span><span style="font-family: Georgia, Times New Roman, serif;"><br /></span><span style="font-family: Georgia, Times New Roman, serif;"></span></blockquote>
<blockquote class="tr_bq">
<span style="font-family: Georgia, Times New Roman, serif;">I, however, celebrate freedom of speech, </span><span style="font-family: Georgia, 'Times New Roman', serif;">rule of law, and democratic government because I believe they are good things in themselves. I consequently celebrate Britain inasmuch as it embodies these good things.</span></blockquote>
<span style="font-family: Georgia, Times New Roman, serif;">It is entirely plausible that the nationalist and I could express large parts of our beliefs using exactly the same words. However, I hope you would take the time and patience to deduce the different premises from which <i>B </i>and I start out. </span><span style="font-family: Georgia, 'Times New Roman', serif;">In my belief system, Britain’s relation to the values of free speech and the like is entirely contingent; in fact Britain could be entirely irrelevant to the extent that the same arguments could be made even had Britain never existed. To get to this point of disentanglement, however, you would have to refrain from reacting to the immediate semblance of similarity, and come to realize how different founding premises take the arguments on different trajectories.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">But this disentanglement requires patience and reflectiveness and fairness, and the modern leftist generally has no time for these. Especially not when there is the option instead of lashing out with an immediately rewarding, superficially empowering denunciation. </span><span style="font-family: Georgia, Times New Roman, serif;">This is why, I suggest, the commenters on the <i>Guardian</i>’s D-Day piece <a href="http://argumentativerags.blogspot.com/2015/04/the-decline-of-modern-left-part-1.html" target="_blank">behaved with such predictable ugliness</a>: they </span><span style="font-family: Georgia, 'Times New Roman', serif;">thought</span><span style="font-family: Georgia, 'Times New Roman', serif;"> </span><span style="font-family: Georgia, Times New Roman, serif;">couldn’t celebrate the fight against Fascism without also celebrating British jingoism, which they despise</span><span style="font-family: Georgia, 'Times New Roman', serif;">: they showed either unwillingness or complete inability to get at the underlying premises that entirely differentiate the former from the latter.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">As much as a fixation on mere similarities can enable the modern leftist to issue catch-all denunciations of ideological enemies without having to do much actual thinking (‘that’s the kind of thing sexists say, and so I dismiss you’), it leads inevitably to ill-considered arguments that aren't grounded in, or driven coherently by, any founding premise. As a result the modern left:</span><br />
<br />
<ul>
<li><span style="font-family: Georgia, 'Times New Roman', serif;">believes in race, gender, and sexuality as determining factors on the basis of which we should operate double standards; </span></li>
<li><span style="font-family: Georgia, 'Times New Roman', serif;">believes in the validity of identity-based prejudice; </span></li>
<li><span style="font-family: Georgia, 'Times New Roman', serif;">holds that our best defences against an unequal society are </span><a href="http://argumentativerags.blogspot.com/2015/05/decline-of-left-part-3-moral-hazards.html" style="font-family: Georgia, 'Times New Roman', serif;" target="_blank">faith and self-chastisement</a><span style="font-family: Georgia, 'Times New Roman', serif;">, yet all the while ridiculing the religionist.</span></li>
</ul>
<br />
<span style="font-family: Georgia, 'Times New Roman', serif;">If the modern left cannot find its own premises (or, indeed, find its own arse with both hands, as the Australians say) then it is hard to see how it can defend the causes it stands for, and indeed know how they are at root distinct from other, opposing causes. It is precisely because of this vagueness and the insecurity it causes, I suggest, that the modern left instead anchors its place in the intellectual marketplace by means of moral supremacism, tribalism (as argued much earlier), false anathema, ‘virtue signalling’, and that squalid love of denunciation and grievance.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<br />
<h4>
<span style="font-family: Georgia, Times New Roman, serif;">The causes and the effects</span></h4>
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">One reason why this generation of the left wing has, despite its extensive education, lapsed into intellectual spinelessness and, thence, hopeless fallacy is the desperately poor health of the humanities, which we largely rely on to teach moral reasoning at university level. Critical theory has left us wibbling pseudishly instead of making a coherent case for what we believe. Here is <a href="http://americamagazine.org/content/all-things/catholic-pagan-10-questions-camille-paglia" target="_blank">Camille Paglia</a>:</span><br />
<blockquote class="tr_bq">
<span style="font-family: Georgia, Times New Roman, serif;">Post-structuralism has destroyed two generations of graduate students, who were forced to mouth its ugly jargon and empty platitudes for their foolish faculty elders. And the end result is that humanities departments everywhere, having abandoned their proper mission of defending and celebrating art, have become humiliatingly marginalized in both reputation and impact.</span></blockquote>
<span style="font-family: Georgia, 'Times New Roman', serif;">‘Post-structuralism has destroyed two generations of graduate students’ – not at all an overstatement, as I have </span><a href="http://argumentativerags.blogspot.com/2014/06/philosophy-to-rescue-credo-or-something.html" style="font-family: Georgia, 'Times New Roman', serif;" target="_blank">previously argued</a><span style="font-family: Georgia, 'Times New Roman', serif;">. The inky thumbprint of crit theory can be found all over the arguments of the modern left, particularly theorists’ insistence on the politicization of everything: once you adopt the licence to insinuate political ‘assumptions’ to any and all forms of thought, there ceases to be much point in actually asking people what they think and what the premises of their arguments are. Why bother, when assumption does just as well? Imputation is one of the main analytical tools of critical theory.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">And why bother with reasoning, with uncovering premises, with testing arguments, when reason, truth, logic, ‘rational argument’ are nothing but political constructs? With my background and my education I am exactly the sort of person likely to use these constructs, which can be seen as nothing but tools for denying the plurality of truths, with the ultimate socio-economic goal of excluding from discourse the textual subjectivities of those whom I consider ‘other’.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">There you go: a small illustration of how easy it is to come up with this rubbish.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">More particularly, I think the reason the critical theorist, and thence the modern leftist, make such heavy weather of basic reasoning is because of a wide emphasis on materialism, in the form of the cultural materialism of the Marxist and New Historicist, and the post-structuralist’s insistence on the primacy of ‘text’. Thus modern leftists tend to focus on the socially visible surfaces of arguments – the things that sexists and racists say, e.g. – because to delve into the notional premises that motivate and underlie the statements is to veer into the dark side of ‘metaphysics’. The same materialism, I suggest, underlies the modern leftist’s impatience with, perhaps even contempt for, individual conscience and intention: if the thoughts and beliefs that form the premises of my arguments are mere metaphysical constructs, and therefore of no consequence, then no harm is done if the critical theorist dismisses them entirely and imputes a whole new set of ‘assumptions’ in their place which supposedly explain why I think what I do. I find it desperately inhuman.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Hence the sadly inevitable result of some of our most intelligent young people not being taught how to test ideas, how to argue, how to reason through uncertainty: a belief that moral persuasiveness is found in immediate obviousness, in glibness and self-evidentness, rather than in the durability of moral arguments and their ability to withstand testing.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">That is one cause, as I see it – I have further thoughts on other causes, but they can wait. Now the effects. </span><span style="font-family: Georgia, 'Times New Roman', serif;">The danger, I think, is huge. The modern left is estranging itself from the norms and modes of reasoned debate that underpin our democratic and legal processes. Worse still, they are doing so without proving that such an estrangement is justified or rational, that our democratic and legal processes are defunct, and without proposing an alternative. It is mere empty disaffection.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Take the <a href="http://blog.practicalethics.ox.ac.uk/2015/05/if-youre-a-conservative-im-not-your-friend/" target="_blank">blog post</a> by Rebecca Roache, 'If you're a Conservative, I'm not your friend', in which the philosopher Roache (a philosopher! how has it come to this?) lodges her disgust with the Tory election victory by proposing to defriend all Facebook friends who are Tories. Or consider this shameful idiot who runs a garden centre in East Sussex:</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<br />
<div class="separator" style="clear: both; text-align: center;">
<a href="http://www.theguardian.com/politics/2015/may/10/garden-centre-owners-10-tax-for-tory-voters-sign-goes-viral?CMP=share_btn_link" target="_blank"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjQXPZliEEcnTJSS2QQ4Q5LB1AaxJc7cZn0-SZ5ajurjw6SETRDhSYXFyw57D863i-Rc89UlM3hZ9Up7zTFUN2GDgwWYLI7Z49sM36Wgc0wR03menlfgQCDTJZUsbm0I9IJaMVgj_7Uo1sO/s1600/shameful+idiot.jpg" /></a></div>
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">The notion that you can </span><span style="font-family: Georgia, 'Times New Roman', serif;">punish the legitimate winner of a free and fair election is disturbingly at odds with the basic ethics of democracy. </span><span style="font-family: Georgia, 'Times New Roman', serif;">If Manchester United beat some hypothetical football team I support, I don't get to punish the Man Utd supporters, as no wrong has been done to me that I can avenge or punish: I accepted my team's possible defeat as a potential legitimate outcome of the system I participated in. This left-wing lack of sportsmanship is, I accept, not universal, but it is a worrying sign of a petulant, and not particularly principled, rejection of the rules of our game. There's every reason to suspect that any new rules the modern left have in mind are less than pleasant, and considerably worse than our current ones.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">The timidity and insecurity in thinking through and testing the premises on which modern-left beliefs rest lead not only to the obvious – unreflective and bigoted thinking, self-contradictory arguments – but also all the emotive negativity that always attend fear and insecurity: aggressiveness, over-sensitivity, and ill-will. </span><span style="font-family: Georgia, 'Times New Roman', serif;">And despite undoubted good intentions, modern-left arguments are so badly conceived, so self-defeating that they risk doing more harm than good to the interests of those to whom the left appoints itself guardian.</span><br />
<div>
<br /></div>
<span style="font-family: Georgia, Times New Roman, serif;">Indeed, the anti-sexist, anti-racist, anti-homophobia movements will founder if they persist in identifying wrongdoing unfairly and unreflectively, seeking not to help society by identifying wrong, but instead to narcissistically assert the virtuous credentials of the accuser. Most of us know from experience, I think, the unpleasantness of arguing with the modern left: the unfair and often personal accusations, the railroading into condemnation, the shouting down. Time to say ‘enough’. Their arguments are all too often shamefully bad: rebarbative, dismally uneven-handed, contradictory, and unreflective. Theirs is a universal cause, one important to all of us, and they are miserably unequal to it. So let’s do the right thing: let’s smash their arguments to pieces, and build stronger arguments in their place.</span><br />
<div>
<br /></div>
Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-9821641451293861122015-06-01T00:01:00.001+01:002016-05-07T13:08:04.897+01:00Decline of the left, part 4: Ferguson, Baltimore, and race<div class="MsoNormal">
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">Since the previous<a href="http://argumentativerags.blogspot.com/2015/05/decline-of-left-part-3-moral-hazards.html" target="_blank"> post in this series</a> it
has become ever clearer that left-wing commentators are wise to the failings of
the left that I have been describing. This <a href="http://www.theguardian.com/commentisfree/2015/may/27/labour-spain-podemos-winning-streak-inspiring-people" target="_blank">article by Owen Jones</a>, as well as <a href="http://www.theguardian.com/commentisfree/2015/may/29/labour-party-equality" target="_blank">this one</a>,
for instance, seem to grasp the nettle – if politics is about persuading people, then
the left’s assumption that left-wing beliefs are self-evidently morally right,
no argument necessary, is obviously bad, dead-end politics that won't persuade anyone. It is heartening to
see commentators like Jones see the problem for what it is – and I will enjoy a
small feeling of vindication for having reached this conclusion before a
whopping electoral defeat made it throbbingly obvious for all to see.</span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">While it may seem that there is no
need for me to keep on pointing out problems that the modern left are
addressing themselves – which would be problematic as this stuff is all
pre-written and I’ve got to offload it somehow – I’ve still got an axe to grind
with the identity-political left, which is increasingly distinct from the
Labour left (though, again, so do left-wing commentators, <a href="http://www.politics.co.uk/blogs/2015/05/24/the-left-needs-to-address-the-rise-of-identity-politics" target="_blank">as here</a>.
From now on, then, ‘modern left’ will refer quite specifically to the
identity-political left ). </span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<h3 style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;"><span style="font-size: small;">Test case no.3: the Ferguson
disturbances </span></span></h3>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">To recap: previously, I
argued that, despite good intentions,
modern-left arguments concerning discrimination are so badly conceived that
they are self-defeating, and are more likely to harm than serve the interests
of those to whom the left has appointed itself guardian.</span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">I’m interested in why the issue of
race in particular causes the modern left's moral compass to spin so wildly.
Arguments about the corrosive effects of colonialism in the third world, for
instance, despite being well-intentioned, invariably career towards the
colonialist’s own premise that the peoples of Asia and Africa are infantile and
unfit for responsibility, usually because the modern leftist’s attempts to
diminish third-world responsibility inevitably also diminish third-world agency.
This is hopelessly self-defeating.</span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">The same genius for the
self-undermining argument is seen in the debate surrounding cultural
appropriation (white women ‘twerking’ e.g.). When white Brits
appropriate American blues, say, they are at some level affirming its cross-cultural, cross-ethnic value as art – it expresses human
universals of sadness, love, stoicism, etc. that we can all get. But when the anti-appropriationist denounces this appropriation, and says that blues only has its true value in
the ethnic and cultural context in which it originated, then the blues’ universal value is diminished and it is made </span><span style="font-family: Georgia, serif;">narrowly</span><span style="font-family: Georgia, serif;"> parochial, a mere intra-ethnic shorthand.</span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">Given that the anti-appropriationist's stated
intention is to protect the value of black-American culture, this is another
profoundly self-defeating argument – a crystal-clear example of cutting off the
nose to spite the face (even worse, it’s usually someone else’s face). It protects black culture by making it not worth stealing in the first place. Great
art says much more important things about us than our ethnicity. Shakespeare
does, and so does Howlin’ Wolf – that’s why they belong to all of us, not just
to white Britons or black Americans.<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, Times New Roman, serif;"><br></span></div>
<span style="font-family: Georgia, Times New Roman, serif;">Now take the modern left’s
response to the unrest in Ferguson, Missouri provoked by the shooting of
Michael Brown. The <a href="https://en.wikipedia.org/wiki/2015_Baltimore_protests" target="_blank">recent events in Baltimore</a> are also relevant, though I’ll focus only on Ferguson – it’s anyway the
commentariat’s reaction that I’m interested in. First things first: I read the <a href="http://www.theguardian.com/us-news/ng-interactive/2015/mar/04/justice-department-reports-ferguson-michael-brown-full-text" target="_blank">Department of Justice report on the killing</a> in as much detail as I could, and as a result my basic opinion is:</span><br>
<br>
<ul>
<li><span style="font-family: Georgia, 'Times New Roman', serif; text-indent: -18pt;">that
the shooting of Michael Brown was regrettable but justified;</span></li>
<li><span style="font-family: Georgia, 'Times New Roman', serif; text-indent: -18pt;">that
the Ferguson police are corrupt and racist, and that Ferguson’s black community
was therefore justified in its anger;</span></li>
<li><span style="font-family: Georgia, 'Times New Roman', serif; text-indent: -18pt;">but
that nevertheless, that anger did not justify the violent rioting, which was
anyway misplaced (it very likely was not a racist killing in this instance).</span></li>
</ul>
<br>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">What interests me is why modern-left
commentators were so often unable or unwilling to concede basic truths that they
would normally agree to as a matter of course: namely, that anger can be
justified but does not justify, and that the interests of Ferguson’s black
community were not well served by rioting. In fact, modern leftists were
contorted into all sorts of odd and self-defeating postures in their attempt to
avoid at all costs the conclusion that, while understandable, the actions of
the rioters were unwise and wrong.</span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">Ok, consider this. We all agree
that, in addition to the (premature, as it turned out) assumption that Michael
Brown was unjustly killed, there were very valid socio-economic and
criminal-justice reasons for Ferguson residents to be angry. </span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin: 0cm 0cm 0.0001pt; text-align: right;">
<span style="font-family: Georgia, serif;"><i>Granted, yes?</i></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">What is the best way, then, of
making an economy and a criminal-justice system fairer – consensual politics,
or violent coercion? </span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin: 0cm 0cm 0.0001pt; text-align: right;">
<span style="font-family: Georgia, serif;"><i>We’d all go for the former, I
hope. </i></span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">And should a political solution be
imposed on Ferguson’s black community by a white political elite, or would the
solution work better if the community were involved in the process of their own
healing? </span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin: 0cm 0cm 0.0001pt; text-align: right;">
<span style="font-family: Georgia, serif;"><i>Unquestionably the latter. </i></span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">And if America’s political processes
are, or should be, strictly non-violent, then surely Ferguson residents’
violent rioting pushed them away from this desirable goal, rather than pulled
them towards it? Surely it did more harm than good, was a step in the wrong direction?</span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">The rioters’ violence was assuredly
a bad thing, then, and an unwise choice. Understandable, mitigated even, but
unhelpful and harmful to their interests – cementing the dysfunction that did so much to prompt the disturbances in the first place.</span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">If all this holds good, then why did
so many people find it so hard to say that, whatever the legitimate feelings of
the rioters, rioting was a bad idea? Why, indeed, could they not bring themselves to be true friends to the black population of Ferguson, and instead waved them on them as they sped headlong towards more dysfunction, more violence?</span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">People who would say that every
violent death should be followed by an inquests, a trial, due process, not by
immediate violent retaliation – why were they unable to keep hold of this
principle regarding Ferguson? Why did they, extraordinarily, parrot the rumour that Brown had his hands up when he was shot – they surely knew that rumours spread by angry crowds (even justifiably angry crowds) are not reliable, and certainly not reliable grounds for accusing someone of the callous murder of a defenceless victim? (But then, <a href="http://argumentativerags.blogspot.com/2015/04/the-decline-of-left-part-2-timidity.html" target="_blank">as we've seen</a>, disproportionate accusation is a modern-left <i>forte</i>).</span><br>
<span style="font-family: Georgia, serif;"><br></span>
<span style="font-family: Georgia, serif;">Even more culpably, why was the modern left happy
to normalize violence as a form of political expression appropriate for black
Americans, but not one they would adopt themselves? Remember, if the series of
conclusions above is correct (and I think it is) then violent political
expression can only lead black America away from success and equality. What is
it about race that so consistently leads the left into self-defeating arguments?</span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">Perhaps I need to be more
even-handed. There is an argument for saying that we should go easy on the
rioters, even though their actions violate our legal and political norms,
because society failed them in the first place by excluding them from the
benefits of living in America. Seeing as America excluded them from the good
things such as wealth, why should America only decide to include them when it
comes to bad things like legal sanction and punishment? Wouldn’t this be
arbitrary? Wouldn’t America in fact be punishing them twice – impoverishing
them in every way, and then punishing them for reacting in the only way they
could react to their impoverishment?</span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">Provided that two wrongs do indeed
make a right, this is a compelling argument. However, two wrongs do not make a
right, and it is a wretched argument. </span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">If the exclusion of black Americans
is bad, how could we possibly remedy that exclusion by creating, as the left
do, <i>another</i> exclusion in which black Americans are accorded a separate moral
and legal and political status? How could this 'gift' of a double standard, by which black America is cut some slack, be anything but a poisoned chalice?<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">We know, surely, that this is a bad
idea. This whole problem was caused by segregation and double standards, and it
is clear that nothing has changed such that, this time around, it would be a good
idea to have a legal and political system determined by double-standards based on racial difference.
Moreover ethnic minorities would almost certainly end up being the victims of
such a system. </span><o:p></o:p><span style="font-family: Georgia, serif;">Isn’t the modern leftist making race as dangerously determinative as the racist ever did – making Ferguson’s citizens black first and citizens second?</span><br>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
</div>
</div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">If democratic non-violent legal and
political systems are good things, nothing but bad is likely to result from
exempting black Americans from them: we know that failure to equally share America's wealth is a bad thing, and I think we know too that failure to share access to its consensual, non-violent political and legal systems is an equally corrosive denial of a common good. </span><br>
<span style="font-family: Georgia, serif;"><br></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">Here, I think, lies the rub: <i>if</i> our
non-violent legal and political systems are good things. I have no doubt that
they are – or at least, that non-violent laws and politics are much better than
the violent sorts. The modern leftist, however, feels an intense squeamishness
here, because to say that rule of law is better than mob rule, to say that the
black population of Ferguson did something unwise, and should instead be urged to participate in legal and political systems – for the modern leftist, to say these things is
to line up on the wrong side of the ideological barricade, to identify with
hegemony. In fact, to sound like a racist.</span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">When there is such danger of resembling a racist, and thereby being denounced, why take that tightrope walk across uncertainty and
difficulty? Why think carefully when there is the much easier option of
automatic anti-racism, even if it is unreasoned, self-defeating, and ultimately
harmful to victims of racism? If careful thought incurs the danger of
resembling a racist – superficially, wholly falsely – then it is
much safer to be thoughtlessly anti-racist, because the risk of denunciation is
much greater for the modern leftist than the risk of absurdity.</span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">And so we see the intellectual
spinelessness and short-termism of so much modern-left thought: building
society’s long-term anti-racist values on shabby, unreasoned foundations merely
to avoid the immediate risk of denunciation, of being called a name, of losing
face.</span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br></div>
<span style="font-family: Georgia, serif;">Worst of all, at its heart is fear:
fear of denunciation, but also fear of being forcibly misrepresented, of having
thoughts imputed to us and words put in our mouths because of a merely
coincidental resemblance. This is what I call the fear of guilt by resemblance,
and it will be the topic of the <a href="http://argumentativerags.blogspot.co.uk/2015/06/decline-of-left-part-5-guilt-by.html" target="_blank">next and final entry in this series</a>.</span></div>
Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com14tag:blogger.com,1999:blog-7082173774815417367.post-66555762170809328192015-05-27T15:46:00.002+01:002015-05-27T15:46:43.072+01:00ISIS: Why Obama fiddles<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">Yes more depressing news from the Middle East with the ISIS
<a href="http://www.theguardian.com/world/2015/may/18/shia-militias-ramadi-isis-anbar-iraq" target="_blank">conquest of Ramadi</a> in Iraq </span><span style="font-family: Georgia, serif;">and of <a href="http://www.theguardian.com/world/2015/may/24/killed-isis-palmyra-syria-tv-reports-tadmur-islamic-state" target="_blank">Palmyra</a> in Syria</span><span style="font-family: Georgia, serif;">. As Ramadi was falling, the
US administration, with remarkable good timing, released the happy news that
they had just killed a high-up ISIS financier <a href="http://www.bbc.co.uk/news/world-middle-east-32764995" target="_blank">during a night raid</a></span><span style="font-family: Georgia, serif;">.<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">On the face of it this is a pretty naked, and pretty weak, PR bid
– the fall of a major city is hardly made up for by dragging a senior administrator
out of his bed and shooting him while still in his pyjamas. But when you look
beneath the surface, it’s much, much worse than all that.<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">Here, briefly, are four possible reasons for why the Obama
administration is fiddling while the Middle East burns. They get progressively
more worrying.<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<b><span style="font-family: Georgia, serif;">1. Ideological
shift<o:p></o:p></span></b></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">The Obama administration has inherited from its predecessor a
preoccupation with special forces troops as a magic wand. As I <a href="http://argumentativerags.blogspot.com/2014/02/death-2-bin-laden.html" target="_blank">argued previously</a></span><span style="font-family: Georgia, serif;">, the magic was particularly
potent for the Bush administration, which saw such troops as the ideological
vanguard of a new, smaller military (and, ultimately, a new, smaller state).
Obama has surely noticed too that this sort of derring-do plays well with a
public that worships the military, and especially its elite units. Compare the
aftermath of the Bin Laden killing, in which the feat of shooting an unarmed
old man in the face was laughably talked up into a latter-day Iwo Jima.<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<b><span style="font-family: Georgia, serif;">2. Obama is a
vacillator<o:p></o:p></span></b></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">Obama is a chronic vacillator (or unfailingly prudent, to be more
generous), and will only commit to pinprick actions like this, fearing the
consequences of confronting ISIS head-on.<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<b><span style="font-family: Georgia, serif;">3. The
situation is intractable <o:p></o:p></span></b></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">There are simply no good moves to make. A previous administration
largely created the mess in Iraq, but while this makes it America’s duty to put
it right (‘<a href="http://www.theburningplatform.com/2014/06/13/colin-powell-on-iraq-you-break-it-you-own-it/" target="_blank">you break it, you own it</a>’</span><span style="font-family: Georgia, serif;">), Obama still can’t do
anything because yet <i>another</i> toxic Bush
legacy has been to sully full-scale humanitarian intervention for the
foreseeable future. Moreover, there are no good guys to fight alongside in
Syria, and why should fighting in Iraq do any good this time around when it
failed last time? In the absence of any proper solution, then, something morale-boosting
and faintly useful like a daring night raid will have to do – it’s at least a
strike against ISIS in a <a href="http://www.bbc.co.uk/news/world-middle-east-32881854" target="_blank">propaganda war that the bad guys are winning</a>.<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<b><span style="font-family: Georgia, serif;">4. The
situation might be solvable, but the US is incapable<o:p></o:p></span></b></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">By far the worst possibility is that the world’s leading
democratic nation is incapable of confronting a rampant, malevolent power which
threatens to ruin Middle Eastern civilization. Instead the US is limited to
morale-boosting but peripheral actions like the killing of pyjama-wearing ISIS supremo
Abu Sayyaf.<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">According to this terrifying interpretation, the modern US is
structurally unable, or ill-suited, to winning wars.<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">Consider this: special operations like the one that so rudely
awoke Mr Sayyaf were largely pioneered by the British during the Second World
War. ‘Set Europe ablaze!’ Churchill so memorably commanded, but while actions
like the St Nazaire raid continue to <a href="http://www.imdb.com/title/tt0996628/" target="_blank">capture the imagination</a>,
and understandably so, we have largely lost sight of the fact that unconventional
warfare was employed as a workaround, to compensate for the weakness at the
time of Britain’s conventional capabilities. The commando raids on occupied Europe’s
shores were an interim, morale-boosting means of attack until the Allies could
get on with the real business of launching a conventional reinvasion.<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">Is a similar thing happening in the modern day? Has the US
military, for a long time suspicious of unconventional warfare, embraced
it now because of the crippling limitations of its conventional forces?<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">As I understand it, the US military historically scorned unconventional
warfare on the basis that you play to your strengths – when you have more
conventional firepower than any other nation, why faff around with other stuff?
Hence the <a href="http://en.wikipedia.org/wiki/Powell_Doctrine" target="_blank">Powell doctrine</a> of ‘overwhelming force’,
and ‘shock and awe’ – America’s advantage over its enemies is its firepower, so
it stands to reason that conflicts can be won by escalating them until that advantage
proves decisive.</span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">You only need to watch the war-porn footage from Afghanistan
available on YouTube (a guilty pleasure, I admit) to see this. A Taliban gunman
has a fighting chance engaging a NATO infantryman, but has no answer to the massive
airpower that NATO will throw at him in response to his ill-advised pot-shots. Escalation,
then, is a reasonable means of advancing any conflict to the point at which the
enemy can no longer meaningfully retaliate.</span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">However, as the US has found out during three costly and traumatic
failures, there are enormous problems with this – problems which, I argue,
render the US paralysed. First, escalation as a matter of principle inevitably
leads to conflicts becoming big, high-intensity, expensive affairs, in which
chaotic unforeseen consequences are likely and compromise with the enemy
improbable. <o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">Second, a strategy of open-ended escalation only works if it might
at some point prove decisive – the Taliban gunman and the armoured divisions of
Soviet Russia would ultimately have been blown away, but if your enemy is the
Viet Cong, or the Taliban, or Al Qaida in Iraq / ISIS, then they won’t stick
around the battlefield to receive the decisive blow. Instead, as indeed
happened, US forces fruitlessly keep escalating, incurring all the attendant problems
(high intensity, massive expense, chaos), without the reward of decisive victory.<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">True, ultimately the US could have gone completely bonkers and
vapourized the Viet Cong, the Taliban etc. but it doesn’t matter. This entire
way of war is far, far in excess of what the American public, i.e. the military’s
paymasters, will tolerate. The US public dislikes open-ended engagements
overseas, is partly still isolationist, and above all wants to bring their boys
home – and yet the US military is wedded to tactics that will inevitably result
in expensive, bloody, open-ended wars. Even though the Vietnam, Iraq, and
Afghanistan conflicts demonstrate that at some point the President will have to
bow to political pressure and pull the plug on them.<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">There’s no good in saying ‘we should have won, but victory was prevented
by the politicians’, as was said after Vietnam and also after the First World
War (except it was said in German). Armies must fight within their means, and
those means are determined by politics and economics – generals might as well
complain ‘we should have won, but victory was prevented by the lack of money
and soldiers and equipment.’ War is, after all, the pursuit of politics by other
means.</span><o:p></o:p></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">So there it is: the US is unable to carry out a conventional
attack on ISIS because the military is so cut off from the political supply lines
it relies on for funding and legitimacy, any attack would end in abandonment
and failure. The basic American war-waging model is unworkable, and so Obama must settle for fruitless propaganda coups.<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">To be generous, the US military is a blameless victim of its size:
big armies will fight big wars. To be less generous, one wonders if a lack of
creativity and imaginativeness has led to the assumption that a big heavy
military can only fight big heavy wars – what about small smart ones?<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">This is awfully depressing if true. The strong America of the Bush
years was terrible, but it didn’t have to be, whereas a weak America could only
be a much worse thing for the world. The criminal and unforgivable stupidity
of invading Iraq caused this situation, and the US and UK must put it right.
<a href="http://www.bbc.co.uk/news/world-middle-east-32867220" target="_blank">Ash Carter</a> is right of course:
Iraqi troops will not fight hard for a state that was artificially created,
from the top down, by self-interested occupying forces. But it was obvious from
the very start that the post-Saddam state would be artificial and lacking
legitimacy.<o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0cm;">
<br /></div>
<br />
<div style="margin-bottom: .0001pt; margin: 0cm;">
<span style="font-family: Georgia, serif;">Iraq has become something of a Frankenstein's monster – he was
driven to misery and ultimately self-destruction by the tormenting knowledge
that he didn't exist in his own right, but merely as the object of his
creator's will. Nobody can bear living in the knowledge that they are a merely
artificial thing, and the Iraqi people seemingly don't want give their lives to
prolong the existence of an artificial state created for the benefit of foreign
powers. America and Britain created this monster, now they have to do something
about it.</span><o:p></o:p></div>
Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-91650628246530029722015-05-13T00:02:00.000+01:002016-05-07T16:54:12.428+01:00Decline of the left, part 3: Moral hazards<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">In the <a href="http://argumentativerags.blogspot.com/2015/04/the-decline-of-left-part-2-timidity.html" target="_blank">previous post</a> in this series I argued that the modern left has lost its way: creeping insecurity is leading it to rely on false certainties and self-righteous bigotry, neither of which is healthy. So far I’ve been largely asserting my case, which rather confounds my founding premise that a good cause must be supported by a good argument. So in this post I’m going to have to work a bit harder to show that modern-left arguments are indeed badly put together, and in the process propose a better sort of argumentation that might underpin our values.</span><br />
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<h4>
<span style="font-family: "georgia" , "times new roman" , serif;">In which the <i>Author</i> responds to his <i>Criticks</i></span></h4>
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<span style="font-family: "georgia" , "times new roman" , serif;">First, however, a response to some of the feedback I have received so far, and more importantly thanks to all who have given that feedback.</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">It seems fair to say that so far I have not properly identified the phenomenon of the ‘modern left’ that I am talking about. Much of what I describe represents a general incivility in political debate that is found on left and right wings, especially online. Moreover my term ‘modern left’ is misleading as it implies that I am talking about ‘the left of the modern day’, when my target is really a section of the left that has departed from the better traditions of the left and indeed of democratic political discourse (hence ‘modern’ left). I accept I need to do more to delineate this section of the left – pointing at Owen Jones and Laurie Penny won’t really cut it. My preferred term is ‘shrill left’ but it has unpleasant misogynistic overtones.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">Nevertheless, I’m confident it would be quite easy to delineate and identify this section of the left. I’m confident too that people intuitively recognize the constituency of commentators and Facebook-botherers I am talking about, and regard them as forming a coherent, identifiable group. The remaining posts in the series will focus on identity politics, and perhaps I will be able to make a case for identity politics as the identifying peculiarity, or quiddity, of what I call the ‘modern left’. </span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">As an aside, I’d say too that the reaction of many left-wingers to the Labour defeat in GE2015 vindicates much that I have been saying.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">My reasoning for picking on the badness of the left and not the right isn’t as strong as I’d like it to be. One reason is that the modern left moralizes so vociferously that its arguments attract challenge more than those of others; and the extraordinary intolerance of those preaching tolerance is a contradiction worthy of everyone’s attention (contradictions are always interesting and worth thinking about). </span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">Perhaps too the left shouldn’t just be measured against the standards it demands of others, but also against standards that should be intrinsic to left-wing beliefs – the modern left disappoints because, frankly, we expect more of the left wing than we do of the right, expect it to be more upright, more intellectually and morally conscientious in pursuing its lofty, society-changing goals. </span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">However perhaps my expectation of better things from the left is really just the tell-tale remnant of faith in someone who used to be left-wing but is now utterly jaded. In which case, this series of blog posts is really just a grumpy farewell to a political ideology that has disappointed me utterly.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">That sounds about right, frankly. Label me a proud agnostic.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">Some other critiques that people have pointed out, or led me to: using a quasi- (or perhaps pseudo-) philosophical form of reasoning to critique political commentary might be a category error, the wrong tool for the job entirely (as will perhaps become increasingly clear in the remaining posts in the series). I’ve bet the farm on my first premise (‘no good cause can be well served by a bad argument’) being valid, and justified it by saying that we can only find common cause with other people by convincing them through argument – the alternative is to coerce them and that would do unacceptable harm to our individual freedom of conscience. </span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">However maybe this places an unrealistic, fundamentalist emphasis on freedom of conscience – in creating common cause in the real world (through political parties e.g.) we inevitably have to accept certain compromises of individual conscience. For instance, if party solidarity is the way to achieve electoral and parliamentary success, and thereby to implement our values, then implementing our dearest values will probably involve sacrificing some of our other values in the name of achieving party solidarity and common cause. To insist otherwise is to be unworldly and unpragmatic – we’d never get anything done.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">So perhaps I am overly harsh on the hyperbole of the modern left. Solidarity and gestures of solidarity, perhaps tribalism, are important in politics, whereas I privilege rationality above all. I would probably do well to remember that the most important political contribution we make as citizens isn’t an argument, it isn’t even linguistic, it’s simply a crude mark in a box symbolizing that we side with one party not another.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">As much as I identify with the adversarial nature of British politics (and law), it could be argued that I misunderstand it: democratic politics is about representing people and their interests. Once we break that bond and put ideas before people, we soon degenerate into ideological callousness (as so many before us). The testing of political positions cannot be a process of hyper-rational analysis of ideas, as this will lead only to the rule of <a href="https://en.wikipedia.org/wiki/Philosopher_king" target="_blank">philosopher kings</a></span><span style="font-family: "georgia" , "times new roman" , serif;">. Instead, therefore, a political idea should at some level be understood as belonging to or representing a constituency of people and their interests; as there can be no divorced arbiter holding the balance, the idea can only be tested by seeing how it weighs up against other political ideas that represent other constituencies of people and their interests.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">In other words, even sensible, moderate conceptions of the democratic process must inevitably commit us to a certain degree of tribalism. I don't think this scuppers my arguments, but (as will become increasingly clear) it is clear that I need to respond in different ways to moral and political arguments.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">Normal service will resume very shortly, and I’ll go back to hammering away at the Guardianistas. But first – I'm still not sure that the above negates what I am trying to do with this series of blog posts. Comforting as tribal feeling and group solidarity are, we would all resist the charge that our political ideas are unreasonable or arbitrary – a politician would find it near impossible to defend a policy that he or she had to acknowledge as tribally correct but unreasonable. Tribalism is inevitable and probably important, but probably not sufficient, and certainly no substitute for reasoning. Moreover there is no way of arriving at a clear sense of what our beliefs are, or even what our best interests are, without a process of weighing one benefit against another, testing one value against another. Tribalism won’t help us do this, only reasoning (and I will argue below that it is a form of reasoning the modern left is particularly bad at, possibly because of a preference for tribalism instead). </span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">If reasoning must form part of politics, but only a part, maybe I could say that this series serves the purpose of a cordoned-off testing ground, isolated from the other legitimate aspects of politics, to allow the rigorous testing-to-destruction of the ideas of the modern left. See what you think.</span><br />
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<h4>
<span style="font-family: "georgia" , "times new roman" , serif;">Test case no. 2: the presumption of discrimination</span></h4>
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<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">When inequality exists in our society, should we assume as a matter of course that it exists because of discrimination and bias? This seems to be the position of many, and not just those of the modern left. </span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">I’m talking about, for instance, ‘<a href="http://www.theguardian.com/education/2013/feb/26/oxford-university-ethnic-minority-applicants" target="_blank">institutional bias</a>’ against ethnic minorities at University of Oxford; the extraordinary brouhaha over not enough black actors getting Oscars in 2015, the so-called '<a href="http://www.theguardian.com/culture/2015/feb/19/the-great-awards-whitewash-diversity-loses-out-on-the-red-carpets" target="_blank">whitewash</a>'; <a href="http://www.theguardian.com/public-leaders-network/2014/dec/04/civil-service-performance-rankings-discriminatory" target="_blank">performance discrepancies</a> in the civil service; <a href="http://www.theguardian.com/commentisfree/2013/feb/07/tech-sector-meritocracy-jemima-kiss" target="_blank">discrimination</a> in the tech sector; and the <a href="http://www.theguardian.com/football/2014/nov/01/pfa-backroom-jobs-football-ethnic-minorities" target="_blank">under-representation of black and ethnic minorities</a> in backroom roles in football.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">In all of these articles, it is assumed that disparities must be the result of discriminatory exclusion (though I should cite also <a href="http://www.theguardian.com/football/2014/dec/14/why-so-few-black-football-managers" target="_blank">this one</a>, a very conscientious and reasonable article that is hard to fault). There seem to be any number of similarly plausible explanations why, for instance, so few black or ethnic minority actors won Oscars in 2015 – not all of these explanations concern exclusion, and they are sufficiently plausible and sufficiently numerous for a jump to this conclusion to be premature and unwise.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">It is certainly the case that sexism, racism, homophobia exist in the UK; and almost certainly the case that these prejudices cause some of the inequalities that affect our society. But ultimately our society is a big, complex thing and we don’t know exactly why it is as it is – certainly we don’t have anything like strong enough grounds to state from the off that, as a rule, inequalities between groups <i>must</i> be the result of prejudicial discrimination, and therefore we don’t need to investigate further to rule out other causes. This would itself be a prejudice and, as I’ve said already, we simply do not have sufficient knowledge to afford the certainty of prejudice.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">Now of all the possible explanations, it would also be wrong to explain away inequality by saying that groups occupy high or low positions in society <i>deservedly</i>, because of the intrinsic merits of their members. This is merely a supposition, supported by no evidence and lots of prejudice.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">However, is the well-meaning prejudice, the one that automatically assumes discrimination as the cause of inequality, really any better than the jaundiced prejudice that is possibly motivated by racism or sexism?</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">Better the presumption of discrimination, one might think, than the bigot’s presumption that such disparities can only be the result of intrinsic differences between groups. Agreed – as long as we are happy to use kneejerk assumptions and shoddy thinking just as bigots do. But the problem with bigots isn’t just that they have bad, nasty intentions – they also use shoddy thinking, misperceive the world, and fall short of what we could call reasonable behaviour. So we have to think better than the bigots, as well as have better intentions, and that entails avoiding automatic assumptions. Belief that the goodness of one’s intentions obviates any need for good argument leads directly to the self-righteous but empty <a href="http://gawker.com/on-smarm-1476594977" target="_blank">smarm</a> of Owen Jones.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">And indeed, no good cause can be well served by a bad argument.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">There’s a more specific reason why the assumption of discrimination is a very bad idea: in many instances it rewards our efforts to improve society with undeserved self-recrimination.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">Consider: to fight discrimination we must believe that fighting discrimination is the right thing to do, because it alleviates inequality – we must aspire to do it, and we must actually do it. If, however, we must prejudge every remaining instance of inequality as being the result of our society’s badness, of its racism and sexism, then we must also have an <i>automatic belief</i> in our badness, our biasedness, in our <i>failure</i>. Not just the failure of our well-meant attempt to do right, but our moral failure. We end up condemned to a </span><span style="font-family: "georgia" , "times new roman" , serif;">cynically</span><span style="font-family: "georgia" , "times new roman" , serif;"> </span><span style="font-family: "georgia" , "times new roman" , serif;">contradictory double-think: </span><span style="font-family: georgia, 'times new roman', serif;">moral principle motivates us to fight the good fight against discrimination; at the same time, however, we are committed to a belief that </span><i style="font-family: georgia, 'times new roman', serif;">any</i><span style="font-family: georgia, 'times new roman', serif;"> discrimination is proof of our intrinsic bias, and the worthlessness of our efforts to combat discrimination. If our </span><span style="font-family: georgia, 'times new roman', serif;">moral worth in fighting against discrimination is instantly negatable, because of a principled assumption of our own bias and badness, then how can we motivate ourselves to do the right thing? How can it be reasonable to dedicate ourselves to a fight when we are committed to the belief we will lose it?</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">This is an unsustainable contradiction – educated, enlightened societies (if we are such) cannot force themselves to endure an irrational contradiction without something giving way. If inequality persists and this contradiction, this antinomy, continues indefinitely, then somewhere, at some point, a gasket will surely blow. Most likely, we’ll lose patience with the fight against discrimination – which would be self-defeating.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">Now of course, a society that imposes on its members an unquestioning belief in their own culpability can keep on going and even thrive. The Roman Catholic Church has a long history of doing just this, and it also provides an example of how to get people to live with persistent irrationality and contradiction, The problem is, it’s a poisonous process, it requires a big stick, and the modern left believes (rightly) that we ought to aspire to better than this. </span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">We know too that arbitrary self-recrimination is never a good prophylactic against the sin one is trying to prevent: it creates a moral hazard in which good actions are dis-incentivized because they are never rewarded with anything but more punishment and bad feeling.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">And in the midst of this fruitless self-punishment, the actual problem of inequality and what causes it goes unresolved.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">Now admittedly I’m basing all of this on two assumptions – first, on the assumption that things will continue as they are, with inequality persisting and discrimination automatically held responsible. It might transpire that some day discrimination </span><span style="font-family: georgia, 'times new roman', serif;">will</span><span style="font-family: georgia, 'times new roman', serif;"> </span><span style="font-family: georgia, 'times new roman', serif;">end and with it inequality. On the other hand, however, what if, at some point in the future, we had successfully taken every reasonable step to stamp out discrimination and bias, but inequality persisted? Would this be evidence enough to justifying abandoning our <i>a priori</i> belief that inequality must be caused by discrimination? It would surely be grounds for holding, at the least, that </span><span style="font-family: georgia, 'times new roman', serif;">our fixation on discrimination as the cause of the problem of inequality was preventing us from thinking more openly and widely about how to solve that problem. If that moment is hypothetically conceivable, we should ask if it is conceivable in the here and now – does inequality continue to blight our society because we dogmatically blind to the range of factors that might cause it?</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">Second, my 'unsustainable contradiction' would only come about if the people aspiring to fight discrimination blamed <i>themselves</i> for the failure of their fight. Maybe I am making a false assumption – it might be that the anti-racists and anti-sexists would absolve themselves for society’s continuing iniquity, and blame others. In fact, would it not be highly likely that the modern leftist would fight the good fight against discrimination and then blame others (<i>Mail</i>-readers, probably) when the failure of her struggle resulted in society’s persisting racism and sexism? As already noted, the modern leftist tends to be someone who celebrates what is good in himself, and tirelessly denounces what is bad in others. Even if this outcome is the greater likelihood, it’s hardly a better eventuality than the unsustainable contradiction, and there’s small choice between rotten apples.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;"><br /></span><span style="font-family: "georgia" , "times new roman" , serif; font-weight: normal;">Finally, let’s go back to the beginning – why not admit that the question of why our society is unequal is an open one, too difficult to be addressed with foregone conclusions? Why should we be so afraid of uncertainty? A defining characteristic of the modern left, it seems to me, is a discomfort with any sort of uncertainty or ambiguity concerning race and gender – to the extent that refuge in an unreasoned, unthinking sense of certainty is preferred to the unpredictable dangers of reasoning one’s way through uncertainty. This is how the bigot and the religious zealot defend their moral values, but increasingly the left too. Why? Why leave our moral foundations hopelessly vulnerable to the charge of arbitrariness?</span>Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com7tag:blogger.com,1999:blog-7082173774815417367.post-84130808861403391522015-05-07T23:41:00.002+01:002015-05-08T00:03:36.087+01:00Why there has to be an EU referendum<span style="font-family: Georgia, Times New Roman, serif;">The exit polls are in. Whatever arguments there are against another Tory government, their offer of a referendum on UK membership of the EU is not one of them. Here's why I think we need that referendum.</span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">We get to vote for representatives in the European parliament, and therefore have a say in the European laws that our country must follow. Is this enough? No – </span><span style="font-family: Georgia, 'Times New Roman', serif;">accountability and participation are not enough. Government of any sort must be made legitimate by consent to be governed in the first place – we can't have an unwanted government structure imposed on us, and then reasonably say it is legitimized because we get to say which party gets to form that unwanted government. </span><br />
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<span style="font-family: Georgia, 'Times New Roman', serif;">It seems to me that many EU supporters conceive EU government as legitimized by the moral authority of the European mission (togetherness, solidarity, peace) and by its necessity (if we don't do it, we will lapse back into conflict). But I fail to see that these outweigh the fundamental legitimacy of government by consent – and moreover in politics is any moral mission, or any claimed necessity, valid unless also backed by popular agreement?</span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">It is unclear at the moment that, in Britain at least, the EU definitely has popular consent to govern – a considerable number of people seem to think that it doesn't. This lack of clarity affects our political discourse – Europe is so controversial, so undecided, that two of our major parties cannot discuss it without threatening their unity. This is bad – we need united parties to carry out the manifestos that parties are elected on. Doubly bad – it cannot be acceptable that major political parties are unable to discuss a matter of great constitutional importance. </span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">So the country needs to work out if Europe has consent to govern, and the deadlock between and within the political parties needs to be resolved. If </span><span style="font-family: Georgia, 'Times New Roman', serif;">our representatives cannot reach any consensus, the question must be referred to the nation in a referendum. Any PM advocating continued EU membership who backed by a mandate from the majority of the population could </span><span style="font-family: Georgia, 'Times New Roman', serif;">face down any anti-EU dissent</span><span style="font-family: Georgia, 'Times New Roman', serif;">.</span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">The main argument against a referendum is, as far as I can see, is that the populace might make the wrong choice. This is no argument at all. </span><span style="font-family: Georgia, 'Times New Roman', serif;">If we fear or don't like the prospect of convincing the electorate of the best course of action, then let's not bother with democratic politics. </span><span style="font-family: Georgia, 'Times New Roman', serif;">We can't have the current level of EU involvement in UK life without a referendum legitimizing it. But we </span><i style="font-family: Georgia, 'Times New Roman', serif;">can</i><span style="font-family: Georgia, 'Times New Roman', serif;"> have it if we can convince the populace that this is the right course of action for the country. If we think EU membership is the best thing for the UK, let's back ourselves and convince the country to vote that way in a referendum.</span>Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-76079425682014757202015-04-30T23:06:00.000+01:002016-05-07T17:09:31.846+01:00Decline of the left, part 2: Timidity<span style="font-family: "georgia" , "times new roman" , serif;">The <a href="http://argumentativerags.blogspot.com/2015/04/the-decline-of-modern-left-part-1.html" target="_blank">first post in this series</a> asked why some on the modern left behave as badly, and as bigotedly, as those they oppose.</span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">The problem in part comes down to justification – specifically, a misplaced, ideologically driven sense of over-justification. The ‘privileged’ are fair game for name-calling because they are on the wrong side of what is presumed (self-servingly and almost certainly wrongly) to be a moral divide. On the one side of it is the modern leftist and blessed justification, and on the other the damnable privileged. </span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">This tendency towards self-serving schismatism can be seen in the way the largely technocratic difference between UK political parties is overstated, </span><span style="font-family: "georgia" , "times new roman" , serif;">absurdly,</span><span style="font-family: "georgia" , "times new roman" , serif;"> as a moral gulf. (The narcissism of small differences.) The motivation behind this hyperbole, I suggest, is the desire to man long dismantled barricades, to repeat the slogans of the previous generation (‘Tory scum!’), and thus to borrow its certainties and anathemas. After all, if you exaggerate political issues to the point they become a moral schism you can, by putting yourself on the correct side of it, point to yourself as a morally justified crusader.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">So this hyperbolical, and rather self-serving, moral distinction seems to be the cause of the inflated sense of justification, which in turn justifies the prejudiced unpleasantness – the modern left are fighting the good fight!</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">The fallacy that political landscapes endure leads in other curious ways to an excessive sense of self-vindication. I came to political consciousness in the early to mid-nineties, when the sleaziness and nastiness of the Conservative party was axiomatic, and largely in evidence. I’m not minded to make any claims on their behalf, but I don’t think the Conservative party of today is quite the same – British politics being what it is, no political party has remained the same over any twenty-year period. While accepting the fluidity of political parties over time is part of being a grown up, no one seems to have told the modern left, for whom centrist ‘wets’ Cameron and Osborne are, laughably, baby-eating Thatcherites.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
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<i style="font-family: Georgia, 'Times New Roman', serif;"><span style="font-size: x-small;">*sigh*</span></i></div>
<span style="font-family: "georgia" , "times new roman" , serif;"><span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
</span>
<span style="font-family: "georgia" , "times new roman" , serif;">Having clung far too long to the rule of thumb that Tories are nasty and lefties are nice, niceness and nastiness have become integral to the modern leftist’s definitions of left and right-wing politics respectively: to be right-wing is to be <i>by definition</i> nasty, to be left-wing <i>by definition </i>nice. They have made an ontological error – a whopping big one. </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">What do I mean by this? Consider – the modern leftie might entertain misgivings that his name-calling, love of denunciation, prejudice etc. are actually a bit nasty, but if they are then he is in contradiction, because as a leftie he is by definition nice and not nasty. Now he knows he is a leftie because he calls himself one – that hasn't changed – and he knows too that if he is a leftie then he is nice. So how can the nasty behaviour fit in to this without contradiction? A solution to the contradiction follows irresistibly: by a process of elimination, it must be the case that his actions are in fact not nasty after all, and that therefore it is acceptable to name-call, to denounce, and to entertain prejudices. Not just acceptable, in fact – nice. Hence, I suggest, the perceived justness of all this increasingly rancid behaviour.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">The modern leftie is thus rather like James Hogg’s Calvinist sinner, who is sure that, because he is justified by predestined grace, he can never be said to do wrong, despite his terrible crimes. The problem with using any such definition as a starting point is that it makes the moral value of one’s actual actions irrelevant.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">Such absurdity follows on only naturally from what was an absurd premise to begin – i.e. that to be left-wing is necessarily to be nice. The motive behind the modern left's adoption of this stance, unassailable and reality-proof in its absurdity, is, I argue next, a deep and abiding insecurity about how the left should argue its case.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<br />
<h4>
<span style="font-family: "georgia" , "times new roman" , serif;">Timidity and the desire for ‘safety’</span></h4>
<div>
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span></div>
<span style="font-family: "georgia" , "times new roman" , serif;">The fact that sexism and racism and homophobia are serious problems is exactly the reason why they shouldn't be countered by mere assumption and prejudice, by slap-happy accusation: the greater the ease with which we lay a charge against someone, the less seriously we take it. How’s this for a rule?</span><br />
<blockquote class="tr_bq">
<span style="font-family: "georgia" , "times new roman" , serif;">Be as careful and conscientious in making accusations of sexism and racism and homophobia, as you are in avoiding incurring them.</span></blockquote>
<span style="font-family: "georgia" , "times new roman" , serif;">While this might or might not be a good rule (I think it is) it is certainly a simple rule – the modern left’s inability to formulate or grasp it is a fair measure of the utter state it is in right now. It is the morality of someone who gives fair credit to the good in himself, and tirelessly denounces the bad in others. Which is to say, the morality of a child.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">Put simply the modern left, deep down, doesn’t believe in itself. A sure sign </span><span style="font-family: "georgia" , "times new roman" , serif;">of the collapse of the left’s stature and self-belief is its unending preoccupation with the </span><i style="font-family: Georgia, 'Times New Roman', serif;">Daily Mail</i><span style="font-family: "georgia" , "times new roman" , serif;">. To be ungenerous a moment, one might say that it is fitting as the </span><i style="font-family: Georgia, 'Times New Roman', serif;">Guardian </i><span style="font-family: "georgia" , "times new roman" , serif;">and the </span><i style="font-family: Georgia, 'Times New Roman', serif;">Mail </i><span style="font-family: "georgia" , "times new roman" , serif;">are increasingly on a par. Though still – can Guardianistas not see the irony of falling in love with the sound of their own shrill indignation regarding the perma-indignant, ever-shrill </span><i style="font-family: Georgia, 'Times New Roman', serif;">Mail</i><span style="font-family: "georgia" , "times new roman" , serif;">? (see </span><a href="http://www.spectator.co.uk/features/9501282/hating-the-daily-mail-is-a-substitute-for-doing-good/" style="font-family: Georgia, 'Times New Roman', serif;" target="_blank">this excellent article</a><span style="font-family: "georgia" , "times new roman" , serif;">). I agree with James Bartholomew that if the emphasis were on counter-arguing </span><i style="font-family: Georgia, 'Times New Roman', serif;">Mail </i><span style="font-family: "georgia" , "times new roman" , serif;">headlines, or on taking them to task, then all well and good – but overwhelmingly the approach to the </span><i style="font-family: Georgia, 'Times New Roman', serif;">Mail </i><span style="font-family: "georgia" , "times new roman" , serif;">is to use it as a moral orientation point, an identifier of the moral virtue that the left, contrarily, imagines itself to possess: show your left credentials, denounce the </span><i style="font-family: Georgia, 'Times New Roman', serif;">Mail</i><span style="font-family: "georgia" , "times new roman" , serif;">. </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">The <i>Daily Mail </i>is tawdry and intolerant – we know this. But a quality newspaper should not take a tabloid as its counterpart. The <i>Economist </i>does not fill its pages picking apart the arguments of the Socialist Workers Party – it has a justified self-belief that it is better than that, that it can pick on those its own size. That many modern leftists don’t have this self-belief is telling.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">At the party political level, for around 30 years the left has increasingly failed to convince the British electorate of its arguments. Are we witnessing the death throes of a dying ideology, an insecure, punchy, aggro response to the perceived hostility and estrangement of fellow citizens, leading to an increasing exclusion from the mainstream of political debate? Indeed, is this a reason why the university campus (especially in America) has increasingly become a bastion for the most rebarbative and intolerant forms of leftism – a retreat to the embattled but secure space of the quad and the ivory tower? I wrote in previous posts about the curious complacency of opponents of the British monarchy and their seeming reluctance to make their case (which assuredly the royal family are doing with every baby, every photo op, every ribbon cut – see <a href="http://argumentativerags.blogspot.com/2014/05/republicanism-vs-monarchism-again.html" target="_blank">here</a> and <a href="http://argumentativerags.blogspot.com/2013/07/monarchist-or-republican.html" target="_blank">here</a>). The same shying away from argument was seen during the Snowden affair – after the two largest leaks of confidential material in history, the intelligence chiefs came out fighting (see <a href="https://www.youtube.com/watch?v=WNSBr4RewxM" target="_blank">here</a>, <a href="http://www.theguardian.com/uk-news/2014/nov/03/privacy-gchq-spying-robert-hannigan" target="_blank">here</a>, and <a href="http://www.theguardian.com/uk-news/2015/mar/31/mi6-technology-arms-race-terrorists-criminals" target="_blank">here</a>), and yet in defending its campaign and its two enormous scoops the <i>Guardian </i>was seemingly <a href="http://www.theguardian.com/commentisfree/2013/nov/07/intelligence-and-transparency-nothing-to-see-here" target="_blank">unable to argue its way out of a wet paper bag</a></span><span style="font-family: "georgia" , "times new roman" , serif;">. </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">I wonder too if the tendency towards making prejudiced arguments while claiming to attack the prejudiced is also the result of a certain introversion: even though the modern leftist frequently makes arguments as bad and unpleasant as the bigot’s, she can always rescue herself from that comparison because of a belief in her distinctly good intentions. Even if her public arguments, out there in the world, suggest otherwise, in the safe, private, cocooned world of her own intentions, the leftie can assure herself of her virtue.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">In its strongest form, this strange morality, which is certain of itself yet which shies away from challenge, can be pernicious. See, for instance, the website <a href="http://racistsgettingfired.tumblr.com/" target="_blank">Racists Getting Fired</a> (and the BBC report on it <a href="http://www.bbc.co.uk/news/blogs-trending-30854477" target="_blank">here</a>). The blogger scours Twitter looking for evidence of racist behaviour, and when s/he finds it, reports it to the offender’s employer with the aim of getting them fired. There is a lot that is obviously distasteful here – the self-appointed moral supremacism taken to the point of vigilantism; that squalid love of denunciation – but I accept that this could be justified in some instances (an obviously racist judge, say). Most worrying, however, is that upon encountering a racist on social media, the instinct is not to use Twitter’s open forum to challenge the racist, debate him, show the poverty of his arguments, but rather to seek straightaway private vindication and punishment. I can only think that this bizarre and inappropriate use of a public forum is motivated by a deep discomfort with the uncertainty and exposedness of reasoned debate.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">When it is felt there is no middle ground worth fighting for, and no possibility of persuasion, then political discourse degenerates into culture war: that sorry state of affairs whereby debate comes to consist of two parties both trying to be more bigoted than the other. Certainly this has happened in the United States, where this sense of the term ‘culture war’ originated, and whose campus culture is a particular hub of the shrill-yet-retiring left. The intellectual timidity and aversion to challenge this culture fosters is increasingly attracting concern (as <a href="http://www.nytimes.com/2015/03/22/opinion/sunday/judith-shulevitz-hiding-from-scary-ideas.html?_r=3" target="_blank">here</a> and <a href="http://nymag.com/daily/intelligencer/2015/01/not-a-very-pc-thing-to-say.html" target="_blank">here</a>) and I hope this is the beginning of a wider assault. Brendan O’Neill in the UK is also taking a stand. </span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">There is a vicious circle here – and it really is vicious. The more the left-winger assures himself of his lofty moral position by condemning and denouncing, the more diluted and the more abused his own terms become, and thus the weaker his moral position becomes. All the more motivation, then, to continue making even more accusations, in an attempt to regain a position of strength. And so </span><i style="font-family: Georgia, 'Times New Roman', serif;">ad infinitum</i><span style="font-family: "georgia" , "times new roman" , serif;">.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">Pretty much the rest of this series will pursue the line I have attempted to develop above: that the modern left's severity, intolerance, and moral supremacism are all symptoms of, and covers for, a deep underlying insecurity about how to ground moral arguments. The modern left has lost its way terribly, it knows it and it fears it.</span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">Read the next part of my argument <a href="http://argumentativerags.blogspot.com/2015/05/decline-of-left-part-3-moral-hazards.html" target="_blank">here</a>.</span>Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-74826377996810747402015-04-24T13:55:00.002+01:002015-05-13T00:04:11.391+01:00Decline of the modern left. Part 1<span style="font-family: Georgia, Times New Roman, serif;">Modern left-wing arguments are all too often bad: they are weak, and they are bad-tempered. Why is this? Why are so many left-wing people making such poor, self-defeating arguments despite being overwhelmingly intelligent and well educated? And why, furthermore, with such rancour that the once reliable notion of the ‘nice’ left and ‘nasty’ right is increasingly obsolete? </span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">By ‘modern left’ I mean a specific and easily recognizable contingent found among the commentariat and on social media. It has a particular interest in identity politics, and a strong suit in slap-happy denunciation. I am talking about what might, ungenerously, be called the shrill left: Owen Jones (‘the Peter Hitchens of the left’, in the astoundingly true words of <a href="http://www.spectator.co.uk/features/9000431/forget-about-richard-dawkins-fight-the-real-fanatics/" target="_blank">Nick Cohen</a>), Zoe Williams, Laurie Penny, and colleagues of theirs who write for the <i>Guardian, New Statesman, Jezebel, Huffington Post</i>, etc. I remain a supporter of what I call the reasonable left: the aforementioned Nick Cohen, John Harris, James Bloodworth, the formidable Peter Tatchell, David Aaronovitch, Mary Beard, Lisa Jardine, Camille Paglia.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
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<h4>
<span style="font-family: Georgia, Times New Roman, serif;">Two premises</span></h4>
<span style="font-family: Georgia, 'Times New Roman', serif;">First off, two premises that will apply to everything that follows.</span><br />
<br />
<ul>
<li><b style="font-family: Georgia, 'Times New Roman', serif;">No good cause can be well served by a bad argument</b><span style="font-family: Georgia, 'Times New Roman', serif;">. Why not? Because any cause requires common purpose between oneself and others. To pursue common cause arbitrarily (‘it’s a good cause, and that’s all you need to know’) or coercively (‘pursue this good cause or I hurt you’) would offend our dignity as reasoning human beings acting according to our individual consciences. So any cause pursued by arbitrary say-so or coercion would cease to be a good cause. A truly good cause must therefore be communicable and shareable, and for this we need arguments that demonstrate the goodness of the cause clearly, rationally, and convincingly; that way, other reasonable people could agree that the cause is indeed a good one.<span style="background-color: white;"> </span></span></li>
</ul>
<ul>
<li><b style="font-family: Georgia, 'Times New Roman', serif;">No society can call itself decent that makes difference of identity alone, or group belonging alone, the grounds for legal, political, cultural, social, or economic inequalities</b><span style="font-family: Georgia, 'Times New Roman', serif;">. If we can assume that we all feel ourselves to be as human as everyone else, and that we are (with the exception of those who are unwell or impaired) reasoning human beings acting according to individual conscience, then any laws, policies, social conventions etc. that make us less than that, by reducing us to a group label, must be an affront to our basic dignity, and must therefore be bad.</span></li>
</ul>
<br />
<span style="font-family: Georgia, 'Times New Roman', serif;">Obviously, the first premise applies to the second: we cannot promote the cause of an equal, non-discriminatory, non-sexist, non-racist society unless we can defend it with arguments that satisfy the standards of reasonableness and clarity held by our fellow citizens. </span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Why, then, is the modern left so very bad at this?</span><br />
<br />
<h4>
<span style="font-family: Georgia, Times New Roman, serif;">Test case no. 1: Privilege</span></h4>
<span style="font-family: Georgia, 'Times New Roman', serif;">No attack on the modern left could go without a mention of ‘privilege’. Here’s </span><a href="http://www.theguardian.com/commentisfree/2013/may/31/louise-mensch-privilege-internet" style="font-family: Georgia, 'Times New Roman', serif;" target="_blank">Laurie Penny</a><span style="font-family: Georgia, 'Times New Roman', serif;"> writing on it in the </span><i style="font-family: Georgia, 'Times New Roman', serif;">Guardian</i><span style="font-family: Georgia, 'Times New Roman', serif;">. ‘Check your privilege’ is used to notify a privileged person that the argument they are making is or might be a thoughtless product of their background – they should check their privilege and think again.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">But doesn’t it also mean: ‘whatever the sincerity or possible trueness of what you say, and whatever you think as an individual, certain motives and beliefs are always imputable to you because of what you are – so watch out.’ Or rather 'you <i>would</i> say that, wouldn't you?'</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Apart from the obvious and deep unpleasantness of this, it is clearly contradictory – it encourages exactly the sort of objectifying, dehumanizing, reductive thinking that Penny claims to be fighting against, reducing a speaker to an inhuman category (female/male, working-class/posh, gay/straight, black/white, disabled/able-bodied) and thereby offending their human dignity. After all, what if the privileged person isn’t an automaton programmed by his or her background – what if they are speaking as an individual, speaking reflectively after much thought, or expressing an opinion which they have arrived at following a very particular experience or train of thought?</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">It strikes me also as woefully under-examined – I don’t particularly feel that by being white or by being male and able-bodied I have automatically committed myself, or been committed, to any moral positions. The corollary of this would be that our moral stances are not the result of a process of reasoning or thought, but of acculturation and reflex. I find this a dangerous possibility – morals arrived at through reasoning are probably the best sort – though modern leftists such as Laurie Penny should be praised for their consistency here, for their moral stances are indeed arrived at reflexively, and without any reasoning or thought.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Just look, for instance at this poor sap <a href="http://gu.com/p/4449f/sbl" target="_blank">apologizing to <i>Guardian</i> readers</a> because his parents sent him to Eton. One motive behind this form of prejudice I can understand: prejudice against the rich, say, isn’t as bad as prejudice against the poor because the rich can take it – to prejudge them does less damage, it doesn’t enforce any existing social stigma or disadvantage, so let them have it. </span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Unfortunately, however, this doesn’t address the issue of why prejudice is bad as an idea, why it is bad thinking; instead it focuses on the particulars of who and when. It is wrong, and surely shallow, to say that what makes prejudice bad isn't some inherent factor, rather it’s in its misuse or misapplication. Prejudice – it's only wrong if you’re not doing it right, apparently</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">The truth is that prejudice is intrinsically, necessarily a bad thing and not just bad contingent upon particular instances or uses of it; and it is an intrinsically bad thing for largely epistemological reasons: we are never so well-informed that we can dismiss the arguments of others as unthinking reflexes without assessing them first as arguments. Privilege checkers presuppose that, on the balance of probabilities, they don’t need to give someone’s argument a fair hearing or take it on its own terms – but in truth, they have no grounds for knowing the worth of an argument before it has been made. Have we ever been in such a fine and comfortable position that we could<i> afford</i> close-mindedness? Is it not much more rational, much more beneficial to our lives and our wisdom, to give the benefit of the doubt, to assume that we are not in a position to assess the value and usefulness of a contribution until it has been explained to us?</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Penny believes that her ideologically based judgement of someone’s background tells her what she needs to know about what that person is saying. We all know, I think, that this is bigoted lunacy: despite his or her privilege, that privileged person is still the best source of information we have for what he or she is saying.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">If, as per premise two above, we agree that it is bad to judge people as less than thoughtful, reflective persons <i>solely</i> on the basis of group belonging, then asking people to ‘check their privilege’ is an offence to a basic dignity that is not justified by any particular exceptional or attenuating circumstance. It repeats exactly the same mistake as that made by the racist, on the erroneous assumption that the modern leftist’s mistake at least has good intentions and impeccable ideological credentials. Unfortunately, this makes no difference whatsoever. If prejudice was a bad idea to start with, indeed got us into the mess that the left wing seeks to remedy, what has changed such that it is a good idea this time round?</span><br />
<br />
<h4>
<span style="font-family: Georgia, Times New Roman, serif;">The unpleasantness of the modern left</span></h4>
<span style="font-family: Georgia, 'Times New Roman', serif;">This ill-advised embrace of prejudice is one reason why the modern left has become so unpleasant: the hostility to difference of opinion, the shouting down, the love of denunciation, the politics of dirty words (‘Tory’, ‘neo-liberal’, whatever that means) – are not these all the inevitable, predictable results of prejudice and close-mindedness? Someone who is certain that their ideology justifies the belittling of their opponents as mere unthinking ‘types’ will probably be, either as a cause or a consequence, unpleasant. We shouldn’t expect anything else.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">I think people know what I mean when I talk about this unpleasantness. But in case you haven’t, have a look at the reaction to Jeremy Paxman’s outing as a one-nation Tory (<a href="http://www.theguardian.com/media/2014/jun/27/jeremy-paxman-newsnight-made-by-13-year-olds-one-nation-tory" target="_blank">here</a> – many of the commenters seem to mistakenly think one nation Tories are concerned with the Union, rather than social justice), or the bile directed at Helena Bonham Carter after it was revealed that she is friends with David Cameron (<a href="http://www.theguardian.com/film/2014/jun/12/helena-bonham-carter-interview-david-cameron-tim-burton-ts-spivet" target="_blank">the bitch! how dare she!</a>) , or the unspeakably dispiriting spectacle of Guardianistas <a href="http://www.theguardian.com/commentisfree/2014/jun/05/leader-1-d-day-standard-for-our-times" target="_blank">having a pop at D-Day</a> because it’s all just so reactionary, right?.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Or if we are to get all empirical, a Google search for (profanity follows, forgive me) </span><br />
<blockquote class="tr_bq">
<span style="font-family: Georgia, Times New Roman, serif;">“labour | socialist | democrat | democratic | leftwing scum | scumbag | scumbags | filth | cunt | cunts | arsehole | arseholes | asshole | assholes” OR “left wing scum | scumbag | scumbags | filth | cunt | cunts | arsehole | arseholes | asshole | assholes” </span></blockquote>
<span style="font-family: Georgia, 'Times New Roman', serif;">gives <u>52,900</u> Google hits (<u>2,280</u> hits on Google Books); whereas a search on</span><br />
<blockquote class="tr_bq">
<span style="font-family: Georgia, Times New Roman, serif;">“tory | conservative | republican | rightwing scum | scumbag | scumbags | filth | cunt | cunts | arsehole | arseholes | asshole | assholes” OR "right wing scum | scumbag | scumbags | filth | cunt | cunts | arsehole | arseholes | asshole | assholes"</span></blockquote>
<span style="font-family: Georgia, 'Times New Roman', serif;">gives a whopping <u>150,000</u> hits (<u>3,780</u> on Google books). </span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, 'Times New Roman', serif;">Conclusive? Hell no. But absolutely illustrative. So let’s add another reason why prejudice is intrinsically and necessarily a bad idea: it demonstrably coarsens those who practise it.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">I accept that democratic politics must be adversarial, and that inane consensus would be fatal. But we must also look to our most highly educated to shape the debate for the common good, and to help us arrive at the best grounds for political disagreement. This is not happening.</span><br />
<div>
<br />
<span style="font-family: Georgia, Times New Roman, serif;">Read the next part of my argument <a href="http://argumentativerags.blogspot.com/2015/04/the-decline-of-left-part-2-timidity.html" target="_blank">here</a>.</span></div>
Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com2tag:blogger.com,1999:blog-7082173774815417367.post-7088927095355778532015-02-07T21:48:00.001+00:002015-02-09T12:37:39.730+00:00In Which We Serve - a favourite scene<div class="separator" style="clear: both; text-align: left;">
<span style="font-family: Georgia, Times New Roman, serif;">I thought I'd use the 50th anniversary of Churchill's death as an excuse to post one of my favourite moments in film. It's from <i>In Which We Serve</i>, a propaganda film (though an excellent one, and it cheers on the good guys) released in 1942 while the war still raged. The particular scene comes as HMS Torrin, the ship and crew at the centre of the film, disembarks the soldiers it has just evacuated from Dunkirk.</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">I defy even the toughest cynic not to be a little bit stirred by this:</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;"><iframe allowfullscreen="" class="YOUTUBE-iframe-video" data-thumbnail-src="https://ytimg.googleusercontent.com/vi/fvQ5pj3aXoc/0.jpg" frameborder="0" height="266" src="http://www.youtube.com/embed/fvQ5pj3aXoc?feature=player_embedded" width="320"></iframe></span></div>
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<span style="font-family: Georgia, 'Times New Roman', serif;">The soldiers are tired, beaten, and dejected, and the country as a whole is looking pretty knackered too. When the sergeant major gives the order to move out from the dock, however, they straighten themselves and march away in perfect, disciplined order. They will fight on.</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">What I like about the scene is how it is so burstingly pregnant – it says so much, yet so quietly. The soldiers' resilience and doggedness seem to represent that entire strain of rhetoric and that national mood that define summer 1940 in our imagination – 'Very well, alone', 'All behind you, Winston', '<a href="https://www.youtube.com/watch?v=2uwCMf71nOA" target="_blank">we shall never surrender</a>' – but it does so almost wordlessly.</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;"><a href="http://www.cartoons.ac.uk/record-image/standard/LSE2772" target="_blank"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEidmMyi7Je_UpZEIp1EUM8EqS3iKuCnGmFy4aDhgOYtPzaviXLF_-I9fcqK8uSEiNQSbrOJGmUW5zYKJ8xZaDOLw7CoynKUc8ZdZjatxYYrMh12RIOaYiXSnbxD7MBzJzsvzgCBE5I6vvho/s1600/all+behind+you.jpg" height="156" width="200" /></a><a href="http://blogs.telegraph.co.uk/news/files/2014/06/Very-well-alone-then-David-Low-Evenign-Standard-1940.jpg" target="_blank"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj3mitM-QNjZFvzJ-D9rpuQDgghV2fsKasHXqDNj42smftUM5kTCO1KVzG9qj14GubHZQlng5ziwmO8H3fqzf_iNUjSzHycmVd08GKyPDf3CPclx_a1uJgNHqpUnHMMfVOmZbBCSjI8VsCE/s1600/Very-well-alone-then-David-Low-Evenign-Standard-1940.jpg" height="166" width="200" /></a><span id="goog_1160814627"></span><span id="goog_1160814628"></span><a href="https://www.blogger.com/"></a></span></div>
<span style="font-family: Georgia, 'Times New Roman', serif;"><br /></span>
<span style="font-family: Georgia, 'Times New Roman', serif;">It is an intensely patriotic scene, but I don't think it has to be – in its taciturn avoidance of the obviousness and loudness of political rhetoric, it leaves us free to enjoy it simply as a celebration of righteous determination, of the bravery of doing the right and necessary deed. </span><span style="font-family: Georgia, 'Times New Roman', serif;">One of the film's themes is the unity between social classes during wartime emergency (and, by extension, this as a human decency worth defending against fascism) and the quiet, unshowy determination of the fighting men to maintain their discipline and not give in feels like a counterpart to the political elite's rhetorical exhortations of 'never surrender'. This is the common soldier's message of defiance and encouragement, and it works – 'if I wasn't so tired I'd give them a cheer' says John Mills when he sees it.</span><br />
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<span style="font-family: Georgia, 'Times New Roman', serif;">There might seem to be something antagonistic about this – the working men of the army encourage with their actions, as opposed to the mere words of the politicians – but </span><span style="font-family: Georgia, 'Times New Roman', serif;">given the rather conservative class politics of the film, this seems unlikely. One strikingly outdated aspect of the film is its emphasis on duty – it exhorts the British to 'do their duty' and fight, rather than asking them to find within their own individual conscience the moral reasons why the war was good and worth fighting. As we tend now to assume the latter was the crucial motivation of those who fought Nazism, this emphasis is doubly striking. As I remember it, there is only one, passing mention of Nazi atrocities.</span></div>
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<span style="font-family: Georgia, Times New Roman, serif;">And it's great as film-making because it says everything indirectly through exemplification, without having to state the baldly obvious or harangue the viewer. </span><i style="font-family: Georgia, 'Times New Roman', serif;">In Which We Serve </i><span style="font-family: Georgia, 'Times New Roman', serif;">is a great film. Noel Coward directed as well as starred, though I read somewhere that the film-making process soon bored him, leading him to hand over most of his duties to his co-director, maestro-to-be David Lean. I like to think this scene is one of Lean's.</span></div>
Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-44990880724996737582015-02-06T02:19:00.003+00:002016-05-07T17:47:31.297+01:00On Borges<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;">[<i>This is a longer version of the review I wrote for Eli Lee's excellent <a href="http://booksoftheyear.tumblr.com/post/110345736841/fictions-jorge-luis-borges" target="_blank">Books of the Year</a> blog</i>]</span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">My book of 2014 is Jorge Luis Borges’ <i>Fictions</i>, a work of 1944 containing two collections of short
stories: ‘The Garden of Forking Paths’ and ‘Artifices’. Borges, an Argentinian,
wrote in Spanish, but I have made do with Andrew Hurley’s Penguin translation.<o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">In the recent film <i>Birdman</i>,
Edward Norton’s character is confirmed as the insufferable pseud that he is when
we see him reading some Borges while reclining on a sunbed. This smarted a
little – ‘at least you’d never catch me on a sunbed,’ I thought, rather
pathetically. But on further reflection – and Borges is a master of making us
think again – I became certain the director was dead wrong in making Borges a
byword for thin pseudery. His short stories, especially those in ‘The Garden of
Forking Paths’, are probably the most richly imaginative, profoundly
thoughtful, bewitching literary works I have read.<o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">If you haven’t read any yet, do it. <i>Today</i>. Borrow my copy – I’ll mail it to you (once I’m done with
it).<o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">So to give you an idea of the mental journeys one can enjoy
reading Borges (‘mental journeys’ as in ‘voyages of the mind’, but the sense
‘like, <i>totally mental</i>’ fits too) I am
going to talk about Borges the anti-realist.<o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;"><b>The dodgy
encyclopaedia</b><o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">Borges’ best short stories, in my opinion, are those in the
form of thought experiments. ‘The Garden of Forking Paths’, first published in
1941, was Borges’ first foray into this meditative, philosophically-minded mode,
and the collection begins with a story about the discovery of a strange encyclopaedia
in which is described an entirely new, unknown world. It’s called ‘Tlön, Uqbar, <i>Orbis Tertius</i>’ – terrible name, but
don’t let that put you off as it sets up lots of important Borgesian questions.<o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">In the story Borges and a friend come across a seemingly
rogue edition of the <i>Anglo-American Cyclopaedia
</i>that contains an entry about an otherwise unattested land called ‘Uqbar’. There
are details of its geography, history, language, and more, but no other book mentions
it. This proposes immediately the simple terms of the thought experiment: if we
obtain our information about the world from encyclopaedias, how could we tell
when an encyclopaedia misrepresents it? <o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">As you might have guessed, Uqbar is just the beginning: yet
more anomalous volumes arrive, seemingly authorless, describing an even larger,
even more complete world called Tlön
to which Uqbar was merely the introduction. It is discovered eventually that
Tlön is </span><span style="font-family: georgia, 'times new roman', serif;">the</span><span style="font-family: georgia, 'times new roman', serif;"> </span><span style="font-family: georgia, 'times new roman', serif;">centuries-long work of a group of scholars, but the discovery is
too late – the distinctions between Tlön and the real world have started to
dissolve, and the touchstones of reality are out of reach. Our grip on reality is lost. The
short story might therefore be called sceptical – and Borges explicitly links
the failure to keep a hold on reality to the spread of the debased fictions of
Nazism.</span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">Back to the encyclopaedia: it is our normal, first-resort
means of assessing claims people make about the world – we encounter problems
when we question it, because doing so force us to
achieve an even more encyclopaedic knowledge of the world than the
encyclopaedia itself. What other source can we fall back on to correct or
affirm the encyclopaedia’s picture of the world and its contents? <o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">Borges takes us to this limit of our knowledge, and illuminates
the dark scepticism that lies just beyond it – might the tail be wagging the
dog? could our supposed knowledge of the world be merely a fiction dreamt up by
writers of reference works, safe in the knowledge they cannot be contradicted? <o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">Of course, we can come up with answers to these questions,
and work our way back towards certainty. It is almost certainly the case that
encyclopaedists have a grasp on the objective real world, because different
encyclopaedias all say roughly similar things – the likelihood of them
corroborating one another by pure coincidence is vanishingly tiny, as is the
probability that there is a league of devious encyclopaedists all conspiring together
to pull the wool over eyes (but hold that thought). Instead, it must be the
constancy of the real world that causes different encyclopaedias to resemble
one another despite having independent origins.<o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">Furthermore, even though the encyclopaedia <i>seems</i> to constitute a vast, unified
totality of knowledge, it is not knowledge derived from a single, Archimedean
perspective upon the whole world, and we do not need to find such an impossible
perspective from nowhere to verify or assess the encyclopaedia’s contents. Encyclopaedias
are really composed from networks of testimonies, teams of people all of whom
can reasonably trust in the accuracy of one another’s entries even if they
themselves cannot individually know the facts behind every single one. Even
though the encyclopaedic snapshot of the world is assembled not in one single
mind but in the minds of many, there is a reasonably good that chance that its
piecemeal entries, all corroborated by the reasoned and tested trust that each
contributor has in the testimony of the other, and that the editor has in them
all, add up to a true and verified depiction of the objective world.<o:p></o:p></span></div>
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<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;">(Incidentally, the idea of seeing the world-all-at-once is a
typical Borgesian conceit of an impossible or unobtainable totality. He will go
on to develop it in a later short story ‘The Aleph’, in which a lucky man has
in his cellar a small gap through which he can see the entire world in a
glimpse.)<o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">I’m not sure, however, that this really does enough to
banish the scepticism Borges unleashes upon his reader. Yes, a single view of
the world and its entire contents is impossible, and a figure of impossibility
Borges likes to play with, and yes, we make do instead with a patchwork of
testimonies – but how can I be satisfied leaving the matter like this, when I
know in my mind that the world in fact <i>does
</i>exist as one single whole even if I cannot perceive this? I am haunted by a
shadowy inference of the world-all-at-once, and the impossibility of perceiving
it doesn’t banish from my mind the intuited fact of its existence, nor the fact
that the encyclopaedia fails to capture it. Here at least is a discrepancy
between encyclopaedia and world.<o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">We would all agree, I think, that an encyclopaedia should <i>not</i> include an entry in which I try to describe
the notion I have in my mind of ‘the world and its contents all at once’. We
should describe it instead bit by empirically describable bit – geography,
climate, fauna, history, etc. – instead of resorting to the purely notional.
But this raises another problem, suggesting we have not yet properly dealt with
Borges’ sceptical starting point. Abstract ‘facts about’ and ‘facts of’ are not
what the world is made of – they are just happenings in our minds, whereas the
world is made of concrete stuff. But isn’t the encyclopaedia’s snapshot of the
world abstract in a way that puts it at odds with the world it purports to
describe? (and I don’t just mean abstract in that anything put in language is
abstract). Consider: the writer of the entry of Bhutan knows that the capital of
that nation is Thimphu because he has been there, and the writer of the entry on
water knows that water is made of hydrogen and oxygen because he has seen as
much through a microscope – but no one person can have such first-hand knowledge
of <i>every</i> entry, and therefore for
every entry-writer, for its compiler, and for the reader the encyclopaedia <span class="CharAttribute2">is a varying patchwork of light and shadow: that
Bhutan’s capital is Thimphu is verified true knowledge for one person but it is
mere facticity, a mere summary fact for her chemist colleague – the </span><span class="CharAttribute2">fact</span><span class="CharAttribute2"> of this being the
case, which is backed up by the </span><span class="CharAttribute2">fact</span><span class="CharAttribute2"> that the trained, well-travelled Orientalist has the
credentials to speak on this matter with authority. <o:p></o:p></span></span></div>
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<span class="CharAttribute2"><span style="font-family: "georgia" , "times new roman" , serif;">No one person can
verify it all – he would have to rely on trust and the mere fact of things
being the case, when facts are abstract and not the stuff the world is made of.<o:p></o:p></span></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">If the contents of the encyclopaedia cannot be sufficiently
verified to convince the sceptic that it definitely represents the world as it
really is, then it is no wonder Borges and his friend cannot easily dismiss
their rogue edition as inaccurate.<o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">Now consider this – the orientalist has been to Bhutan and
seen that it contains Thimphu as its capital, the chemist has peered at water
through a lens and seen its composition from hydrogen and oxygen. That is one
way in which they truly know their objects of study – by knowing the attributes
that make up complex entities, and it is in bearing witness to such details
that they can claim to describe the world truthfully. But we must be careful
not to assume therefore that the presence of complexity and compositeness are
themselves trademarks of the real world which would allow us to tell a genuine
encyclopaedia from a dodgy one. For Borges and his friend are partly seduced by
the sheer <i>thoroughness</i> of their bogus
encyclopaedia – it does not seem like a fictional cardboard cut-out created by
mere say-so (what’s the name of the attendant second from left in <i>Hamlet</i> 1.2? he doesn’t have a name, he
wasn’t given one) because it mimics the dense complexity of real things: again Uqbar
has a history, places, a language, etc.<o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">An
encyclopaedia, therefore, can mislead<span class="CharAttribute1"> by mis-describing the attributes and qualities of what <i>does </i>exist (‘horses have six legs’) and also,
as is the case here, mislead by describing the qualities and attributes of what
<i>does not</i> exist (‘unicorns have
horns’). That second example is all sorts of problematic – it is of course, in
some way, a pure fact that unicorns <i>do </i>have
horns, just as within a certain way of thinking it is <i>true</i> that Sherlock Holmes lived at 221b Baker Street and <i>false</i> that he lived at 23 Railway
Cuttings. It is not merely that non-existent entities can bamboozlingly
resemble real entities by being complex – their complex network of attributes
are held together by the same bonds of abstract facticity that glue together
real things and, as it was noted above, the encyclopaedia itself. <o:p></o:p></span></span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><span class="CharAttribute1"><br /></span></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">We can
chase ourselves into an endless rabbit-hole (or labyrinth, to use Borges’
preferred metaphor) by attaching ever more attributes to fictional things, and
then attributes to the attributes (‘and at 221b Baker St there lived James
Watson and Mrs Hudson, and Mr Watson was a doctor…’). It might seem obvious that
we could stop ourselves from entering into such a dangerous, endless recursion into
illusory realities by keeping hold of a touchstone starting premise, a thread
to guide us through the labyrinth – unicorns are not real to begin with, and
any attributes I attach to them subsequently are equally unreal, no matter how
well they hang together. But when we have valid doubts about whether even
encyclopaedias can reliably distinguish what is real and what is not in the
first place, how much of a touchstone is this starting premise?<o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;"><b>The importance of
unreality</b><o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">Borges isn’t actually saying, I don’t think, that we don’t
know the real world when we see it, or even that we couldn’t tell a fake
encyclopaedia if we saw one. Rather the fun is in entertaining the doubt and
then testing how well we could defend our original premise against it – it is
like imagining getting ourselves lost, just so we can learn our way home and
much else on the way there.<o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">It might be objected that my approach has been philosophical
(or, alas, pseudo-philosophical) and not critical, and this isn’t the point of
reviewing a book. Well, if these sorts of musings aren’t your thing then you’re
probably having a pretty horrific time, let’s not mince words. The fact is,
however, Borges is a philosophical writer – allusions to philosophers, explicit
and not, are found throughout his stories (and their handwriting is all over
the themes discussed throughout – Descartes, Leibniz, Meinong, Russell,
Berkeley). More important, the stories are irresistible temptations to
speculate. Hypothetical ‘what ifs’ are only ever starting points, and reading
Borges without cutting adrift now and again would be like buying yourself a
jigsaw puzzle but refraining from disturbing the pieces.<o:p></o:p></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;">Sod that. Onwards.<o:p></o:p></span></div>
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<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;">As the first work in the collection, ‘Tlön, Uqbar, <i>Orbis Tertius</i>’ creates the premise for
the explorations in the stories that follow – if we can find no rock-solid
grounds for separating fiction from reality, and saying which came first, then
all is not necessarily lost. Even if we have to give up on achieving a picture
of how the world ‘really is’, there are still open to us the vast expanses of
possibility – the world as it can be re-conceived and re-made in our minds, and
the infinite potential of hypothetical modes of thinking uncoupled from
agonizing questions of reality and falsehood. This is the starting point, then,
for the extraordinary thought experiments that make up the rest of ‘Garden of
Forking Paths’ and, to a lesser extent, ‘Artifices’. They take us to some
arresting, and entirely unpredictable conclusions.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;">One particularly thought-provoking conceit Borges likes to
entertain is the possibility of counter-factuals (possibilities, things that
could have happened but didn’t) existing simultaneously alongside the real
things that <i>did</i> happen. In the
impossible novel described in the story ‘The Garden of Forking Paths’, Borges
conceives of just this:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0cm; margin-left: 36.0pt; margin-right: 33.1pt; margin-top: 0cm;">
<span style="font-family: "georgia" , "times new roman" , serif;">In all fictions, each time a man
meets diverse alternatives, he chooses one and eliminates the others; in the
work of the virtually impossible-to-disentangle Ts’ui Pen, the character
chooses – simultaneously – all of them. <i>He
creates</i>, thereby, ‘several futures,’ several <i>times</i>, which themselves proliferate and fork.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;">A similar kind of novel is mooted in ‘A Survey of the Works
of Herbert Quain’. What is, within the confines of reality, merely ‘modal’ or ghostly
and notional (unrealized possibilities e.g.) is raised by Borges to parity with
the actual – in this speculative mode of writing, the stranglehold of the real
is broken. There are other quintessentially Borgesian features here: the
impossible, all-at-once totality of mutually exclusive possibilities
simultaneously existing alongside one another; and the prospect of an unreal
premise (what didn’t happen) spinning off into an endless recursion of forking
paths, leading us well and truly down the rabbit hole.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;">These metaphysical adventures can be dangerous – I fancy it
wouldn’t take many forks in the path before we forgot that the first road we
took was the merely ‘possible’ one, not the real one. As with the dodgy
encyclopaedia, this is how the real world can disappear from view entirely. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;">But these metaphysical misadventures can also illustrate the
poverty of the real, and our total reliance on the intangible. In ‘Funes his
Memory’ (a title also translated as ‘Funes the Memorious’) Borges imagines a
man who following an accident is gifted with a prodigious memory – he remembers
not just everything he has ever encountered, but every moment in which each
thing existed. So he doesn’t just remember the tree outside his window, but the
tree as it was on Monday, as it was on Tuesday, on Wednesday etc. His memory
(probably another impossible totality) records reality so accurately, so
atomistically that he ends up with a mass of fragmented, meaningless details – to
have a sense of the tree being the same tree each time we encounter it (i.e. in
each of its temporal instantiations) we need to have an abstract notion of it
as an abiding thing, to have a higher-level category which groups together all
of its different appearances in time, and all the different forms it has taken
(sometimes wind-ruffled, sometimes without leaves, etc. but still the same
overarching thing). <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;">However, this organizing notion of the tree as a single
thing that is identical over time cannot be found and witnessed and remembered through
experience of the real world, as it is internal to the mind, intangible and
abstract – Funes, for whom knowledge of the world is memory of what he has
seen, cannot grasp the metaphysical category ‘thing’. He is also unable to
recognize things that are new to him: what commonality could he detect between
the past things he knows and the new thing before him, <i>without</i> recourse to a higher-level, abstract idea of identity that
encompasses the two? The novel item could not be reconciled or fitted within Funes’s
mental database of past things, because they are all crisp, discrete, and fixed
to their particular time.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;">Hence the paradoxical theme of the story: a man who
remembers everything in the world in fact remembers <i>no thing</i>. He has been seduced by the appealing but misleading
solidity of the physically real. Funes, to borrow a snatch of T. S. Eliot,
suffers from too much reality.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;">Or take for instance the endlessly rich ‘Library of Babel’. No
ordinary library, its books contain random combinations of letters in an
incalculable number of permutations:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0cm; margin-left: 36.0pt; margin-right: 33.1pt; margin-top: 0cm;">
<span style="font-family: "georgia" , "times new roman" , serif;">Each wall of each hexagon is
furnished with five bookshelves; each bookshelf holds thirty-two books
identical in format; each book contains four hundred ten pages; each page,
forty lines; each line, approximately eighty black letters.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;">No one knows how many hexagonal rooms there are – possibly
an infinite number. As with monkeys and typewriters, if the library contains
every possible permutation of letter sequences, and every possible permutation
of sequences of those letter sequences, then the librarians who tend it must be
guardians of every true statement that can be made about the world. Somewhere
out there, pre-existing in physical form, are all the truths of the universe
just waiting to be found.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;">The problem is, of course, that every fallacy is there too.
And every refutation and every defence of every fallacy, and every refutation
and every defence of every truth. Located in the library somewhere there must
also be books that translate one another – but as the relation will be merely
coincidental, could we still call it translation, which entails a determinate
relationship of prior original and a subsequent rendering? In fact what would
stop us from saying that a book of seemingly random letters is in fact a
scholarly work of history, say, but written in a previously unknown language –
the letters ‘sfarblem’ are repeated in a consistent pattern and can be taken to
mean ‘king’, the small, very commonly repeated sequence ‘yy’ is clearly some
sort of function word perhaps meaning ‘of’, and the sequence ‘rhuttem’ follows
these two other sequences very frequently and almost certainly means ‘the
land’. As long as the book has the same types of patterns of repetition that
one finds in Spanish or English, say, what would stop us from attributing meanings
to the sequences and, hey presto, discovering a new language?<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;">We wouldn’t call this a new language because languages are
used by people to express thoughts, and these sequences belong to no people and
have behind them no thoughts. Similarly, refutations and defences and
translations are all speech acts made by persons with intentions – these are no
more speech acts than Scrabble tiles in a bag waiting to make a word. <span class="CharAttribute1">Moreover, when a human mind
produces utterances (however that actually happens) it does not simply spill
out random letters in the hope of making sense, as was the case with the
mysterious founders of the Library – there is a preceding mental process which
is at least as important as the putting together of the letters. The truths
found in the library of Babel therefore only look superficially like truths. <o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">What’s
more, how would we know when we had found the books that tell truths, and the
ones that counter-argue those truth, etc.? We would still be in the position of
having to match up the strings of letter with meanings – the randomly generated
books couldn’t do this themselves, and we could not presuppose any guiding
intentions that make the letter sequences follow the course of logical,
coherent discourse. We’d have to do the hard work of imposing a meaning
ourselves, because there wasn’t one there in the first place, no meaning mind
putting things in place. Similarly, if a librarian sought the one book that
proves the existence of God she could only find it by knowing what she was
looking for in the first place – by predicting what the proof would look like,
and then picking the book that fits her thought.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">So
we would end up doing so much supplementary mental work in addition to the
letters on the page that we would surely question whether the truths were
contained in the actual books themselves at all: the physical books contain
nothing without mental supplementation. Which gives rise to a paradox similar
to the one above: it is conceivable that, if we were guaranteed possessors of
every single truth about the world that can be stated, we would still be none
the wiser – nothing in the library itself enables the librarians to discover
its truths. It is, in essence, merely the world’s biggest Scrabble bag. The
mythical Babel is of course the birthplace of language as we know it, the point
at which our ancestors realized that languages could be unknown and potentially
hold secrets from us, but also, notably, the point at which languages became
meaningless to us. Language conceived as purely physical artefact is, Borges
seems to be saying, meaningless.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;"><span class="CharAttribute1">The poor librarians
end up like the dupes taken in by the dodgy encyclopaedia – presented with a
library that claims to contain the entire world, they choose that over the real
version: </span><span class="CharAttribute1">‘the
certainty that everything has already been written annuls us, or renders us
phantasmal.’<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;"><span class="CharAttribute1"><b>Problems of discrepancy</b></span><span class="CharAttribute1"><o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">I
wonder if we could say that the puzzles described by Borges can be categorized,
very roughly, according to two types of discrepancy. The first is the
discrepancy caused by our over-active minds: because they are not hard-wired
into concrete reality, they are able to spin off on wild abstract trains of
thought independently of the real world, creating things like fake
encyclopaedias. <o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">The
second discrepancy is the other way around: sometimes the concrete things that
thinking, intending humans create long outlive the thoughts and intentions of
their creators, resulting in the presence of anomalous, unexplained artefacts.
I’ll argue that Borges describes many such artefacts, but before that I’ll tackle
the first discrepancy, between the realities our minds can conceive of and the
reality offered by the physical, concrete world.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;"><span class="CharAttribute1">We
saw this discrepancy in the lying encyclopaedia of </span>‘Tlön, Uqbar, <i>Orbis Tertius</i>’ – despite the real world
not containing a place called Uqbar, the writers were able to do a good job of
creating it, simply because they knew that readers can conceive realities other
than those that exist (or have being) in the world and because the internal
relations that structure a fictional object are seductively similar to the
relations (of facticity, of mereology) that structure reality. As soon as we
lose ourselves amid those internal relations, and forget that our starting
point was a falsehood or potential falsehood, we are all at sea.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">We
see in the story ‘The Lottery of Babylon’ another example of what happens when
we lose our starting point. The Babylonians have got themselves into a fix by
putting a lottery in charge of all decision-making and all judgements. Once
committed to this course, the madness can only deepen: if one decision, e.g.
the death sentence, is dictated by chance, then it stands to reason that all
the decisions subsequent to it should be dictated by chance too.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0cm; margin-left: 36.0pt; margin-right: 33.1pt; margin-top: 0cm;">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">Is it not ludicrous that chance should dictate a person’s death
while the circumstances of that death – whether private or public, whether
drawn out for a century or an hour – should <i>not</i>
be subject to chance?<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">The
logic is undeniable – to do otherwise would be arbitrary. But as soon as we
prioritize this internal consistency of relations we find that a terrible and
absurd idea becomes self-justifying and self-perpetuating, and we lose sight of
what should surely be our starting, determining premise – that governing our
lives and those of others by mere chance is a crazy idea.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">The
patterns of many of Borges’ stories act out this runaway-train propensity. Many
of them begin with Borges claiming to have found a book, or even just come up
with a story, which he then delves into. As it proceeds, the original
storytelling frame of the book Borges came across fades and we feel we are in
the action itself – we lose our grip on the starting premise that this is just
Borges describing a book he has read or, in the case of ‘The Theme of the
Traitor and the Hero’, an idea for a plot that he has come up with, and think
of it as a directly narrated story, rather than a story within a story. In ‘The
Theme of the Traitor and the Hero’ we see also a recursion in the opposite
direction, a regress suggesting that the starting point isn’t a starting point
at all because there is something prior to it still:<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0cm; margin-left: 36.0pt; margin-right: 33.1pt; margin-top: 0cm;">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">In my spare evenings I have conceived this plot – which I will
perhaps commit to paper but which somehow already justifies me. It needs
details, rectifications, tinkering – <i>there
are areas of the story that have never been revealed to me</i>.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">The
sentence I have emphasized suggests that a fictional story can have no firmly
fixed starting point, for any past-tense narration of events implies by
inference some ghostly original that preceded and caused the narration. We are
in a labyrinth (the quintessential Borgesian metaphor): we always lose our
starting point because our tendency to think abstractly over and above what is
before us leads us astray from it. We either imagine ourselves back to some
presupposed original that never existed, or fling ourselves headlong down the fictional
garden path, duped by the image of internal coherence into forgetting the
all-important premise that frames the narrative.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">The
other quintessentially Borgesian figure is the mirror, ‘abominable, for they
multiply the number of mankind’, and it too thematizes his philosophy of
fiction. Our ability to play around with language and to use pure definitions
that don’t match up to real things (i.e. to speak intensionally) can lead us
into illusory halls of mirrors, labyrinths in which we get lost amid empty
reflections. <o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">Consider
this: if I mention Mahatma Gandhi (1869-1948) there is no way I can avoid the
entailments of ‘Indian’, ‘political figure’ as these are determined by the real
world, and invoking him commits me consequently to a number of attributes over
which I have no choice. However if I begin my still-unwritten novel with the
words ‘There once was a man called John Smith’ there is nothing that says he
has to be Australian, or that he has to have a limp, even though that is how I
go on to portray my character John Smith. Or if I mention Romulus, I can’t do
anything to avoid my interlocutor’s inferring the entailment ‘has a brother
called Remus’; however if I mention that my limping antipodean protagonist has
a brother called Roger, then I have made up Roger just as I made up John Smith.
Even though we can treat fictional characters much like real people and write quasi-biographies
for them (there are many of these on Wikipedia – fml), the defining attributes
narrators give them are really just as ontologically unsound and flimsy as the
original ‘John Smith’ I asserted into existence merely by saying ‘There once
was a man called John Smith’. <o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">Perhaps
I am belabouring this point. In brief, this is another explanation of why we
shouldn’t be taken in by complexity or compositeness (even though we often are
when we read fictional narratives): there is nothing organic about the way a
character resolves into the subsidiary attributes that define her, for most of
her attributes are mere further continuations of the original pretence that she
exists, and not secondary effects of that original pretence. It is, to use a
highly Borgesian phrase, a labyrinth of false reflections.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><b><span style="font-family: "georgia" , "times new roman" , serif;">Confounding creations<o:p></o:p></span></b></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">Are
there any aspects of fiction and its philosophy that Borges did <i>not</i> explore? Like the miraculous objects
he envisages, he himself is impossibly compendious in his thoughts. For he also
touches upon the problem alluded to above – that fictions end up being more
than the sum of their parts. But how?<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">I’m
not sure the answer is in Borges, or if it is then I can’t make it out, but as
always his weaving exploration of the problem is almost as satisfying as any
answer to it. One exploration of it is in the story ‘The Circular Ruins’, in
which an unnamed holy man sets himself the task of creating in his dreams a
human being. We do that most nights we dream, you might object, but this dream
is different – the dreamer wants to <i>build
</i>his man from scratch, bit by bit, whereas we everyday dreamers merely dream
of a man as a totality whose attributes and bits-and-bobs follow as entailments
from the category heading ‘man’. (I wonder, by the bye, if Borges’ inspiration
for the story was a question many of us ask – when I dream I am reading a book,
does my dream also create an entire book for me to read, or do I dream merely of
the <i>fact</i> that I am reading a book?). <o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">The
dreamer caps his work by approaching his god and asking for his dream-man to be
made real (a bit like <i>Weird Science</i>
then). The wish is granted, but soon the dreamer fears that, like
Frankenstein’s monster, his son might realize he is merely someone’s artificial
creation and not an autonomous being in his own right:<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0cm; margin-left: 36.0pt; margin-right: 33.1pt; margin-top: 0cm;">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">He feared that his son would meditate upon his unnatural privilege
and somehow discover that he was a mere simulacrum. To be not a man, but the
projection of another man’s dream – what incomparable humiliation, what
vertigo! Every parent feels concern for the children he has procreated (or allowed
to be procreated) in happiness or in mere confusion; <i>it was only natural that the sorcerer should fear for the future of the
son he had conceived organ by organ, feature by feature</i>.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">I
have italicized the bit where the rub lies. If he knows every composite bit of
his son, because he built him, how can he fear the thoughts his son might
entertain – surely if he knows how high he can stretch, having made his arms
and legs, he should know what thoughts he can have, having made his brain?
We’re getting into obvious philosophical territory here, and classic questions
of brain vs. mind, and the problem of other minds – the dreamer cannot know his
son’s thoughts because the minds of others are always closed to us. I wonder if
the title drops a clue (Borges, a lover of detective fiction, seeds his works
with clues): the circular ruins the dreamer lives within seem to refer to the
idea of mind expressed by F. H. Bradley:</span></span><span style="font-family: "georgia" , "times new roman" , serif;"> </span></div>
<blockquote class="tr_bq">
<span style="font-family: "georgia" , "times new roman" , serif;">My external sensations are no less private to myself than are my thoughts or my feelings. In either case my experience falls within my own circle, a circle closed on the outside; and, with all its elements alike, every sphere is opaque to the others which surround it…. In brief, regarded as an existence which appears in a soul, the whole world for each is peculiar and private to that soul.</span></blockquote>
<div class="ParaAttribute4" style="margin-right: 33.1pt;">
<span class="CharAttribute1" style="font-family: "georgia" , "times new roman" , serif;">This
is from </span><span class="CharAttribute3" style="font-family: "georgia" , "times new roman" , serif;">Appearance and Reality</span><span class="CharAttribute1" style="font-family: "georgia" , "times new roman" , serif;"> (1893), a work that Borges quotes elsewhere so an allusion is
highly possible. So trapped is the dreamer in his own circle that he doesn’t
realize until the very end of the story that he too is just an artifice created
by someone else’s dream.</span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">The
paradox here is that the dreamer has somehow created something (the mind of
another) that is fundamentally alien to himself, unknowable and discretely
separate. How can this happen? Is it that he followed the necessary ingredients
to create a brain, all of which are pure physical matter, and when he put them
together they bonded to create something new, consciousness, which has a life
of its own? If so, then we are once again lumbered with the problem that our
mental processes must be uncontrollable chain reactions that run away with
themselves, our starting points undermined so that we end in ignorance and
alienation – despite his absolute control of every bit of the process, the
dreamer still ends shut out from the possibility of understanding his son. But
doesn’t the creation of entities that are greater than the sum of their parts
invoke the fallacy of creation <i>ex nihilo</i>?<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">Moreover
if, as I argued above, mental constructs are essential to being human, and
without them we end up like poor Funes or the hopeless librarians of Babel,
what do we do with the fact that we can only perceive and know our own, but
never other people’s? It is difficult to read the story without verging on
profound scepticism.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "georgia" , "times new roman" , serif;"><span class="CharAttribute1">Once
again, too, Borges marks himself out as an <i>anti-totalizing</i>
thinker. The dreamer’s attempt to make himself master creator of a human in its
entirety only reveals to him what he cannot know (his creation’s mind), and <i>what he knows he cannot know</i>. So too Borges’
own narratives create implied blindspots that we can never investigate but
whose blank existence we are tantalizingly aware of (the missing ‘originals’ behind
Borges’ stories, for instance); and so too ‘The Garden of Forking Paths’,
discussed above, aims to reveal all the discarded possibilities that hide
beneath each path chosen, but in doing so merely makes us aware of another
unrevealable and unknowable blindspot (what on earth would such a novel look
like? it is impossible to conceive). Revelation is always accompanied by
ignorance. We can never satisfy ourselves that we have achieved a totality of
knowledge, because we can always infer and be aware of the <i>fact</i> that something exists outside of our knowledge, even if the
thing itself and its qualities eludes us (a ‘known unknown’, in the words of
philosopher Donald Rumsfeld). Damn facticity again. We can deal with having
incomplete knowledge, but having then to be incomplete in our ignorance too is
just plain bad luck.</span><b><o:p></o:p></b></span></div>
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<span class="CharAttribute1"><b><span style="font-family: "georgia" , "times new roman" , serif;">Monstrous monuments<o:p></o:p></span></b></span></div>
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<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">I’ll
finish off by addressing the second discrepancy mentioned above: artefacts can
become separate from, and outlive, the intentions that created them and thus
seem anomalous. We’ve already seen this with the dreamt man. It also underpins
Borges’ sense of the uncanny and monstrous: the lottery of Babylon, the library
of Babel, the dodgy encyclopaedia (at first) are all huge and inhuman both in
their sheer magnitude but also in the sense that whatever intention created
them is inscrutable and alien to us. We have an uneasy sense of a category
confusion, of artefacts and institutions that are so alien, so anomalous as
human creations that we feel they are simultaneously inhuman too.<o:p></o:p></span></span></div>
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<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">The
reason for this, I think, is because we have lost sight of their human origins,
of the thoughts and intentions and faculties that made them. Once this happens,
once we can no longer conceive of meaning as something exchanged between fellow,
mutually comprehending humans, we become very lonely indeed.<o:p></o:p></span></span></div>
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<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">We
return, then, to Borges’ anti-realism and his insistence that we resist the
siren call of the merely concrete, the merely physical. Even though intention,
or intended meaningfulness is so often invisible, Borges asks us to fight to
salvage it. In a famous thought experiment, much beloved by philosophers of
literature, Borges hypothesizes an author, Pierre Menard, whose <i>magnum opus</i> is his rendering of <i>Don Quixote</i>. He doesn’t translate it,
however, or reimagine it – he rewrites it, word for word. It is therefore the
same work – same words, everything. And yet it can’t be – Cervantes’ <i>Quixote</i> was not a rewrite, it was an
original. Cervantes wrote in the contemporary language of his time, whereas
Menard is writing in now archaic golden-age Spanish. We are tauntingly aware
that different intentions, different relations to the world make Cervantes’
work and Menard’s work two separate things – but we must always feel
contradicted by the physical proof in front of us, which shows them to be the
same. The abiding dominance of the concrete, the materialistic squeezes out the
important human elements that made the concrete artefact in the first place.<o:p></o:p></span></span></div>
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<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">So
although our minds distort the world too much, or depart it altogether on wild
goose chases, they also sometimes leave too little a footprint and show their
workings insufficiently.<o:p></o:p></span></span></div>
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<span class="CharAttribute1"><b><span style="font-family: "georgia" , "times new roman" , serif;">Conclusion<o:p></o:p></span></b></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif;"><span class="CharAttribute1">Do the short stories then offer no more than a jumble of scepticism? I
don’t think so. They speak clearly against dehumanization, and for the precious
but fleeting value of the human. Words without minds that think them are not
human, and creations that lack creators are monstrous. In the first story, </span>‘Tlön, Uqbar, <i>Orbis Tertius</i>,’<span class="CharAttribute1"> the fake encyclopaedia stands for a debasement of the real, and leads
ultimately to the depravity of fascism. And it would be difficult to say that
the Babylonians are happy. Despite these admonitions, </span>there is
much playful joy in following the fallacious helter-skelters our minds can take
us on once they are decoupled from the real world.<span class="CharAttribute1"><o:p></o:p></span></span></div>
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<span class="CharAttribute1"><span style="font-family: "georgia" , "times new roman" , serif;">Borges presents us with challenges to the false certainties that arise
when we take the world for granted. He does not come up with definite answers,
but that is not the point – his purpose is to offer a style of fiction, of
speculative thought, that can set us on the road to finding some good premises from
which to start our thinking. The puzzles and paradoxes with which he torments
his reader are ultimately good medicine – inoculation against the debased false
certainties of fanaticism, against the siren call of materialism, and against anything
that tries to deny the wondrous weirdness and complexity of human minds. </span></span><o:p></o:p></div>
Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-36799513561671109282015-01-20T14:37:00.003+00:002015-01-21T01:59:33.130+00:00Egotism in academia<div class="separator" style="clear: both; text-align: center;">
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<span style="font-family: Georgia, 'Times New Roman', serif;">It's often said that academics are rather arrogant. </span><a href="http://www.theguardian.com/higher-education-network/2015/jan/05/philosophy-is-for-posh-white-boys-with-trust-funds-why-are-there-so-few-women" style="font-family: Georgia, 'Times New Roman', serif;" target="_blank">This article</a><span style="font-family: Georgia, 'Times New Roman', serif;"> certainly gives some telling examples, but I still don't know to what extent I agree with a broad-brush negative characterization — I've probably known too many pleasant, rather humane academics.</span><br>
<span style="font-family: Georgia, Times New Roman, serif;"><br></span>
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<span style="font-family: Georgia, Times New Roman, serif;">But there is one supreme virtue possessed by academics, which I think should always be cited in their defence — they are, on the whole, comfortable with people who are as smart as, or smarter than, them.</span><br>
<span style="font-family: Georgia, Times New Roman, serif;"><br></span>
<span style="font-family: Georgia, Times New Roman, serif;">Ok, yes, there's a huge amount of bitching and snidiness. But compared to other professions (including 'para-academic' ones such as lexicography), and to other parts of the educational profession, those in academia are much more likely to be unintimidated by talent and to embrace and nurture it. Academics may be petty, but they can also be big.</span><br>
<span style="font-family: Georgia, Times New Roman, serif;"><br></span>
<span style="font-family: Georgia, Times New Roman, serif;">But now back to the beginning — is this acceptance and nurturing of talent only possible because academics are so egotistical that they think no challenge threatens them? Perhaps academic egotism is a positive thing, a necessary ingredient in university teaching because without it the most capable students would inevitably have their prospects sabotaged by insecure, threatened professors.</span><br>
<span style="font-family: Georgia, Times New Roman, serif;"><br></span>
<span style="font-family: Georgia, Times New Roman, serif;">Or am I being naive, and </span><span style="font-family: Georgia, 'Times New Roman', serif;">insecure, threatened professors are the reality?</span>Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-2354586172495051742015-01-20T14:06:00.000+00:002015-01-20T14:45:35.735+00:00Blunt vs. Bryant<span style="font-family: Georgia, Times New Roman, serif;">Shadow cabinet minister Chris Bryant <a href="http://www.theguardian.com/music/2015/jan/19/james-bluny-classist-gimp-chris-bryant-diversity-privileged-arts" target="_blank">bemoaning</a> the renewed success of the public schoolboy in modern-day Britain:</span><br />
<blockquote class="tr_bq">
<span style="font-family: Georgia, Times New Roman, serif;">I am delighted that Eddie Redmayne won [a Golden Globe], but we can’t just have a culture dominated by Eddie Redmayne and James Blunt and their ilk. Where are the Albert Finneys and the Glenda Jacksons? They came through a meritocratic system.</span></blockquote>
<span style="font-family: Georgia, Times New Roman, serif;">To hazard a guess, I'd say the Alberts and Glendas are still with us, it's just that their ambitions have been neglected by a state education system that, through the best of intentions, has become ideologically committed to mediocrity.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Also, since when was Harrow then Sandhurst a sneaky backdoor into pop stardom?</span><br />
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<span style="font-family: Georgia, Times New Roman, serif;">It's an unpalatable thought, but what if Britain actually <i>is</i> fairly meritocratic, and this is exactly the reason why the public-schoolers are doing so well — they've been better educated and are consequently more successful. </span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">How do we make sure government, the top end of sport, and culture represent broader society? </span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">We could say — yes, well-educated old Etonians etc. largely <i>do </i>succeed in wider society through fair, meritocratic competition, but their becoming well-educated in the first place was un-meritocratic, because it came to down to having rich parents: so let's achieve meritocracy by banning private education.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">Problem with outlawing private education is that it means the state would have a monopoly on coming up with ideas for how to educate ourselves - on current evidence it is too unlikely those ideas would always (or regularly) be the best ones, and education is too important for close-mindedness. Think of a private school and one thinks of Harrow, but there are plenty of experimental private schools based on diverse educational theories.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">I'd rule out this illiberal solution, though would agree on the need to reform the overly lax tax rules.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">If a liberal democracy that values education therefore has to live with private schools, then what is the best way to cohabit? Positive discrimination in favour of state schoolers, or negative for public schoolers is unthinkable — if our two-tier society is bad and invidious why perpetuate it? Besides, we forget that meritocracy doesn't just mean the best candidate getting what they deserve — it also means our society gets what it deserves, which is the best-qualified and educated people doing the important jobs, whatever their background.</span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">The only way we can live with a private education sector, be a liberal democracy, <i>and</i> have a properly representative elite is for the state sector to compete with the private. Ok, in terms of cash — impossible. And let's rule out grammar schools for now as a partially failed experiment. </span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">That leaves institutional ethos — easily rejected by the materialist dogma of many on the left, but this is no sensible reason to neglect it. We would be silly to ignore the principals of successful independent schools when they stress the centrality of ethos in their success. Maybe 'ethics' would be a better term — what it is good that you do, what it is bad that you do. The universality of state education encourages the assumption that it is ethically neutral, but I don't think it is. </span><br />
<span style="font-family: Georgia, Times New Roman, serif;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif;">So here is a list of ethics I think state schools should propagate, but which were either absent or merely soft-pedalled at the state school I went to:</span><br />
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<ol>
<li><span style="font-family: Georgia, 'Times New Roman', serif;">It is good to be pushed, hard, to do worthwhile things;</span></li>
<li><span style="font-family: Georgia, 'Times New Roman', serif;">It is good to excel, even though others around you do not;</span></li>
<li><span style="font-family: Georgia, 'Times New Roman', serif;">It is good to be extraordinary;</span></li>
<li><span style="font-family: Georgia, 'Times New Roman', serif;">It is good to do difficult things.</span></li>
</ol>
Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com0tag:blogger.com,1999:blog-7082173774815417367.post-26196949773109562062015-01-16T23:07:00.000+00:002015-01-20T14:49:32.801+00:00Joe Sacco on Charlie Hebdo<span style="font-family: Georgia, Times New Roman, serif;">W</span><span style="font-family: Georgia, 'Times New Roman', serif;">hy so many plaudits for the piss-weak hand-wringing of </span><span style="font-family: Georgia, 'Times New Roman', serif;"><a href="http://www.theguardian.com/world/ng-interactive/2015/jan/09/joe-sacco-on-satire-a-response-to-the-attacks" target="_blank">Joe Sacco's response</a> to the Charlie Hebdo murders?</span><br />
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<span style="font-family: Georgia, 'Times New Roman', serif;">We certainly should 'try to think about why the world is the way it is' — in our politics, our science, our moral reasoning, and elsewhere. But not in satire, which is our set-aside space for anarchic mockery and subversion — isn't it? A mutually agreed breather from the obligation to reason </span><span style="font-family: Georgia, 'Times New Roman', serif;">seriously</span><span style="font-family: Georgia, 'Times New Roman', serif;"> </span><span style="font-family: Georgia, 'Times New Roman', serif;">about why the world is as it is, how it could be changed, etc.?</span><br />
<span style="font-family: Georgia, 'Times New Roman', serif;"><br /></span>
<span style="font-family: Georgia, 'Times New Roman', serif;">Sacco's answer to the Charlie Hebdo debate is to propose a duty to be morally and politically serious </span><span style="font-family: Georgia, 'Times New Roman', serif;">that</span><span style="font-family: Georgia, 'Times New Roman', serif;"> </span><span style="font-family: Georgia, 'Times New Roman', serif;">limits the freedom to be satirical and anarchic. Maybe Mr Sacco doesn't follow the news much — isn't that essentially the very proposition, violently expressed by Coulibaly and the Kouachi brothers, that kicked off this whole debate?</span><br />
<span style="font-family: Georgia, 'Times New Roman', serif;"><br /></span>
<span style="font-family: Georgia, 'Times New Roman', serif;">We should accommodate satire, he says, by leaving no room for it, by erasing it. This question-begging doesn't even resemble a useful solution to the problem. It should be disregarded.</span>Wild and whirling wordshttp://www.blogger.com/profile/09008065038496728607noreply@blogger.com3