Should the government repeal the Human Rights Act and replace it with a ‘British Bill of Rights’?

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. 

Introduction: 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]


First argument: 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]  

Counter-argument 1: 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 British, 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:

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]  

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. 

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] 

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:

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] 

Rather than an ‘ethical bottom line’, as Jack Straw called it, the HRA is perhaps better regarded as a raised bar.[11]   

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]  


Second argument: 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]

Counter-argument 2a: 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.

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 but not sufficient 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:

• 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.

• Life is sacrosanct because of something other than the law’s say-so – a society that thought otherwise would be in trouble. 

• 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.

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’.

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:

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]

Counter-argument 2b: The danger of legalism

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. 

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 guarantees’ to ‘the law grants these rights’. This would be repugnant: that the law protects my right to live does not mean that I am alive because the law deigns to grant it; that satirists can mock Parliamentarians is not because 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. 

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, cannot 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.

As we are generally not keen on paradoxes, we get round this one by saying that, actually, rights documents indeed are powerful and not 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. 

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?

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.

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]  

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:

1. preserve Parliamentary sovereignty and the separation of powers;
2. be a stable presence on the statute book, isolated from short-term political pressures;
3. resist legalism and constitutional fundamentalism;
4. remain symbiotically connected to the moral and cultural discourses that give life to the law.

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 reasoning 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]  
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]  

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:

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] 

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]  


Third argument: 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.

Counter-argument 3: 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. 
 

Notes

[1] ‘Protecting Human Rights in the UK’, https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf.

[2] See A Commission on a Bill of Rights (2012) 6.30-1.

[3] 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.

[4] On protection of fundamental rights as a basic principle of the rule of law see Bingham (2010) 

66ff.

[5] Commission on Bill of Rights (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.

[6] Obergefell v. Hodges 576 U.S.              (2015), http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf.

[7] See Commission on Bill of Rights (2012) 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.

[8] As, for instance, with Lord Rodgers misinterpretation of HRA sect. 2 as making ECtHR jurisprudence binding on UK courts. See Nicholas Phillips ‘Closed Material’, London Review of Books 17 April 2014, http://www.lrb.co.uk/v36/n08/nicholas-phillips/closed-material.

[9] 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 http://www.dominicgrieve.org.uk/news/why-human-rights-should-matter-conservatives).

[10] R v Secretary of State for the Home Department; Ex Parte Simms [2000] 2 AC 115 at 130.

[11] Hickman (2010) 2, 7-8, & 24.

[12] Discussed by Elliott and Quinn (2014) 304-5, 316-17.

[13] 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 Commission on Bill of Rights (2012).

[14] On lack of ‘ownership’ see A UK Bill of Rights? 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 http://news.bbc.co.uk/1/hi/uk_politics/6097634.stm).

[15] Bingham (2010) 116.

[16] 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 – Derbyshire County Council v Times Newspapers Ltd [1993] 2 WLR 449.

[17] See Hickman (2010) 13ff. on the development of public law in the UK by Lords Diplock, Scarman, and others. See also Commission 6.18-22; Bingham (2010) 72, 76.

[18] 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 [sic] was never likely to be a popular one.’

[19] The First Part of the Institutes of the Laws of England (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 Watkins (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 less living?

[20] See https://www.judiciary.gov.uk/judgments/ and http://www.scotland-judiciary.org.uk/24/944/Review-into-cameras-in-court. 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.

[21] Quoted by Bingham (2010) 67.

[22] 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.

[23] https://yougov.co.uk/news/2014/10/08/support-tory-human-rights-plans-falls-along-party-/. 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.

Bibliography

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. 

Bingham, T. (2010) The Rule of Law. Harmondsworth.

Elliott, C. & Quinn, F. (2014) English Legal System, 15th Ed. Harlow.

T. Hickman (2010) Public Law after the Human Rights Act. Oxford.

Decline of the left, part 6: Afterword

I hate to say I told you so, but I told you so. 

Decline of the left, part 5: Guilt by resemblance

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.

My previous post concerned the town of Ferguson, the scene of the death of Michael Brown. It argued that the commentators and supporters of the left failed to do what true friends to the people of Ferguson 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.

In this final post, I'm going to look in more detail at this phenomenon, which I call guilt by resemblance.

The fear of guilt by resemblance is a crucial policing tool of the modern left. See, for instance, those gimmicky online quizzes where players have to guess who said something: 

David Starkey or Enoch Powell?  

A men’s magazine or a rapist?  

Nigel Farage or Enoch Powell? 

The second of these, incredibly, is from a piece of seemingly respectable psychological research.

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.

You can probably guess my issue with this: if I, or anyone, can be denounced on the grounds that I merely sound 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.

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 thwart the revolution, is exactly the same debased entailment that tars the fan of a risqué pop song as an apologist for, and possible perpetrator of, rape.

The modern leftist, that is, has foolishly borrowed the depraved logic of the totalitarian in order to denounce those she anathematizes ideologically.

Consider that, for the anti-rape culture campaigner, certain statements are a slippery slope towards having incriminating words, intentions, and thoughts put into our mouths. 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?

This isn’t just wrong. It is shabby. No, it’s worse – it is a howling, blood-boiling disgrace.

It's extraordinary that it should need explicit statement at all, but (as I have said already) 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. 

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.

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.

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.

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 power 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.

Isn’t this a taster of how very bad, 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.

How on earth have we come to this pass, whereby progressives end up thinking like totalitarians – like bullies, oppressors, and bigots?

Problems with premises

Consider how badly put together, how badly engineered modern-leftist arguments consistently are – the modern leftist:

• consistently blunders into self-defeating arguments;
• counters the prejudice of the bigot with what is merely a different flavour of prejudice; 
• answers the problem of African-American exclusion by proposing merely another type of exclusion;
• doubts his own ability to distinguish discriminatory from merely discriminatory-seeming arguments (hence the refusal to criticize rioters); 
• is nevertheless happy to use this same vagueness as a means of condemning the merely discriminatory-seeming arguments of others.

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, caused by mere reactiveness – the modern leftist merely reacts 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.

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.

Consider the following argument, similar to the one made in my previous post concerning Ferguson:  

British nationalist B celebrates freedom of speech, rule of law, and democratic government purely because these are British values, and B thinks that British is best. 

I, however, celebrate freedom of speech, 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.

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 B and I start out. 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.

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. This is why, I suggest, the commenters on the Guardian’s D-Day piece behaved with such predictable ugliness: they thought couldn’t celebrate the fight against Fascism without also celebrating British jingoism, which they despise: they showed either unwillingness or complete inability to get at the underlying premises that entirely differentiate the former from the latter.

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:

• believes in race, gender, and sexuality as determining factors on the basis of which we should operate double standards; 
• believes in the validity of identity-based prejudice; 
• holds that our best defences against an unequal society are faith and self-chastisement, yet all the while ridiculing the religionist.

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.

The causes and the effects

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 Camille Paglia:

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.

‘Post-structuralism has destroyed two generations of graduate students’ – not at all an overstatement, as I have previously argued. 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.

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’.

There you go: a small illustration of how easy it is to come up with this rubbish.

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.

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.

That is one cause, as I see it – I have further thoughts on other causes, but they can wait. Now the effects. 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.

Take the blog post 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:

The notion that you can punish the legitimate winner of a free and fair election is disturbingly at odds with the basic ethics of democracy. 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.

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. 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.

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.

Decline of the left, part 4: Ferguson, Baltimore, and race

Since the previous post in this series it has become ever clearer that left-wing commentators are wise to the failings of the left that I have been describing. This article by Owen Jones, as well as this one, 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.

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, as here. From now on, then, ‘modern left’ will refer quite specifically to the identity-political left ). 

Test case no.3: the Ferguson disturbances 

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.

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.

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 narrowly parochial, a mere intra-ethnic shorthand.

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.

Now take the modern left’s response to the unrest in Ferguson, Missouri provoked by the shooting of Michael Brown. The recent events in Baltimore 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 Department of Justice report on the killing in as much detail as I could, and as a result my basic opinion is:

• that the shooting of Michael Brown was regrettable but justified;
• that the Ferguson police are corrupt and racist, and that Ferguson’s black community was therefore justified in its anger;
• 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).

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.

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. 

Granted, yes?

What is the best way, then, of making an economy and a criminal-justice system fairer – consensual politics, or violent coercion? 

We’d all go for the former, I hope. 

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? 

Unquestionably the latter. 

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?

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.

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?

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, as we've seen, disproportionate accusation is a modern-left forte).

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?

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?

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. 

If the exclusion of black Americans is bad, how could we possibly remedy that exclusion by creating, as the left do, another 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?

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. Isn’t the modern leftist making race as dangerously determinative as the racist ever did – making Ferguson’s citizens black first and citizens second?

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. 

Here, I think, lies the rub: if 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.

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.

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.

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 next and final entry in this series.

ISIS: Why Obama fiddles

Yes more depressing news from the Middle East with the ISIS conquest of Ramadi in Iraq and of Palmyra in Syria. 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 during a night raid.

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.

Here, briefly, are four possible reasons for why the Obama administration is fiddling while the Middle East burns. They get progressively more worrying.

1. Ideological shift

The Obama administration has inherited from its predecessor a preoccupation with special forces troops as a magic wand. As I argued previously, 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.

2. Obama is a vacillator

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.

3. The situation is intractable

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 (‘you break it, you own it’), Obama still can’t do anything because yet another 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 propaganda war that the bad guys are winning.

4. The situation might be solvable, but the US is incapable

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.

According to this terrifying interpretation, the modern US is structurally unable, or ill-suited, to winning wars.

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 capture the imagination, 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.

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?

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 Powell doctrine 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.

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.

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.

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.

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.

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.

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.

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?

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. Ash Carter 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.

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.