How can a good man keep the wolf from the door?

Twenty-two years ago today, Peter Bellamy took his own life. He was 47. His discography includes three albums made with the seminal vocal group The Young Tradition and (at a rough count) seventeen solo albums, some only released as privately-produced cassettes. Most of his material was traditional; some consisted of his own settings of poetry, mostly by Rudyard Kipling; some was self-composed. One of his outstanding achievements was the Transports, a self-composed “ballad opera” written in traditional styles and telling the true story of a couple transported to Australia aboard the First Fleet in 1787. He worked with Martin Carthy, Nic Jones, the Watersons, Tony Rose, June Tabor, Dave Swarbrick, Shirley and Dolly Collins… basically, if you can think of a British folkie active in the 70s and 80s, the chances are that he worked with them at some point.

At the same time, Bellamy had a fierce commitment to his own vision – wherever it was leading him at any given time – and a reputation for independence bordering on self-imposed isolation. What his politics were nobody seems quite sure, but he had little time for the Communism of many of the 50s and 60s revivalists, or for the more woolly Guardian-reader liberalism which characterised the later folk scene. Traditional songs were his passion, and if (as it turned out) there were rather few traditional songs about fomenting revolution, going on strike or hunt sabbing, it didn’t bother him; he would sing what was there, even if it was about less right-on topics such as fox-hunting, fighting for England’s glory and loyalty to the boss. Take the political wrong notes this attitude produced, add his fascination with Kipling (the great poet of Victorian Empire), his spiky personality and his insistence on accompanying himself on concertina rather than the more ‘normal’ acoustic guitar, and it’s not entirely surprising that the 1980s – the ebb tide of the folk revival – weren’t kind to him.

By the end of the decade it seems as if the folk world had decided to leave him to it. At around this time of year a few years ago, his friend Michael Grosvenor Myer gave some details of his last days in a thread on Mudcat, from which I’ll quote a couple of lines here:

I remember his once showing me an almost empty forthcoming gigs diary, and saying words to the effect that “I did The Transports, everyone loved and respected it – and from that moment my bookings practically ceased and my career went phhhttt!” … a few days before he died, he spent the entire evening playing right back through all his records, listening carefully and as best he could objectively, and said at the end, “Well, I AM good! What the hell has gone wrong?!”

Was he good? He was an inspired songwriter, a superb interpreter of traditional songs and a unique, unforgettable singer. Yes, he was good. I don’t know what the hell went wrong, but twenty years on folkies up and down the country, from Bellowhead and the Young ‘Uns on down, are paying him the homage of listening to his music and singing his songs. If he’d hung on a few years he could have been massive. How he would have hated that.

Heffle Cuckoo Fair (Kipling/Bellamy)

Minesweepers (Kipling/Bellamy)

The Innocent Hare (traditional)

I once lived in service (Bellamy, arr. Dolly Collins; sung by Norma Waterson)

The fox jumps over the parson’s gate (traditional)

Death is not the end (Dylan)

The most cruel

Growing up in the 1970s, it’s hard to overstate how important the cause of Chile was. 11th September 1973 was, I suppose, a “naked lunch” moment – a frozen moment when everyone sees what is on the end of every fork; we knew who was on whose side, and what they were willing to do.

Joan Jara:

on the 18th of September … a young man came to my house, said, “Please, I need to talk to you. I’m a friend. I’ve been working in the city morgue. I’m afraid to tell you that Victor’s body has been recognized,” because it was a well-known — his was a well-known face. And he said, “You must come with me and claim his body; otherwise, they will put him in a common grave, and he will disappear.”

So then I accompanied this young man to the city morgue. We entered by a side entrance. I saw the hundreds of bodies, literally hundreds of bodies, that were high piled up in what was actually the parking place, I think, of the morgue. And I had to look for Victor’s body among a long line in the offices of the city morgue, recognized him. I saw what had happened to him. I saw the bullet wounds. I saw the state of his body.

And I consider myself one of the lucky ones, in the sense that I had to face at that moment what had happened to Victor, and I could give my testimony with all the force of what I felt in that moment, and not that horror, which is much worse, of never knowing what happened to your loved one, as what happened to so many families, so many women, who have spent these 40 years looking for their loved ones who were made to disappear.

But the real significance of 11th September wasn’t the treachery or the horrors of the coup itself, or the years of brutal misery that followed. The coup mattered because of what it destroyed: the beginnings of a radical social experiment, bringing millions of people a chance of a decent life, some power over their own lives, a bit of confidence in the future. The sheer joy of that period has never been captured better than in this song (which I’ve cited before but not linked). Listen to the middle eight – it’s as if Victor Jara’s saying, you get it now? being alive is good, being in love is great, but this – this is happiness! this is how we were meant to live!

Forty years after that hope was destroyed, let’s celebrate it. (Translation in comments.)

Maria,
abre la ventana
y deja que el sol alumbre
por todos los rincones
de tu casa.

Maria,
mira hacia fuera
nuestra vida no ha sido hecha
para rodearla de sombras
y tristezas.

Maria, ya ves
no basta nacer, crecer, amar,
para encontrar la felicidad.

Pasó lo mas cruel,
ahora tus ojos se llenan de luz
y tus manos de miel

Maria…

Tu risa brota como la mañana,
brota en el jardín
Maria…

True crime

The government’s consultation on “Transforming Legal Aid” closes today (4th June). I’d urge everyone with any interest in the criminal law to take a few minutes to reply to it, especially if you’ve got some (any) relevant organisational affiliation.

There is also a petition on 38 Degrees, created by Maura McGowan QC:

We are calling on the Ministry of Justice to reconsider its plans to introduce Price Competitive Tendering for criminal legal aid. We believe that people should be entitled to choose a lawyer to represent them based on quality, not just be allocated one on the basis of whoever can do the job for the lowest price.

As the Chairman of the Bar Council, I know that we have a legal system which is respected all over the world. These proposals will damage that beyond repair and hit the diversity of the legal profession hard. Cut price justice is no justice at all.

At the time of writing it has 45,529 signatures. Add yours.

There is a petition on the government’s own epetitions Web site, which currently has 75,469 signatures; if it reaches 100,000 it will be debated in Parliament. It’s short and to the point. It reads:

The MOJ should not proceed with their plans to reduce access to justice by depriving citizens of legal aid or the right to representation by the Solicitor of their choice.

Sign it.

Here’s why. Continue reading

You’ve got to have the money to buy it

Let’s talk about legal aid.

I think it’s reasonable to say that the government isn’t keen on legal aid; many restrictions and obstacles have been introduced to the legal aid scene in the last few years, including an element of means-testing. It’s still broadly the case that, if you’re taken to court and you face a prison sentence (or equally serious penalty) if found guilty, you’re entitled to legal advice free of charge. Moreover, you’re entitled to choose your own representation. You may not choose to use this right or be able to exercise it effectively, but for many defendants this is a godsend. For example, if (far from hypothetically) you’re up on a public order charge arising from a demonstration, and you happen to know that a particular law firm has a good record in holding the police and the CPS to account in similar cases, you have the right to give them the call. These rights extend to serving prisoners and non-citizens such as asylum seekers, although naturally these small groups of people only supply a small proportion of the total legal aid caseload.

The government is currently bringing forward proposals to transform legal aid for criminal cases. This isn’t hyperbole, or if it is it’s not mine: the consultation document is actually called “Transforming Legal Aid“.

The transformation that the Ministry of Justice have in mind has two objectives. Firstly, costs would be cut. The consultation document hammers on the cost-cutting drum. The proposals in the consultation document fall into two categories: those with a justification on plausible financial grounds (disregarding their impact on the quality of service) and those with a vague handwave in the direction of a possible justification on financial grounds.

However, the sums involved are, in context, trivial: the estimated total annual saving is £220 million, or just under a fifth of one per cent of public sector net borrowing for the last financial year. This suggests that the second, less overtly stated, objective may be the main motivation: that the goal is not to produce a cheaper criminal legal aid system but a radically different one. The proposals would introduce competitive tendering for the right to offer legal aid services in particular areas, corresponding roughly to the forty-odd police force areas; no more than four firms would be accredited in any one area. (Correction: the number of firms accredited for each area is pre-determined, but the numbers vary from four up to a maximum of 38 (London West and Central). Fifteen of the proposed 42 areas have been allocated the minimum of four.) Clients would be assigned to lawyers rather than being able to choose them, and would have to stay with the brief they’d been given throughout the case. The proposals are designed not only to create a cost-driven market in legal aid provision but to open it up to new entrants, corporations offering a standardised and streamlined legal representation service; the Eddie Stobart haulage firm has already expressed an interest. It would still be possible to pay for legal representation of one’s choice; indeed, defendants with a high enough disposable income would be debarred from legal aid, positively guaranteeing the creation of a two-tier system. There’s more, and worse.

At an open meeting, Elizabeth Gibby of the Ministry of Justice was fazed by one particularly difficult question:

“Can you remind me of the section in the consultation paper which deals with the interests of the user of the service,” a solicitor from Oxford asked politely.

“I’m sorry; I don’t quite understand what you are saying,” Gibby replied after a pause.

“Can you refer me to the section of the paper that deals with the quality of the service provided and the effect on the quality of these proposals,” the solicitor asked again.

Gibby and her team of officials still seemed lost for words. Eventually, she asked the solicitor to respond to the consultation paper if he didn’t think that quality had been adequately covered in it.

There is nothing in the consultation paper about the quality of the service. Or to put it another way, the consultation is all about the quality of the service – it’s all about replacing the existing service with a lower-quality substitute. This matters, for very much the same reason as it would matter if we were replacing GPs or teachers with low-waged employees of profit-making companies. We know it’s a bad thing when people get the wrong advice from a banker or an estate agent or a car salesman, most of all if the person giving the advice profits from it; if there were a government scheme to make it easier for financial advisors to recommend the wrong product we’d all be up in arms. But bad legal advice is much, much worse; someone who gets the wrong legal advice can end up being named as a paedophile, or burdened with a conviction for fraud that will never become spent, or behind bars for murder, without having committed any of those crimes. (These real-life examples are from A Barrister’s Wife, a new blog which I strongly recommend.) And the proposed reforms will make bad legal advice much, much more likely.

Just to be clear, I am not suggesting that standardising legal aid would drive out professionalism, or that the only decent lawyers are those who can charge huge fees. The legal aid budget is already administered fairly strictly – any legal aid criminal defence lawyer motivated by money is in the wrong branch of the business. The problem with cost pressure and standardisation is much more insidious, and rests on a little-known fact about the criminal justice system – little-known to those of us outside the system, that is; for practitioners it’s the most open of secrets. This is the fact that nobody wants a trial. For the police, taking a case to court is laborious and time-consuming; what’s worse, it creates opportunities for the criminal (as they see it) to walk free, and for all their hard work to be wasted. The CPS are duty bound to chuck out the weak cases and those which it’s not in the public interest to pursue; when they’ve identified what they see as good, strong cases, the last thing they want is to risk an acquittal. Lawyers might be thought to have more of an interest in the courtroom show going on, but their position also makes them all the more aware of what a chancy business it can be – and their workload makes quick resolution a high priority. The answer to all these problems is a guilty plea. For the police and the CPS, a guilty plea means the job’s done: the criminal’s been charged, the criminal’s owned up, the criminal’s been sentenced. Defence lawyers want what’s in their client’s best interests, but what that means in practice is that they want to aim for – and they want their client to aim for – the best result they can realistically hope to achieve. In many cases, quite irrespective of questions of factual guilt, this may well mean advising a guilty plea: someone who is likely to be found guilty in a contested trial will be well advised to plead Guilty and gain a reduced sentence. At the same time, a guilty plea by the client will mean that the lawyer can save some time and get on to the next case, which will always be a consideration if time is limited – and time generally is limited when money is limited. Realistically, a system with cut-price, competitive-tendered, corporatised legal aid will be a system where much less time is spent on case preparation, much less scrutiny is given to materials that may hold vital evidence, and many more suspects and defendants are persuaded to plead Guilty – irrespective of their factual guilt or innocence. In 2000 Andrew Sanders and Richard Young described the criminal justice system as being characterised by “the mass production of guilty pleas”; if these reforms go through, they (and we) ain’t seen nothing yet.

Update 30/5/13: more on this from Francis FitzGibbon in the LRB, drawing out some unpleasant aspects of the proposals which I haven’t focused on (there are plenty to go round). There are many more links here.

These reforms are an assault on the legal profession and on everyone’s access to justice; they have no ethical justification and only the flimsiest justification in cost terms. They need to be stopped. Please sign the epetitions Save UK Justice petition; there’s also one from 38 Degrees. If you’ve got half an hour to spare, and especially if you’ve got anything you can cite as an organisational affiliation, please complete the Ministry of Justice’s online survey. Over the fold are some highlights from my answers. Continue reading

That would be an ecumenical matter

Small personal update. I’ve just spent two days on a bid-writing retreat, organised to support people working in Humanities departments at my university – criminologists (like me), sociologists, linguists, historians, geographers and a lawyer or two. ‘Retreat’ was the operative word – it was a very quiet two days, rather solitary in fact. This was very much thanks to the venue, a huge Victorian house run since the mid-70s by a Christian community. One door had a sign saying that the room beyond was reserved for quiet meditation; it turned out to be a large, light and well-furnished living room, in which I could have meditated quietly for hours or more. The atmosphere was scarcely any less tranquil when the room had been occupied by five people staring at laptops.

I had a bit of trouble with my bid. I got a permanent position in 2010 and applied myself fairly concentratedly to teaching for the next couple of years. Now that I’ve cleared a bit of time and headspace for research, I keep finding I’ve had a brilliant idea which somebody else has already researched or written about – very often within the last two years, infuriatingly enough. (Or, most infuriatingly of all, a brilliant idea which has superficial but obvious similarities to part of a research project that somebody else has carried out within the last couple of years. Not that I’m bitter.) Anyway, I ended up essentially ripping up my original idea and starting again – a productive but difficult process which can’t really be done while sitting in front of a laptop. Standing up is involved – pacing, ideally; there is generally speech, also, or muttering at the very least.

In search of a room to pace and mutter, I found myself in a sunroom on the first floor. I did some quite useful rethinking, then looked around and noticed the books. I’d seen a couple of bookcases around the place and taken a vague bibliophilic interest in the religious texts in them, but the books in the sunroom were something else. There were books in that room I hadn’t seen in five years – ten, even: books that I’d last seen on my parents’ bookshelves. (My father died in 2001, my mother in 2006; they were both pillars of the local church and had been all my life.) Then I noticed the chairs – two in particular out of the many armchairs in that one room (that house was extraordinarily well upholstered). They were old-style high-backed armchairs, well-used, in covers with a light-coloured William Morris-ish floral pattern. I’d seen chairs covered with that particular material before – specifically, I’d seen them in my parents’ living room. When we’d set about clearing the house there had been some discussion with a Christian group, although it didn’t come to anything (fire regulations); I wondered for a moment if some less discriminating charity had come back later and scooped up chairs and books and all. They would then need to have transported them to the other end of the country, though, which I realised was unlikely. It was an odd moment. At the end of the first chapter of Kazuo Ishiguro’s The unconsoled (very minor spoiler), the narrator looks around his Central European hotel room and is reminded momentarily of his boyhood bedroom, before being struck by the realisation that it is his boyhood bedroom – the room he remembers so fondly has been rebuilt in this distant city, especially for him. This was a bit too close to that scene for comfort.

But of course (I reminded myself) there are lots of armchairs out there covered with Morris-esque florals. And, when I really looked, it turned out that most of the books I’d recognised actually weren’t books I’d seen on my parents’ bookshelves – not within the last ten years, at any rate. They were books, and authors, like these:

Michel Quoist
Teilhard de Chardin (The Phenomenon of Man)
Paul Tillich (The Courage to Be)
Don Cupitt
Rollo May’s Love and Will
The Truth of God Incarnate (this stood out a bit; it was written as a riposte to The Myth of ditto, which would have fitted much better but wasn’t there)
Bias to the Poor
Colin Morris (Unyoung, Uncoloured, Unpoor)
The ‘Honest to God’ Debate (although not John Robinson’s Honest to God itself)
The New Inquisition (a critical commentary on the excommunication of Hans Küng)
a book taking a positive view of Taizé
a book taking a positive view of Pentecostalism

And now the trapdoor of memory really opened. Never mind ten years, these were books I hadn’t seen in thirty years or more; many were books I hadn’t even thought of in thirty years. They were still instantly familiar: they gave me the same kind of jolt of recognition that you get when you dream of meeting someone who’s died – “why did I think I’d forgotten you?”. (Even as I write it I’m struck by how eerie the simile is, but it is apt. Sunt lacrimae rerum et mentem mortalia tangunt, and I think books are particularly rich in them.) Some of these were books that my parents had had in the house where I grew up, and turned out when they moved to Brighton in the mid-1980s; some were books that had been on the lending shelf in our local church, or on the freely-lent-from bookshelves in the Rectory, where the Rector’s wife used to keep open house for artists, musicians and local kids.

In short, as I looked around that room I was breathing the air of a certain kind of church in the 1970s (where ‘church’ means the community more than the building). I hadn’t realised how much I missed it. As well as being ecumenical as regards other Christians, being a Christian in a church like this meant being non-literalistic and generally non-doctrinaire on the Christian story itself. (When David Jenkins said that the Resurrection was “more than a conjuring trick with bones”, he was very much talking our language: as if to say, we’ll concede the flesh-and-blood resurrection if that means we can talk about what the Resurrection actually means. Shame it didn’t come across like that.) It meant not believing that you, or your church, had all the answers, or that anybody did (apart from God); it meant not worrying too much about being saved but believing that there was work to be done in this life (in the words of the Christian Aid motto, “We believe in life before death”). More specifically, it meant taking Jesus seriously when he talked about the eye of the needle and giving away your coat and the sheep and the goats. The Christians I met when I went away to university were all about Biblical literalism and accepting Jesus as your personal saviour; it was like going from seminars on number theory to being drilled in multiplication tables, badly. I never really went back to the church after that; I visited my parents’ new church in Brighton a few times and got to know the vicar (he preferred ‘priest’), but it wasn’t the same kind of church – higher, quieter, more doctrinally orthodox, less radical politically.

All of this is, of course, rather a long time ago; when you’re looking back at the age of 52, the people you had around you in your teens are often not there any more. Around 1979, the Rector moved on and was replaced by a new Rector (who didn’t much hold with the intellectual stuff and certainly didn’t hold with the ‘open house’ thing). Around 1984, my parents moved to Brighton. In the 1990s, the Rector died (fairly young, unexpectedly), and the new Rector retired (I don’t know who replaced him). The years since 2000 have seen the deaths of my father, the vicar in Brighton (who also died young and unexpectedly), my mother and the Rector’s widow. (My entire academic career to date has taken place in the same period, and most of it since my mother died – a disjuncture in time which made it particularly poignant to be faced by those books in that setting.) It’s as if the books had outlived their readers. Michel Quoist and Teilhard, Honest to God and Unyoung, Uncoloured, Unpoor: names like these make up a picture, for me, but it’s not a picture I can easily check out with anyone else. Memory can be lonely, even when it’s supported by tangible things; perhaps especially then. Maybe that’s another, not too strained, reading of sunt lacrimae rerum – “these are the tears of things”: tears which the things keep to themselves until somebody strikes the rock and draws them out.

All this in a few minutes – it was a dense experience as well as an odd one – in between pacing and muttering. As for my bid, having abandoned something about subjective experiences of procedural justice, I came away with an idea about subjective experiences of the rule of law – much more exciting. (It actually is much more exciting as far as I’m concerned, which hopefully will make for a more persuasive bid; I should certainly be able to dedicate more of myself to it.) It would make a better story if I said I would now be conducting research on the inter-generational construction of non-denominational religious identities, or something, but reality is obdurate. Besides, I need to keep something for the blog.

2/2/43

STALINGRAD (Peter Blackman)

Hushed was the world
And oh, dark agony that suspense shook upon us
While hate came flooding o’er your wide savannas
Plunging pestilence against you -
All that stood to state: “Where men meet
There meets one human race!”

Therefore did men from Moscow to the Arctic
Rounding Vladivostok to the South where Kazbek lifts its peak
Still work and working waited news of Stalingrad
And from Cape to white Sahara
Men asked news of Stalingrad
Town and village waited what had come of Stalingrad
The tom-tom beat across thick forest
While every evening at Palava
Old men told of Stalingrad
The gauchos caught the pampas whisper
The windswept hope of Stalingrad
And in the far Canadian north
Trappers left their baiting for the latest out of Stalingrad
In the factories and coal fields
Each shift waited what last had come from Stalingrad
While statesmen searched the dispatch boxes
What they brought of Stalingrad
And women stopped at house work
Held their children close to hear
What was afoot at Stalingrad
For well men knew that there
A thousand years was thrown the fate of the peoples
Stalingrad, oh star of glory
Star of hope, oh star of flame

Oh what a midwife for this glory
Take for the pattern Pavlov and his men
A soviet soldier and his nine companions
Who full seven weeks sleepless by night and day
Fought nor gave ground
They knew that with them lay
That where men meet should meet one human race

Carpenters who had built houses
Wanted only to build more
Painters who still painted pictures
Wanted only to paint more
Men who sang life strong in laughter
Wanted only to sing more
Men who planted wheat and cotton
Wanted only to plant more
Men who set the years in freedom
Sure they would be slaves no more
They spoke peace to their neighbours in tilling
For in peace they would eat their bread
Uzbeks, Tatars, Letts, Ukranians
Russians, Muscovites, Armenians
Who ringed forests wide around arctic
Brought sands to blossom, tundras dressed for spring
These kept faith in Stalin’s town
We may not weep for those who silent now rest here
Garland these graves
These lives have garlanded all our remaining days with hope
Stalingrad, oh star of glory
Star of hope, here spread your flame

Now when news broke that Stalingrad
Still lives upon the banks of Volga
That Stalingrad was still a Soviet town
Then the turner flung his lathe light as a bird
And the gaucho spread his riot in the pampas
For this news of Stalingrad
The tom-tom beat wild madness
When the elders brought Palava these tidings out of Stalingrad
The English housewife stopped her housework
Held her child close and cried aloud
Now all men will be free!
And from Good Hope, black miners answered
This will help us to be free!
In the prison camps of Belsen
Sick men rounded from their guards
Now life was certain
Soon all men would be free
New light broke upon Africa
New strength for her peoples
New trength poured upon Asia
New hope for her peoples
America dreamed new dreams
From the strength of her peoples
New men arose in Europe
New force for her peoples
Once more they stand these men
At lathe and spindle
To recreate their hours and each new day
Bid houses rise once more in Soviet country
Men ring forests wide round arctic
Move rivers into deserts
And with high courage
Breed new generations
For still the land is theirs
Uzbeks, Tatars, Letts, Armenians
Caucasians, Muscovites, Crimeans
Still they speak peace to their neighbours at tilling
To all the wide world
And men come near to listen
Find by that day of Stalingrad
That this voice is theirs

Then Red Star spread your flame upon me
For in your flame is earnest of my freedom
Now may I rendezvous with the world
Now may I join man’s wide-flung diversity
For Stalingrad is still a Soviet town

Thanks to Shuggy for the reminder.

What’s the life of a man? (5/5)

In this post I’m moving away from A Debate over Rights to develop some thoughts inspired by a couple of papers by John Gardner. I’m not going far from the book, though – the first section of this post is relevant to the question of how we conceptualise rights, while the second relates to the question of the morality of law (which two of the book’s authors have been debating for some time).

1. Oh you shouldn’t do that

The opening paragraph of John Gardner’s 1996 paper ‘Discrimination as Injustice’ makes an interesting claim about torture – the wrongness of torture, in particular.

Reasons of justice are reasons for or against altering someone’s relative position. The word ‘relative’ is of the essence here. One may have reasons to alter someone’s position which do not make any essential reference to anyone else’s position. For example, the fact that a prisoner is being tortured is reason enough by itself to write letters of protest, with the aim of improving the prisoner’s treatment. Torture is inhumane. But isn’t torture also unjust? Doesn’t one also have a reason of justice to protest? Perhaps. As part of one’s protest, one might relate the position of the torture victim to the position of other people (other prisoners, people of different political views, the torturers themselves, the torture victim’s victims, the government, etc). In that case one may be trying to give a reason of justice for the torture to desist. It may buttress the reason of humanity. But of course it may also fail to do so. The authorities inflicting the torture may accurately reply, in some cases, that they are inflicting it with impeccable justice. Yet still, on grounds of its inhumanity, the torture should cease, and the protests should go on if it does not.

Gardner returned to this point more recently, in his 2011 paper ‘What is tort law for? Part 1. The place of corrective justice’.

Norms of justice are moral norms of a distinctive type. They are norms for tackling allocative moral questions, questions about who is to get how much of what. Some people think of all moral questions, or at least all moral questions relevant to politics and law, as allocative. But that is a mistake. As a rule, allocative questions are forced upon us only when people make competing claims to assignable goods. Many morally significant goods, including many relevant to politics and law, are either not competed for or not assignable. They include goods such as living in a peaceful world and not being tortured. … Of course it does not follow that there are no questions of justice that bear on the resort to torture or on the quest for a peaceful world. The point is only that many moral questions about the resort to torture and the quest for a peaceful world are not questions of justice. If, for example, we say of someone who was tortured by the secret police that her treatment was unjust, she might well say, if her moral sensitivity has been left intact, that this misses the point and marginalizes her grievance. She is not complaining that she was the wrong person to be picked out for torture, that she was a victim of some kind of misallocation by the secret police, that she of all people should not have been tortured. She is complaining that torture should not have been used at all, against anyone. Her complaint is one of barbarity, never mind any incidental injustices involved in it.

Torture is inhumane or barbaric – there are other words we could use, such as ‘degrading’ or ‘brutalising’; the core meaning has to do with attacking or invading another person’s humanity or personhood. Morally, it should stop, both universally and in any given case – but it is not, of itself, unjust. The moral question raised by torture isn’t a question of allocating it justly. One distribution of torture may be prima facie less just than another – the torture of randomly-stopped motorists would arouse more outrage than the torture of convicted rapists – but the less unjust distribution is not less immoral. A regime which reserved torture for people found guilty of heinous crimes would still be morally repugnant. Any torture – for anyone – is bad torture; in an absolute sense, any torture – for anyone – is as bad as any other torture.

Gardner sets torture alongside position-relative justice, and the freely competing subjects of law-governed society, to make a point about the limits of allocative justice. No distribution of torture (or of absolute poverty, polluted air, reduced life-expectancy, etc) is more just than any other. This is both because torture is not a good to be appropriately allocated and, more importantly, because the absence of torture is not an assignable good and hence not subject to constraints of scarcity. The question of who should be exposed to torture, instead of the current victim, doesn’t arise. There is no reason, in principle, why there should not be enough non-torture for everyone – and, here and now, it will always be better if our actions do not add any more people to those already suffering it.

But there’s a bit more going on here than that. There are any many ills whose absence is not an assignable good. To put it another way, there are any number of areas in which life could in principle be made better for everyone, or (to put it in less ambitious terms) where making life better for one person doesn’t require making it worse for another: health, clean air, peace, Pettit’s ‘dominion’ (a condition of resilient non-intererference’). Depriving someone of a non-assignable good is morally wrong, without necessarily being unjust. Allocative thinking in a negative form may well be involved in the infliction of such an ill: it may be motivated precisely by the desire to improve one’s own relative position at the expense of the victim. However, allocative questions do not have to be involved in their rectification: there is in principle no shortage of clean air, so the harm of air pollution is not rectified by ensuring that the air the company directors have to breathe is equally polluted.

Actions of this type are, by definition, characterised by a lack of respect for the equal entitlements of others and ourselves. Since they don’t profit the person carrying them out (also by definition), they tend to have a character of gratuitous or vindictive malice. The definition does not, however, imply that such acts are all inhumane or barbaric. If I jammed my neighbour’s TV reception so that they were unable to receive BBC 4, this would certainly be a maliciously cruel act, but it would be a stretch to classify it as barbarity. Indeed, much of what tends to fall under the heading of anti-social behaviour consists precisely of the deliberate or reckless deprivation of others of non-assignable goods – goods like the ability to sleep undisturbed by noise or to walk to the shops unperturbed by vandalism. Depriving others of non-assignable goods is a bad thing to do, and there is no situation in which we should not, morally, strive to do less of it – but it is not generally barbaric or inhumane.

Obviously torture makes a much better example for Gardner’s purposes than anti-social behaviour, both because it’s more extreme and because it’s commonly carried out by state authorities rather than by next-door neighbours. But I think the use of torture as an example also points to a different argument about justice and moral wrongs. Consider the first sentence quoted above: “Reasons of justice are reasons for or against altering someone’s relative position.” Norms of justice, Gardner argues in the second extract, are appropriate for tackling those questions which we face “when people make competing claims to assignable goods”. There’s a fundamental concept of personhood lurking here: a person, we can infer, is someone whose position (however defined) can be measured relative to the positions of other people; someone who can successfully claim assignable goods; someone whose self-interested claims can compete with those of other people; and someone whose disputes with other people can be adjudicated, and whose relative position can be altered, through the process of law, in other words by applying public norms using socially recognised procedures. And – at the risk of sewing a shirt onto a button – a law-governed society is a society composed of such individuals; and when we say ‘law’, we mean the kind of law through which such a society, and such individuals, can govern themselves. Clearly, the terms Gardner used would not work well in a feudally-ordered society, or a society run along religiously-validated caste lines, or the small-c communist society which was to follow the withering-away of the socialist state. We are talking about a society composed of formally equal individuals, differently endowed with personal resources, but each capable of making claims to assignable goods; entitled to expect that those claims will be respected; and entitled to attempt to vindicate them through the law.

We can see how this model of personhood relates to an allocative model of justice by looking at some scenarios. If my neighbour encroaches on my back garden, I may sue him and let the courts adjudicate our competing claims to the assignable good behind my house. If he takes our dispute personally and steals my property or assaults me, justice is involved in a different sense. Restitution will certainly be required, bringing allocative justice into play; however, my neighbour is also transgressing in a more serious way, improving his relative position by socially disallowed means. Theft and personal violence can be seen as ways of gaining an unfair advantage or nobbling the competition. (Gardner also suggests that criminal justice is allocative in the sense that it turns on the correct allocation of the status of criminal, which seems valid if rather ingenious.)

What about if my neighbour gets his revenge by a more indirect route, swearing at me in the street or disturbing my rest with loud music (or jamming my BBC 4 signal)? In such a case, given that the good in question is non-assignable, justice in Gardner’s terms may not be involved. Even so, the courts are likely to take the view that my entitlement to a non-assignable good has been needlessly infringed. (Not that this is a simple proposition, as we can see if we remember Hohfeld. If I am entitled to quiet nights – and why should I not be? there is, in principle, no shortage – does this mean that I hold a privilege as against all my neighbours, with a correlative duty on each of their parts not to disturb my rest? Can this be generalised, to cover mutual obligations among neighbours and entitlements to other forms of domestic tranquillity? I think this would be very problematic. Make these duty/privilege relationships unwaivable and everyone involved would be encumbered with a vast array of duties to abstain from potentially disturbing behaviours. Make them waivable, on the other hand, and the effect would be to destroy the universality apparently offered by the discourse of rights: all we would do would be to translate different individuals’ widely varying levels of entitlement and grievance into the language of waived and unwaived rights.)

Setting these broader considerations aside, the main point here is that deliberate deprivation of a non-assignable good can be grasped in terms of (allocative) justice, essentially by assimilating it to the ‘unfair advantage’ model associated with criminal justice. Indeed, we could rework the ‘unfair advantage’ model itself in terms of the deprivation of a non-assignable good. Laws criminalising physical violence, for instance, can be seen as protecting the non-assignable good of bodily integrity. In terms of acquisitive crime, if individuals A, B and C are all planning to bid for a valuable object at an auction, but are prevented from doing so when I steal it, what I have deprived them of is precisely the non-assignable good of a fair competition. A similar argument could be developed for the theft of an article on sale, or (less directly) of something in private possession. (We can see here, incidentally, how far removed the principles of allocative justice are from any redistributive model of social justice; in allocative terms, mere ownership of a resource at a given point cannot be unjust. Allocative justice and social justice must always be in tension, this side of the revolution.)

The principle here is that the autonomous, self-interested individuals on which our legal model is predicated need – and hence are entitled to – certain non-allocative goods if they are to play their competitive, law-governed part in society. One such good is the rule of law itself; others are bodily integrity and property rights. We can extend this model of entitlement – and hence of rights which can be vindicated in the courts and disputes which can be adjudicated according to law – to other non-assignable goods, including the good of eight hours’ sleep or an evening in front of BBC 4. In practice, many non-assignable goods are difficult to deal with in this way, as witness the vagaries of anti-social behaviour legislation: the baseline entitlement to a non-assignable good (such as peace and quiet), the level to which others are responsible for upholding that entitlement and the degree to which offending behaviour infringes it are often hard to establish. However, this is not to say that relationships between one person’s anti-social behaviour and another’s unmerited suffering can never be established; in practice they very often can. My neighbour is not going to be able to fly under the law’s radar by making sure that all he deprives me of is the non-assignable good of a good night’s sleep – any more than if it were the non-assignable good of an unbroken nose.

But what is my neighbour doing in the (mercifully, highly unlikely) case that he tortures me? Here, I think, a different relationship between justice and personhood obtains. If we think of bodily integrity as a non-assignable good (and certainly your good health does nothing to impair mine), then the victim of torture has been deprived of a non-assignable good, and may be unable to play a full part in society as a result – but, as stated, this is no less true of the victim of a random assault at pub closing time. We can say that torture is more likely to have traumatic effects, and this seems significant: certainly if we think of other experiences which are likely to produce trauma (rape, battlefield stress, partner abuse) the word ‘torture’ is never far away. Torture, then, is one of the things that inflict trauma, in a way that a beating in the pub car park generally isn’t. But why is this a significant distinction? The point, I think, is that torture is an attack on my personhood. Personal violence can often be understood in terms of enhancing the attacker’s relative position by depriving the victim of a non-assignable good, making it harder for that person to play a role in society. Pace Gardner, the immorality of torture is not grounded in its depriving the victim of a non-assignable good. Torture is not about enhancing the torturer’s position relative to the victim, even with respect to the non-assignable good of freedom from pain. Torture – and other forms of traumatic assault – can be seen as an attack, not on the victim’s capacity to function in society, but on the victim’s basic recognition as a person who might be entitled to any such capacity. More simply put, causing pain for no reason is not something one person does to another; torture thus situates the victim as less than a person. It’s interesting, in passing, that Mill characterised rape in very similar terms – “the lowest degradation of a human being, that of being made the instrument of an animal function contrary to her inclination”. To commit rape, in this line of thinking, is not to deny someone the good of freedom from rape, but to deny her the status of a person entitled to freedom from rape (and entitled, as a second-order right, to live her life on the basis of an assumed freedom from rape).

I think Gardner’s distinction between the immorality of torture and the wrongs which can be understood in terms of allocative justice is valid and powerful, although not quite in the way that he uses it. What I think it points to is the ways in which people can be reduced to something below the status of personhood – through torture or brutalisation, but also through homelessness, institutionalisation or becoming a refugee – and the powerlessness of the language of justice to address these very basic, fundamental wrongs. If the law is about justice, and justice is defined in terms of the correct adjudication of competing claims among autonomous individuals, how can it address – how can it fail to overlook – those people who are shut out of the game entirely, by being denied the status of person in the first place? And if the law can’t be invoked, what can?

2. Did you read the trespass notices, did you keep off the grass?

A bit more Gardner, from the 2011 paper on tort law. It’s quite a complicated thought, so the quote has to be on the long side:

Let’s allow … that tort law often helps to constitute the correctively just solution. What doesn’t follow is that tort law’s norm of corrective justice should not be evaluated as an instrument. On the contrary, to fulfill its morally constitutive role, tort law’s norm of corrective justice must be evaluated as an instrument. It must be evaluated as an instrument of improved conformity with the very moral norm that it helps to constitute. To see why, think about some other laws that are supposed to lend more determinacy to counterpart moral norms.

Quite apart from the law, for example, one has a moral obligation not to drive one’s car dangerously. The law attempts to make this obligation more determinate by, for example, setting up traffic lights, road markings, and speed limits. If the law does this with sound judgment, the proper application of the relevant moral norm is changed in the process. A manoeuvre that would not count as dangerous driving apart from the legal force of the lane markings at the mouth of the Lincoln Tunnel may well count as dangerous driving – and hence a breach of the moral norm forbidding dangerous driving – once the lane markings are in place. But this holds only if the law proceeds with sound judgment. It holds only if relying on the lane markings assists those who rely on them to avoid violating the original moral norm. If the mouth of the Lincoln Tunnel has profoundly confusing lane markings, reliance on which only serves to make road accidents more likely, failing to observe the lane markings is not a legally constituted way of driving dangerously. It is not immoral under the ‘dangerous driving’ heading. That is because, if the lane markings are profoundly confusing, driving according to the lane markings does not and would not help to reduce the incidence of dangerous driving.

The lesson of the case is simple. A legal norm cannot play its partly constitutive role in relation to a moral norm unless it also has some instrumental role to play in relation to the same moral norm, unless conformity with the legal norm would help to secure conformity with the moral norm of which the legal norm is supposed to be partly constitutive.

We start with the “moral obligation not to drive one’s car dangerously”. Laws – embodied in road markings – are put in place to support this moral norm. In doing so they also constitute it, make it “more determinate”: if road markings are being generally observed, failing to observe them may amount to driving dangerously in and of itself. However, road markings – and laws – may defeat their own purpose. If road markings are so confusing that attempting to rely on them would make the driver more dangerous to other road users rather than less, failing to observe them will not amount to driving dangerously. Similarly a law may instantiate a moral norm, but do so in such a “profoundly confusing” way that someone attempting to observe the law will be more likely to violate the norm. If this is the case, anyone committed to observing the norm will be best advised to disregard the law which purports to embody it. “A legal norm cannot play its partly constitutive role in relation to a moral norm unless it also has some instrumental role to play in relation to the same moral norm”: road markings put in place to help prevent dangerous driving may themselves define dangerous driving, but only if observing them actually leads to less dangerous driving.

Three relationships between moral norms and the law are envisaged here. In one, the law embodies and gives substance to a moral norm. In the second, the “proper application” of the norm is redefined by reference to the law, leading to a changed perception of the norm itself. The third is identical to the second, except that in this scenario the “proper application” of the norm has been redefined to the point where the law does not assist observation of the norm, and may even impede it.

There’s a problem here, relating to that word ‘instrumental’. It seems to me that there’s something inherently problematic in judging the success or effectiveness of laws in consequentialist terms – in terms of the outcomes which they produce or appear to produce. Firstly, assuming that the moral norm to which a law relates can be straightforwardly identified, there is the question of what should be counted as success. Bad road markings, in Gardner’s image, are those for which “driving according to the lane markings does not and would not help to reduce the incidence of dangerous driving”. However, it is a commonplace of debates on sentencing that the criminal law can modify behaviour – both individually and at the level of society – in many different ways; what type(s) of behaviour modification should be counted as success is an open question. Is a law prohibiting practice X at its most effective if the incidence of X-ing is reduced to zero? Or is the effectiveness of the law to be judged by the appropriateness of the punishment dealt out to X-ers, or by the opportunity it gives the community to express their repugnance at X-ing, or by the degree to which it raises awareness of the plight of victims of X-ers? A case could be made out for any of these, not all of which can be reconciled easily or at all. Secondly, it’s not always clear that the moral norm underlying a law can in fact be readily identified, still less the body of moral norms underlying the law (or an area of the law, such as the criminal law or the law of tort). The point here is not that the law is necessarily obscure, but that it is necessarily multivocal: it’s always possible for different and competing claims to be made as to the underlying moral rationale of a law or laws. This in turn raises the question of who is to do the identifying – and whether what they identify can change over time. Suppose that an elected government, facing a long-term economic depression, declares that poverty is a higher priority than crime, and that the law should generally not be used to impoverish poor offenders further. Or suppose that an elected government, facing a rise in crime figures, declares that the chief menace facing the country today is lawless behaviour by immigrants, asylum seekers, Travellers and people of no fixed abode, and that wrongdoing by individuals with no stake in a local community should be treated more harshly. Would these programmatic announcements represent authoritative clarifications of the body of moral norms instantiated by the law, the criminal law in particular? Would we expect the judiciary to ‘read down’ legislation to ensure compliance with these policy stances? If not, why not?

As in the case of torture considered as deprivation of a non-assignable good, I think Gardner’s analogy here pulls in a different direction from his stated argument. Road markings modify behaviour in a distinctive way and in a distinctive context, neither of which maps easily onto the law in general. To drive a vehicle is to put others at risk and accept the risk imposed by others; driving safely rather than dangerously benefits both the driver in question and other road users, in a way which is true of few other ‘virtues’ in driving. In effect, driving safely is the solution to the key co-ordination problem posed by collective road use – and it is a simple, readily available and generally acknowledged solution. Moreover, road markings constitute the moral norm of driving safely in a peculiarly authoritative way, which is perhaps only possible because the norm itself is so generally agreed. Road markings do not typically take the form of recommendations or advice; even to call them instructions would understate the force they have in practice. Rather than advise (or instruct) a driver to make certain choices, road markings typically operate by excluding certain choices altogether: they do not influence behaviour so much as structure it. As such, road markings are not open to be technically observed or observed in spirit or ingeniously circumvented: they are observed or not. Both the moral norm underlying road markings and the criteria for their observance are self-evident, in a way that is seldom true of the law.

Are we committed to abandoning any ‘instrumental’ evaluation of the law, or of individual laws, by reference to their outcome? This conclusion would be unfortunate; not only would it necessitate abandoning Gardner’s insight on the reflexive relationship between laws and norms, it would make it impossible to say whether any law was making the world a better place. A narrower reading of Gardner’s analogy may provide a solution. The situation in which road markings are “profoundly confusing”, such that “reliance on [them] only serves to make road accidents more likely”, can be interpreted in a number of different ways. The implication could be that the road markings are so confusing that it is effectively impossible for any one driver to follow them. Alternatively, it could mean that the markings can be followed, but only at so great a cost in time and attention as to force the driver to disregard other road users, so that observing the markings made his or her driving more rather than less dangerous. Lastly, it could mean that the markings are confusing in the sense of allowing widely diverse readings; markings which could plausibly be followed in multiple different ways would not make any one person’s driving more dangerous, but would greatly increase the likelihood of accidents.

All these forms of confusion can be readily envisaged as flaws of badly-made laws or legal systems: the law so complex and confusing that it is impossible to observe; the law whose demands are so extensive as to make it hard to carry on the activity the law is intended to regulate; the law whose vague or contradictory wording causes more social conflicts than it resolves. Any one of these flaws will make a law less effective, either in guiding individual behaviour or in resolving co-ordination problems; as a result, the moral norm underlying the law will be less effectively constituted in social practice, or (at worst) not constituted at all. However, these are all formal flaws: the failure of the law to constitute a moral norm can be inferred from the failure of the law as law. The realisation of the moral norm underlying the law does not need to be measured as an outcome – indeed, it is probably better if this is not attempted, for the reasons given above.

What I draw from Gardner’s analogy, in short, is a restatement of the intimate connection between morality and the formal virtues of law. To say that a law or body of laws is coherent, comprehensible and followable is not simply to say that it is well-made. A well-made law is also one which is well suited to embody a moral norm – and, crucially, to refine and specify the proper application of the norm in social practice, playing “[a] partly constitutive role in relation to a moral norm”. Whether or not the formal virtues of law have any moral content in themselves, I think this argument suggests that there is at least an irreducible affinity between law and morality.

All the spaces the text affords (4/5)

All clear? Sorry that last instalment was so long; hopefully this will come out a bit shorter.

Here’s a passage from Hillel Steiner’s contribution to A debate over rights which stopped me in my tracks when I read it: I had to put the book down to work out what was going on, which involved staring into space for most of the next half hour.

Suppose you and I conclude a contract which imposes a duty on you to make a payment to my brother: he is the third-party beneficiary of our agreement. According to the Will Theory, I am the only right-holder involved in this arrangement. … According to the Interest Theory, however, not only am I definitely a beneficiary but also my brother, as another beneficiary, is also a right-holder in respect of your duty. …

One apparent difficulty raised by this view is the danger of a proliferation of right-holders. For if my brother proposes to use that payment to purchse something, then it looks like his vendor is a fourth-party beneficiary of my contract with you. …

Bentham suggests that a person is properly included in the set of a duty’s beneficiaries only if the breach of that duty would be a sufficient condition of that person’s interests being damaged. This test obviously does supply the requisite surgical remedy by cutting my brother’s vendor (and her successive beneficiaries) out of that set.

But (Steiner continues) can Bentham’s ‘sufficient condition’ test be defended in its own right, setting aside the fact that it is useful for anyone who wants to uphold an Interest Theory of rights?

If I supply you with the security codes for a bank vault, I supply a necessary but insufficient condition of your robbing that vault. Our ordinary understanding of ‘interests’, it seems to me, is such that my action would none the less count as detrimental to whatever interests persons have in that vault’s not being robbed. And if that’s so, your failure to pay my brother does count as detrimental to the interests of his vendor, whatever Bentham may say to the contrary.

If our ordinary understanding of ‘interests’ is such that supplying you with the security codes for a bank vault counts as detrimental to whatever interests persons have in that vault’s not being robbed, then your failure to pay my brother does count as detrimental to the interests of his vendor. Ow. You may now stare into space.

Steiner’s responding to Kramer, who sets out Bentham’s test in the course of his exposition of the (or an) interest theory of rights. The set-up is essentially the same, but it’s worth paying attention to the way Kramer phrases it:

Suppose that X has contracted with Y for the payment of several thousand dollars by Y to Z. Suppose further that Z plans to spend all of her newly obtained money on some furniture from W‘s shop. In this scenario, W of course will have profited from Y‘s fulfilment of the contractual obligation. Now, given that the Interest Theory ascribes a right to Z – a right that is probably not enforceable and perhaps not waivable by Z – must it also ascribe a right to W?

Kramer describes Bentham’s test in these terms:

any person Z holds a right under a contract or norm if and only if a violation of a duty under the contract or norm can be established by simply showing that the duty-bearer has withheld a benefit from Z or has imposed some harm upon him. Proof of the duty-bearer’s withholding of a desirable thing from Z, or proof of the duty-bearer’s infliction of an undesirable state of affairs on Z, must in itself be a sufficient demonstration that the duty-bearer has not lived up to the demands of some requirement.

So, what about X and Y?

Bentham’s test will work very smoothly when applied to the scenario of the third-party-beneficiary contract. To prove that Y has breached his contractual duty to X, one need only show that Y has inexcusably failed to make the required payment to Z. In other words, one need only show that Z has undergone an unexcused detriment at the hands of Y. Establishing that fact is sufficient for a successful demonstration of Y‘s breach of duty. Hence, Y‘s duty to X under the contract is conjoined with a duty owed by Y to Z; Z, in turn, holds a right to be paid by Y. …

While a demonstration of Y‘s inexcusable withholding of the requisite payment from Z is sufficient to prove Y‘s breach of contract, the same cannot be said about a demonstration of Z‘s failure to buy furniture from W‘s shop. Z‘s abstention from any purchases cannot by itself be adduced as sufficient grounds for concluding that Y has declined to fulfil his contract with X.

Now that is clear.

Steiner’s suggestion that Kramer doesn’t justify Bentham’s test independently of its utility for the Interest Theory seems ungenerous at best; Kramer’s position, as in the third-party-beneficiary example, is that when it’s applied to a problem in interpreting rights, Bentham’s test works – which is to say, it gives legally unproblematic, logically defensible and intuitively plausible answers. Steiner also appears to have got Bentham’s test backwards – the point is not that “the breach of [the] duty would be a sufficient condition of that person’s interests being damaged”, but that damage to that person’s interest is sufficient to demonstrate breach of a duty. If effect B (e.g. damage to interests) is sufficient to demonstrate cause A (e.g. breach of duty), cause A is a necessary condition of effect B; it may or may not be a sufficient condition.

Setting this aside, let’s compare Steiner’s two scenarios. In one, I make a contract with Bertram to pay money to Charlotte; I renege on the contract, leaving Charlotte out of pocket and unable to buy goods from David. In the other, I am employed by Bertha as a security guard. I break my contract of employment, enabling a burglar (Eric) to rob Charles’s bank vault; this is to the detriment of both Charles and his depositors, including Dawn. Intuitively, Steiner argues, we would say that David does not have a case against me, but Dawn has. However, the interest theory (as qualified by Bentham’s test) would disqualify Dawn as well as David; this, for Steiner, suggests that either the test or the interest theory itself is flawed.

There are three main possibilities in interpreting these two scenarios, depending on how we read Steiner’s two claims: that they both involve an indirect victim who would be disqualified from any rightful claim according to Bentham’s test; and that the second of them involves a victim who should not be disqualified. The possible readings are:

  1. The two scenarios are comparable; the indirect victim should be disqualified in one case but not the other
  2. The indirect victim should be disqualified in one case but not the other, but Steiner is wrong to say that the two scenarios are comparable
  3. The two scenarios are comparable, but Steiner is wrong to say that the indirect victim should not be disqualified in the second case; in fact the indirect victim should be disqualified in both cases

If either reading 2 or reading 3 is sustained, Bentham’s test survives unscathed.

Let’s consider reading 2: that there are significant differences between the two scenarios. Is this the case? Certainly, where parties C and D are concerned, we’re dealing with a loss in one case and failure to achieve a gain in the other – and there’s a criminal offence in one case but not the other – but their positions as third and fourth parties are the same.

A second complicating factor is my degree of responsibility for the loss. As we have seen, Steiner suggested that in betraying the security codes I furnished Eric with “a necessary but insufficient condition” of robbing the vault. Steiner’s formulation is terse and potentially misleading – it is unlikely to be the case that my misappropriation of the codes is the only possible route to robbing the vault. The thinking here seems to be that the capacity to enter the vault undetected is a necessary condition of robbing it, and my giving Eric the codes is a sufficient condition for him to acquire that capacity. This is more elaborate than “A contracts with B to pay money to C”, but I’m not sure it’s much more elaborate. The only significant difference is that it requires the intervention of (yet) another party, in the form of Eric – and since his function is to commit a criminal offence rather than to do anything legitimate, his agency can be bracketed out. To clarify this point, suppose that I let Eric get in by leaving a skylight open, and he made off with some bolts of fine and expensive fabric. Now suppose that Eric decided not to go out that night because it was raining – and the rain got in through the open skylight and spoiled the fabric. Unless the wording of my contract as a security guard was unusually precise, nothing would change significantly between the two scenarios as regards my responsibilities, or my relationship with Bertha, Charles and Dawn.

Another complication – although in this case it’s a complication that positively helps Steiner’s case – is my indirect relationship with the bank. If I were employed directly by Charles, it would be arguable that the third-party beneficiaries of the contract were, precisely, Charles’s clients, meaning that the two scenarios were not comparable. I think this would be a confused line of reasoning; if I work in security for a bank, the benefit accrues directly to the bank and only indirectly to its clients. Indeed, it could be argued that the bank is its own third-party beneficiary: as a bank guard I contract with the deposit-holding wing of the bank to keep those deposits secure, the benefit accruing to the trading wing of the bank. In any case, assuming that I work for Bertha’s security company removes this asymmetry.

In short, reading 2 can’t be made to work; the two scenarios, although superficially very different, seem to be directly comparable. But is Steiner right to suggest that my actions in the second case were detrimental to the interests of Dawn, the indirect victim – and that this casts doubt on the utility of Bentham’s test? I’m not convinced that he is. What, after all, is Dawn’s case against the bank? Something turns, perhaps surprisingly, on the nature of Dawn’s loss. If Dawn is simply a depositor, it’s not clear that she has sustained any loss at all. Banks don’t hold our account balances in the form of stacks of notes – which is just as well, seeing that they don’t go into the bank in that form, by and large.  Money is supremely fungible. To say that I have a balance of £X is to say that the bank undertakes to pay me up to £X without asking for anything back; the bottom line of a bank statement is effectively a promissory note, a promise “to pay the bearer on demand”. It may conceivably be that Dawn urgently needs a sum of cash the day after the burglary, and that Eric has emptied the vault to the point where the bank is unable to make the payment, but this is a second-order problem relating to the relationship between Charles and Dawn; Dawn’s interests as an owner of property, some of it in the form of bank deposits, are not affected by the removal of folding money from the vault. Not only are the two scenarios are directly comparable, it seems; the relations between third and fourth parties (Charlotte and David, Charles and Dawn) are also directly comparable, and equally disconnected from the relationship between me, Bertram/Bertha and Charles/Charlotte. Whether Charles is able to carry on business as usual with Dawn is not determined by my breach of contract with Bertha, any more than whether Charlotte is able to spend money with David is determined by my breach of contract with Bertram.

It could be argued that this whole line of argument is misdirected, however. Steiner refers, not to bank depositors in general (whose interest in bank vaults not being robbed seems to be surprisingly limited), but to “whatever interests persons have in that vault’s not being robbed”. Let’s suppose, then, that Dawn does have an interest in the vault not being robbed, in the sense that it holds personal items which would be hard or impossible to replace. I stop carrying out my duty to Bertha, to benefit Charles by securing his premises, with the result that Dawn suffers a permanent loss (from Eric or possibly from bad weather). Surely this is a case of a genuine fourth-party beneficiary (or victim)? I don’t believe it is. The loss in this case is not in fact to Charles but, directly, to Dawn (or, at most, to both Charles and Dawn): I have permitted the removal or spoilage of Dawn’s property, giving my actions just as direct a relationship with Dawn’s interests as if the burglary had taken place at her house. Dawn has a claim against me to the extent that I have undertaken, explicitly or implicitly, to protect her property as well as Charles’s. And, I would argue, if I am placed in the position of protecting premises whose contents are both vulnerable and irreplaceable, I (or my employers) have made just such an undertaking and thereby acquired a liability to the property’s owners. To the extent that the third-party beneficiary of my contract with Bertha is Charles and not his depositors, it seems to me, it must be open to Charles to keep his depositors out of the picture as regards the relationship between him and Bertha (and, by extension, me). If it is not possible, Dawn and other depositors cease to be fourth parties and become third-party beneficiaries in their own right.

My reading may be challengeable, but it seems to me that Steiner’s attempted disproof of Bentham’s test has led us instead to a demonstration and restatement of the test. In a contract with a third-party beneficiary, fourth-party beneficiaries are those who have no right under the contract, as a detriment to them does not suffice to prove breach of the contract. If detriment does prove breach of the contract, the supposed fourth party is in fact an unanalysed third party.

As I said at the outset, I’m keeping an open mind about the Interest Theory of rights, at least in Kramer’s form; my temperamental inclination is more towards some form of Will Theory. But, to the extent that an Interest Theory requires to be delimited by Bentham’s test in some form, and to the extent that Steiner’s argument aimed to undermine Bentham’s test, I’d say that the Interest Theory is looking pretty good so far.

Next: some thoughts on two brief passages by John Gardner (one on tort and torture, the other on road markings and the minimum morality of law). After that I shall probably have to get back to work.

Turtles all the way up (3/5)

Let’s return to those second-order pairings – power :: liability and immunity :: disability (or if you prefer, to those second-order opposites: power/disability and liability/immunity).

1. So then I took my turn

Consider the criminal law: I have a duty to obey the law; we can suppose that this is correlative to a privilege held by the state, or an individual who holds an office enabling him or her to represent the state, e.g. my friendly local policeman, who I’ll call PC Yellow (for reasons which will become clear later). Now, what can Yellow and I do with this duty/privilege pairing – or rather, what can’t we do with it? The important thing that Yellow can’t do, I think, is waive it. Enforcement of the law can be selective and discretionary – you could say that the texture of the law is open enough for enforcement always to be discretionary to some extent. But it’s not open to Yellow to state that, as far as he has anything to say about it, I personally am free of any duty to obey the law; at least, if he does say that, it’s likely to cause legal trouble for him.

So I have a duty to obey the law, correlated to a privilege in the performance of that duty held by PC Yellow, and Yellow is unable to waive that privilege; in other words, Yellow has a disability of waiver, correlating to an immunity to waiver on my part. ‘Immunity’ may seem like an odd term in this context, but what we’re really talking about is one person altering another person’s legal standing: as a citizen subject to the rule of law I’m ‘immune’ to Yellow placing me above the law, but by the same token I’m immune to being placed below the law, subjected to arbitrary impositions and controls.

This is an example of the ‘second-order’ quality of powers (and disabilities) – the fact that they have effect on other jural relations. Confining myself for the time being to the power of waiver, any holder of a privilege (correlated with a duty) may have the power of waiver over the duty; more to the point, if the holder of the privilege doesn’t have a power of waiver, he or she must necessarily have a disability of waiver. A power of waiver is correlated with a liability to waiver on the part of the duty-holder; a disability of waiver is correlated with an immunity to waiver. Liberties as well as duties may be waived: the holder of a no-right (a lack of entitlement to constrain another’s actions in a particular area) may also have the power of waiver over the correlated liberty – and if the holder of the no-right does not have a power of waiver, he or she will necessarily have a disability of waiver.

At this point it gets (more) complicated. Duties and liberties both represent ways in which one person’s actions are subject to another’s control – or delimited lack of control; but the same can be said of liability and immunity, given that liability by definition involves the potential imposition of a duty. It follows that liabilities and immunities can also be waived – which is to say that they are logically associated, in any given case, with either  power of waiver or a disability of waiver.

We can see where this logic leads if we return to our criminal law example. So far we have one duty (to obey the law) and one privilege, plus one disability (Yellow’s incapacity to place me above the law) and one immunity. Now, can I waive my immunity[1]? In general terms, somebody who is immune to prosecution (for instance) may well have the power of waiving that immunity. Can I, in this case, waive the immunity[1] to being placed above (or beneath) the law? We’ll assume that it’s an unwaivable immunity – I can’t opt to be above the law even if I’d like to be. In this case, I hold a disability[2] of waiver of immunity to waiver, which correlates with an immunity[2] held by Yellow. Yellow in turn is unable to waive his immunity[2], giving him a disability[3] which correlates with an immunity[3] on my part – this third immunity being an immunity to waiver of immunity to waiver of immunity to waiver of duty. I am unable to waive this immunity[3], which means… but enough already; you get the gist.

Hillel Steiner, in his contribution to A Debate over Rights considers the criminal law in Hohfeldian terms and rapidly heads off in a different direction:

Like ordinary citizens, subordinate state officials are standardly disabled from waiving compliance with criminal law duties. Thus Yellow, a subordinate state official, holds a disability to waive a person’s duty not to rob. Yellow’s superior, let’s call her Black, therefore holds an immunity against Yellow’s doing so. Can Black waive her own immunity? What would be implied in denying her the power to do so? For Black’s immunity to be an unwaivable one she, in turn, would have to be encumbered with a disability: namely, the disability to waive Yellow’s disability. But if Black does hold such a disability then some still more superior official, call him Green, must hold an immunity correlative to Black’s disability.

We could, I suppose, continue indefinitely adding such epicycles to this line of reasoning by imagining that Green’s immunity too is unwaivable and identifying yet another even more superior official, Orange, who in turn holds the immunity correlative to Green’s thereby entailed disability. And so on. Let’s not do that. For the sufficiently unmistakable point here is that wherever we decide to stop this otherwise infinite regress, it can be stopped only by an immunity which is waivable. Unwaivable immunities (eventually!) entail waivable ones. So, yes, there can be unwaivable immunities. But what there can’t be are unwaivable immunities without there also being a waivable one. And the waiving of that one renders waivable whatever (otherwise unwaivable) immunity entails it.

A similar passage in Steiner’s 1994 book An Essay on Rights is discussed in Nigel Simmonds’s 1995 paper “The Analytical Foundations of Justice”; the argument reappears more or less unchanged in A Debate over Rights, albeit with a long footnote in response to Simmonds.

There are three things to say about Steiner’s argument here. One is that an Austinian command model of law seems to be creeping in here, with antinomies in the law resolved by reference upward. The thinking here seems to be that official A’s unwaivable subjection to the law is a disability held by official B, who in turn is bound by the effects of a disability held by official C, and so on up the chain until we reach Permanent Secretary Z, whose superior is the sovereign; the latter holds a position above the law, which enables him or her to waive Perm Sec Z’s disability, enabling Z in turn to set the underlings free. Some such model can explain how the rule of law is compatible with change in the law. Interestingly, you can turn the whole model upside down without much loss of explanatory power: official A is above the law relative to you and me, but holds a disability making him or her liable to the law relative to official B, who in turn is above the law relative to A but not to C… until we meet Perm Sec Z, directly subject to the sovereign, who in turn is subject to nobody but empowered to make the law. In this case we would have explained how official freedom of action is compatible with the rule of law. But I think we’re dealing in fables either way, and (more importantly) fables based on a very limited model of the law.

The second point to make – and one that’s made very clearly in Simmonds’s paper – is that Steiner is at best departing from Hohfeld. If we follow Hohfeld, there’s no reason to bring Yellow’s superior into the picture. Yellow’s disability vis-à-vis you or me does not correlate with an immunity held by his or her superior; it correlates, precisely, with an immunity held by you or me. The regress is not vertical but spiral: it consists not of Yellow referring his/her immunity up a Kafkaesque chain of superiors, but of me and Yellow running up an infinite pitch while passing the immunity ball back and forth between ourselves. There’s also something odd – and un-Hohfeldian – in Steiner’s apparent belief that the infinite regress could be stopped with a waivable immunity, i.e. by substituting a power for a disability. In Hohfeldian terms (as Simmonds points out) this would make no difference at all: if you did have the power to waive your immunity, this would correlate to a liability held by Yellow, who would in turn either be able or unable to waive that liability, and off we would go again.

On the other hand (and thirdly), I do think Steiner has identified a genuine problem. I’ll discuss it in the next section.

2. Enough! No more.

If we use Hohfeld’s model, the reasonably plain-language term “unwaivable” apparently can’t be defined without presuming an immunity to waiver of immunity to waiver of immunity to waiver, to say nothing of an immunity to waiver of that immunity, an immunity to waiver of that one, and so indefinitely on. Simmonds talks of these higher-order immunities and disabilities being ‘generated’ through inquiry, which I think is a useful way of looking at it; as if to say, the question of the waivability of the immunity to waive (etc) only arises once you ask it, but once asked it has to be answered. One can imagine MacCruiskeen in the Third Policeman being an expert in this field:

“Ah now. You’ll be talking about the immunity to waiver of the immunity of waiver.”

I supposed that I was. The policeman gave me a look of indescribable craftiness.

“That’s the cleverness of it, you see? I’m talking about the immunity to waiver of the immunity of waiver of the immunity of waiver. And I know what you’re wondering. Can that immunity be waived of its own self?”

I said nothing. The policeman’s ingenuity was rapidly ceasing to be a thing of fascination and becoming one of horror. MacCruiskeen caught my eye and – ye Gods! – winked.

“It cannot, and that’s the truth. There exists an immunity of waiver of the immunity of waiver of the immunity of waiver of the immunity of waiver. What do you think of that now?”

I agree with Steiner in finding this line of thinking troubling. Apart from anything else, it makes me wonder what would happen if I somehow acquired a liability to waiver of immunity to waiver of immunity to waiver of immunity to waiver of immunity to waiver of duty, as it were by accident – would that liability ripple down the chain, leaving me liable (under certain conditions) to waiver of duty? And then, how could the acquisition of some such nth-level liability be ruled out? In his footnote Steiner argues that “any form of infinite regress … cannot be part of anything describable as a normative (much less legal) system; there are necessarily insufficient persons and/or time to sustain it” (emphasis in original); the ‘spiral regress’ proposed by Simmonds resembles “a game whose rules include a stipulation that, at the end of any round, either player is entitled to demand a further round” – an instruction set so open to being prolonged that (pace Wittgenstein) it would be difficult to describe it as a game.

The ‘spiral regress’ thus raises two inter-related problems. On one hand, in specifying a second-order relation – a liability or immunity – it seems as if we can never stop. A liability which can be waived is a liability associated with a power of waiver, correlated with a liability to waiver; this second liability in turn may be waivable, in which case it in turn will be correlated with a second power of waiver… and so on. Different possibilities seem to open up at every stage, and the stages can multiply indefinitely. On the other hand, when interpreting second-order relations – working, as it were, from the outside in – the appearance of multiple, ramifying possibilities seems to collapse. To say that I can waive my immunity to waiver of an immunity to waiver of duty is to say that, in some circumstances, I am liable to waiver of an immunity to waiver of duty – which in turn equates to saying that I may be liable to waiver of duty. Depending on your standpoint, the multiple levels of secondary jural relations seem either to need specifying to infinite precision or to be logically equivalent – in which case they would not need to be specified at all.

As with Dworkin’s right not to be lied to, I think there are a number of possible solutions to this puzzle. One is what you might call the “and no returns” approach. This would see the immunity of waiver I enjoy relative to PC Yellow and the criminal law elaborated into a general immunity, encompassing that immunity and all derivable immunities: as if to say, I have an immunity relative to you in the area of waiving the duty of obeying the criminal law, I have a composite disability relative to you in the area of waiver of this immunity and in the area of waiver of any higher-order immunities deriving from it, and I have a further immunity relative to you as concerns the waiver of the composite immunity correlating to that composite disability. This is a single sentence, but otherwise it’s not much of an improvement: we haven’t succeeded in parcelling up all those higher-order immunities into a single over-arching immunity. And, even if we had done, the Hohfeldian question would still be lurking: this immunity – can it be waived or not?

A more fruitful approach, I think, would be to say that, while it’s always possible to inquire about the powers or disabilities associated with a particular duty, liberty, liability or immunity – and once asked the question can always be answered – it’s not generally necessary to make the inquiry. An infinite (spiral) regress is always possible, but it only comes into being when you start to explore it. And – importantly – traversing the spiral regress generated by considering powers of waiver is something to be done in the real world, under specifiable conditions, not as an abstract exercise. This “real world” stipulation, I think, wards off both the mise en abîme feared by Steiner and the risk of the spiral collapsing into undifferentiated logical equivalence. Here’s an illustration. Let us say that an eccentric relative leaves me a small annuity in his will, on the condition that I visit his grave every May Day. The duty, correlating to a privilege held by Uncle Albert’s executor, is not waivable; if there is no visit, the executor will not pay out. This disability[1] correlates to an immunity[1] on my part; my duty cannot be affected by any variation of the terms of the will by the executor. I am not able to waive this immunity; I have a disability[2] of waiver, correlating to an immunity[2] to waiver held by the executor. In other words, I cannot agree to any variation of the terms of the will which the executor puts forward, and if I offer to agree any such variation the executor may not entertain the offer – he or she is immune to the suggestion. Further, the executor is powerless to waive this immunity, and this disability[3] correlates to a further immunity[3] on my part: it is not open to the executor to propose that henceforth, under certain circumstances, suggestions of agreement to possible variations in the will’s terms will be entertained, nor is it open to me to take any notice of such a proposal.

Let’s suppose, then, that I acquire the power to waive this last immunity, and the executor’s correlative disability with it. In this situation I would let the executor know that, under certain circumstances (which I would specify), I would endorse the proposal that suggestions of agreement to possible variations in the will’s terms would be entertained. What happens now? If my earlier intuition were correct, and a power of waiver would simply propagate back down a chain of immunities and disabilities, I could proceed fairly directly to asking the executor if I could cut out this year’s May Day observance and take the money anyway. This clearly isn’t the case: my willingness to endorse the above proposal (under specified conditions) creates the conditions for the proposal to be made, but doesn’t generate it; that’s up to the executor. If he or she wishes to make such a proposal, and if my stated conditions are congenial, my waiver of my immunity[3] makes it possible for the executor in turn to waive his or her immunity[2] and offer to accept my agreement to possible future variations of the terms of the will, should I give it. However, the waiver of my immunity[3] does not make the waiver of the executor’s immunity[2] necessary – and if the executor does in fact decide to waive his or her immunity[2], this can be done with a whole new set of strings attached. If both sets of conditions are satisfied, and if I wish to do so, I can then agree to any variation of the terms of the will which the executor puts forward – if he or she decides to do so, and if any new conditions attached to this operation are met.

I think that working through this example demonstrates that both the fear of an infinite regress and the fear of collapse into logical equivalence are overstated. It’s true that the spiral of correlative immunities and disabilities (or liabilities and powers) can always be given one more twist: in fact, to say that I can waive my immunity[3] implies that I must have a power[4] to waive my immunity[3] to the waiver of an immunity[2] to the waiver of an immunity[1] to waiver of duty (and to say that I cannot would imply a disability[4], and so on). But once real world considerations are imported diminishing returns start to set in fairly quickly. It makes fairly good intuitive sense to talk about not being able to waive my immunity to any variation of my duty; it’s less obvious what a waiver of immunity to proposals that suggestions of agreement to possible variations in my duty might in future be entertained would look like, or when we might need one. The same logic applies when you look at the spiral from the outside in. While further twists of the spiral can always be generated, higher-order powers and immunities are always in a sense parasitic on lower-order ones, and can’t determine them: waiving a higher-order immunity may make it possible to waive the next one down, but does not make it necessary or likely. The spiral regress is populated by human actors with their own interests and bounded freedom of action; legal powers and disabilities constrain their actions but do not determine them.

3. Just step sideways

This is satisfactory as far as it goes, but I don’t think it gets to the heart of Steiner’s worry about Simmonds’ formulation. In my example, a stack of immunities and disabilities followed by a single power of waiver would not lead to the waiver of the first immunity automatically, regularly or (in practice) very often at all; in practice, it would be of very little moment whether the fifth or sixth twist of the spiral was populated by a disability or a power, given the extreme unlikelihood of any fifth- or sixth-level power of waiver actually enabling a first-level waiver. But this result – the waiver propagating back up the spiral – would be possible; the original immunity would not be unwaivable. To formulate an immunity which literally could not be waived, one would need to follow the spiral regress, essentially, to infinity: stopping at the 5th or 10th or 100th iteration would leave open the possibility that the waiver of an n-times-parasitic immunity would propagate all the way back up to the immunity which we originally wanted to protect.

I can see two possible approaches to solving this problem. One would be to appeal to the “real world” approach and dismiss the question as badly-framed. Hohfeld’s jural relations have their own logical precision and purity – the argument would run – but they are jural relations first and last, abstractions moulded to the proportions of real-world problems. A 100th iteration of immunity/disability ball-passing is unimaginable in a real situation; as Steiner says, we just haven’t got the time (although we have got the people – it only takes two). However, what this implies – contra Steiner – is that to treat the spiral regress as a mechanism capable of generating a hundred or more iterations is to get it wrong. An unwaivable immunity, on this logic, is an immunity which is effectively unwaivable: as if to say, “we agree that the next question will be answered in the negative, for as long as either of us has the motivation to ask the next question”. What this formulation brings out is how firmly Hohfeld’s relations are rooted in the model of relations between two people, and specifically agreements between two people. An unwaivable immunity is fundamentally an agreement; as such it cannot be enforced (“I demand that you make this immunity unwaivable by joining me in answering the next question in the negative”) unless it has first been agreed – in which case what is being enforced is not an agreement but observance of a prior agreement.

Another possible approach takes us back to the hierarchy of officials Steiner envisaged as an alternative to an infinite regress. Infinite regress is a besetting problem for theories of the law. Where, after all, do laws come from? Plainly, laws are made by authorities legally endowed with the power to make law. But how did this power arise? It must have been created by an act of law-making; this itself must have been carried out by some higher authority, itself endowed with the power to make law… and so implausibly on.

One way to avoid this infinite regress is to declare the regress to be finite, essentially capping it off at a fixed point. The command model enables us to cut the knot fairly crudely, simply declaring that the state – or the sovereign – is the final source of the law’s legitimacy and hence ultimately takes precedence. Hans Kelsen’s theory of the Grundnorm (‘basic norm’) can be seen as a similar manoeuvre on a more theoretical level. To quote a paper by Neil Duxbury (which, on a personal note, was the first work of legal theory I ever read):

Every legal norm ‘must be created by way of a special act … not of intellect but of will’ – the will of not just anybody, but of a person or body legally authorized to create the legal norm. That authority is itself conferred on that person or body by another legal norm .. which must itself be created by way of an act of will issuing from a person or body whose law-creating capacity is authorized by yet another legal norm. And so on, until we reach the basic norm. Whereas we can explain the reason for the validity of any legal norm by saying that it is attributable to the will of a person or body whose action is authorized by another legal norm, this explanation cannot be applied to the basic norm. The basic norm is not an enacted norm. ‘It must be presupposed,’ Kelsen elaborated in 1960, ‘because it cannot be “posited,” that is to say: created, by an authority whose competence would have to rest on a still higher norm. This final norm’s validity cannot be derived from a higher norm, the reason for its validity cannot be questioned.’ Because it is not an enacted norm, moreover, it ‘cannot be the meaning of an act of will’; rather, ‘it can only be the meaning of an act of thinking’ – the consequence of ‘presuppos[ing] in our juristic thinking the norm: “One ought to obey the prescriptions of the historically first constitution.”’

We can safely say that this is not entirely satisfactory, since Kelsen himself ultimately abandoned this line of thought (or, Duxbury argues, subverted it by developing tendencies within it); his final conclusion was that the basic norm should be thought of, not as a norm attributable to an act of thinking, but as a fictional norm attributable to the will of a fictional authority. This is a more subtle and interesting point than it looks – particularly when we take into account that, at least some of the time, Kelsen used ‘fictional’ to denote that something not only did not but could not exist, owing to internal contradictions – but I won’t investigate it here.

My current point is that both Kelsen’s basic norm and Austin’s sovereign – considered as capstones topping off an otherwise infinite regress – are arbitrary and unsatisfactory solutions, but solutions to a genuine problem. The problem is not, in Steiner’s terms, “a game whose rules include a stipulation that, at the end of any round, either player is entitled to demand a further round” – as we’ve seen in the context of Uncle Albert’s will, in practice this isn’t likely to cause any difficulties. The problem – both for the legitimacy of legal authorities, and for Simmonds’s unwaivable immunities – is a game in which, at the end of every round, the player must ask for another round. In both cases the question is unanswered at the end of each round, and it’s a question that needs an answer – whether it’s where the legitimacy of law-making authorities comes from or whether an immunity genuinely cannot be waived.

For the first of these cases of infinite regress, a much more satisfactory alternative is offered by Hart’s rule of recognition. Hart’s deceptively simple proposition is that any legal system includes a criterion by which laws can be recognised as ‘legal’, and which is acknowledged and upheld by the practices of officials within the system. Instead of referring upwards to a higher authority (itself dependent on a still higher authority), this approach effectively refers sideways. The question posed is not whether an enactment derived from a legitimate authority, but whether the authority in question was engaging in what was recognised as the activity of law-making within that legal system, including observation of the rules and criteria applicable within that system. The regress stops after a single step; the question of whether, for example, the constitution of the present law-making authority took place in accordance with the criteria then applicable is of purely historical interest – unless that question forms part of the criteria to be applied within the current system, in which case it will in effect already have been asked.

Can the infinite spiral regress associated with unwaivable immunities be dealt with similarly? I think perhaps it can. I suggested above that an effectively unwaivable immunity – as distinct from an immunity which is unwaivable by definition – could be modelled as an agreement that the immunity should be treated as unwaivable, generating a disability of waiver whose correlative immunity was in turn treated as unwaivable, and so on: “we agree that the next question will be answered in the negative, for as long as either of us has the motivation to ask the next question”. This is a “let’s not go there” model of unwaivable immunity, essentially. Perhaps all that is needed to formalise this practice – and bridge the gap between ‘effectively unwaivable’ and ‘unwaivable by definition’ – is a generally recognised rule, and a practice of classification through which it can be determined whether the rule applies. In other words, perhaps when we say that an immunity is unwaivable we are not saying that the derived nth-level immunity to waiver carries a disability of waiver correlative to an n+1th-level immunity, and so on; perhaps we are saying that we can rely on this immunity being treated as unwaivable (by the “let’s not go there” method), because we know that it falls into the class of immunities which we have an established and publicly recognised practice of treating as unwaivable. The infinite regress doesn’t evaporate quite as dramatically as in the previous example – it’s still meaningful to say that I have no power to waive immunity to changes in my standing relative to the criminal law, for instance, and to ask what such a power might look like. Navigating the spiral regress ceases to be necessary, though, which is the desired effect.

Does this class of immunities to be treated as unwaivable, or this practice of recognising immunities as unwaivable, correspond to anything in the real world? Fortunately for me (and for your patience), I think it does. One way of modelling the difference between the criminal law and most (all?) other branches of the law is, I think, precisely the unwaivable immunity with which we started: the immunity to being placed above (or below) the law. In other areas of the law – areas which approximate more closely to Hohfeld’s model of a two-person agreement – it is an open question whether a duty can be waived and (if not) whether the immunity correlative to the disability of waiver can itself be waived. In the criminal law the answer to both questions can only be No. This is one aspect of the uniformity of the criminal law, which can be considered one of its defining virtues: equal subjection to the criminal law can be seen as a civil right, a key element of citizenship.

This is speculative and fairly hasty stuff, but I think it’s worth thinking about. To recapitulate, if we did resolve the spiral regress in the way I’m suggesting, it would mean that there was at least one recognisable area of legal practice which operated on the basis of duties and derived immunities being unwaivable – and did so without inquiring too deeply into the waivability of higher-level immunities, as the answer could be assumed to be negative. The criminal law seems like a good candidate.

If you lie to me (2/5)

More about A debate over rights (Matthew Kramer, Nigel Simmonds and Hillel Steiner).

My route into legal theory was via Simmonds and Lon Fuller (or Pashukanis, Simmonds and Fuller to be precise). Matthew Kramer is very much on the other side of the debate when it comes to Hart and Fuller (when it comes to Kramer and Simmonds, come to that), so I have to say I wasn’t expecting to find his contribution to the book particularly congenial. As it turned out, I was pleasantly surprised by the power and cogency of his arguments. I read most of the book enthusiastically and at speed, but Kramer’s section in particular; I found myself muttering some of his conclusions out loud as I read them, not as an aid to comprehension but just because they were so well written. I’m not sure that I endorse his version of the interest theory of rights, but I did notice that Simmonds’s trenchant attacks on interest theories left it largely unscathed (as Simmonds in fact acknowledged). But, as I said, I’ll return to this question another time.

For now, here’s a passage from Ronald Dworkin which Kramer discusses briefly.

Dworkin:

In many cases … corresponding rights and duties are not correlative, but one is derivative from the other, and it makes a difference which is derivative from which. There is a difference between the idea that you have a duty not to lie to me because I have a right not to be lied to, and the idea that I have a right that you not lie to me because you have a duty not to tell lies. In the first case I justify a duty by calling attention to a right; if I intend any further justification it is the right that I must justify, and I cannot do so by calling attention to the duty. In the second case it is the other way around.

Of course, if rights (privileges) are by definition correlated with duties, it cannot make a difference “which is derivative from which”. So what was Dworkin talking about – is there any way to maintain Hohfeldian correlativity while maintaining that there is a significant difference between “I have a right not to be lied to [by you]” and “you have a duty not to tell lies [to me]“, such that information would be lost if we replaced one with the other?

Kramer suggests one line of interpretation:

Dworkin might be referring only to justificational correlativity (and derivativeness) rather than to analytical or existential correlativity (and derivativeness). That is, he might be referring to levels of priority within a justificatory argument only – and not to levels of priority within an analytical exposition or within a legal system. If so, then Dworkin is not proclaiming that Hohfeld’s Correlativity Axiom somehow fails to apply to the legal positions commended by duty-based and right-based theories.

On this reading, Dworkin is not claiming that the paired right and duty are non-correlated, but only that their relationship will be explained in different ways in different situations: as if to say, I might justify the physical challenge of an uphill slope by calling attention to the aesthetic quality of a downhill slope, or vice versa, and it makes a difference (to me and my interlocutors) which is derivative from which.

This is fair enough, but it seems a fairly meagre basis on which to claim that “[some] corresponding rights and duties are not correlative”. Can Dworkin’s argument be grounded more securely? I think it can, in two ways, although neither of them actually challenges Hohfeldian correlativity. In one case the difference which Dworkin detects between the right-not-to-be-lied-to and the duty-not-to-lie rests on linguistic imprecision. The additional information which, Dworkin argues, is carried by one formulation as compared to the other has actually been read into it; if the distinction had been spelt out, it would have become clear that the right and duty being discussed were not a logical pairing and the appearance of an exception from correlativity would have disappeared. In the other, the additional information needed to create the asymmetry derives from a particular reading of the concept of rights – one which is tenable and quite widely used, but is also quite incompatible with Hohfeld’s model.

The first way to salvage Dworkin’s argument rests on generality. Note Dworkin’s phrasing:

There is a difference between the idea that you have a duty not to lie to me because I have a right not to be lied to, and the idea that I have a right that you not lie to me because you have a duty not to tell lies.

Emphasis added. And this is true: there is a difference between the statement that I have a right not to be lied to by anyone, including you, and the statement that you have a duty not to tell lies to anyone, including me. But this says nothing about correlativity. In the (unlikely) case that I hold a privilege of not being lied to against any and every person I come into contact with, this correlates with a duty on the part of each of those individuals. My privilege against you lying to me is one element of this set of privileges against the world in general, and is precisely correlated with a duty on your part. A similar argument applies in the case where you are under a general duty not to lie. All Dworkin is saying, on this argument, is that general privileges don’t correlate with specific duties – which is to say, privileges and duties don’t correlate if they are imprecisely formulated.

Perhaps this wasn’t Dworkin’s reasoning; perhaps the line quoted above is just a case of hasty phrasing or unfortunate editing, and Dworkin’s thought would have been represented just as well (or better) by this formulation:

There is a difference between the idea that you have a duty not to lie to me because I have a right not to be lied to by you, and the idea that I have a right that you not lie to me because you have a duty not to tell lies to me.

Can we make this work, in analytical and not merely justificatory terms (there is a difference between the idea)? Only with difficulty, I think. But there is one angle worth looking at, which I’ll call the argument from confidence. Suppose that Dworkin’s argument implicitly concerned, not a “right not to be lied to”, but to a “right to the confident expectation of not being lied to”. Such a right would certainly seem to carry a derived (and not correlated) duty on others not to lie. If the duty not to lie came first, on the other hand, there would be no question of confident expectation: your duty not to lie to me gives me the right to feel, not confidence, but certainty that you will in fact not lie to me. There seems to be an asymmetry between the two pairings.

But what is this ‘confident expectation’, and why – in the teeth of the text – have I introduced it? I’m thinking now of a conception of rights which is far removed from the level of specificity on which Hohfeld’s model works so well. Suppose that when we invoke rights we’re talking about a kind of potentially universalisable framework of moral duties and privileges governing all social interactions: a framework which we (the community which recognises those rights) aspire to implement as a coherent whole, not least through the law, but which is always necessarily a work in progress. Suppose, in short, that we’re talking about something much closer to Fuller’s “morality of aspiration” than the “morality of duty”. The argument from generality is relevant here: in this situation, any right I might have not to be lied to by you would derive from a broader right not, in principle, to be lied to by anyone. But on this aspirational reading of rights, I would have no absolute right not to be lied to, by you or anyone else. I would have a right to the confident expectation of not being lied to (by anyone), by virtue of my membership of a community which upholds the right not to be lied to as an aspiration; at the same time, I would know that aspirations are not duties, and shortfalls from aspirations – and trade-offs between conflicting aspirations – are always a possibility.

This would not release you from any duty not to lie to me, however. My right to the confident expectation of not being lied to by you is only a duty-generating right in principle, all other things being equal, and only you can know in a given situation whether all other things are in fact equal. That said, if the description of the relationship between you and me is updated to include the line “Phil has the right to the confident expectation of not being lied to by you”, the way in which this new information should influence your behaviour is fairly clear. The associated duty is not correlated, but it derives directly – albeit that, in the unpredictable complexities of social life, it would not derive predictably or uniformly. In short, this way of conceptualising rights leads naturally to the asymmetry which Dworkin identifies in an apparently symmetrical pairing of right and duty.

Dworkin’s argument can be salvaged, then, by the simple expedient of stripping out the specificity, precision and duty-orientation of Hohfeld’s model and replacing it with a conception of rights based on a society-wide morality of aspiration, from which duties could be generated only unreliably and by derivation. In short, the ‘confident expectation’ reading would involve completely abandoning Hohfeld and using a schema which makes no claim to correlativity. The ‘generality’ reading rests on a verbal quibble and disappears if we use more precise phrasing, while Kramer’s own explanation – the ‘justification’ reading – would deprive Dworkin’s argument of the significance he seems to claim for it.

I think we can conclude that the project of reconciling Dworkin’s argument with Hohfeld’s framework has been tested to destruction.

Next: Simmonds and Steiner, and Simmonds on Steiner.

Whose pigs are these? (1/5)

Whose pigs are these?
Whose pigs are these?
They are John Potts’
I can tell them by their spots
And I found them in the vicarage garden
(Traditional)

I recently read A Debate over Rights: Philosophical Enquiries by Matthew Kramer, Nigel Simmonds and Hillel Steiner. I enjoyed it enormously. Over the next few days (or weeks) I’m going to post some thoughts which the book sparked off, focusing on points which puzzled me or seemed to need more developing. The next three posts will document some lines of thought which the book sparked off, and which I’ve been worrying at ever since. Post 5 will be devoted to some thoughts on a couple of essays by John Gardner, which don’t entirely belong with the other posts but need to be go somewhere. I’m not, at this stage, offering any kind of engagement with A Debate over Rights as a whole or with the authors’ main arguments; in fact there won’t be anything (for now) about Simmonds’ contribution, or very much about Kramer’s. I’ll re-read the book once I’ve finished the series, which will hopefully prompt some more thoughts.

This first post is going to provide a bit of theoretical background. The three essays making up A Debate over Rights all begin from the logical model of “jural relations” set out by the legal theorist Wesley Hohfeld (1879-1918). Before getting to the specifics, it’s important to note that all Hohfeld’s relations apply in principle between two people and in a particular field of action. For example, Jay’s desire to wear a hat might be protected from Kay’s attempts to thwart it by a right of non-interference – a “liberty” in Hohfeld’s terminology. In this example, this specific liberty would only make a very small and local contribution to Jay’s freedom of action: it would say nothing about anyone else’s ability to stop Jay wearing a hat, or about any non-hat-related coercion Kay might want to exercise. This is a fundamental point about Hohfeld’s scheme, which can have the unfortunate effect of making it seem weak or trivial in comparison with the grand canvases on which human rights discourse generally works. It’s anything but, as hopefully will become clear.

Hohfeld’s table of relations begins with two pairs of oppositions:

Privilege :: Duty

Liberty :: No-Right

Each pairing obtains, as I said above, between two people and in one sphere of action. Crucially, the elements of these pairings are correlated; where privilege exists on one side, duty exists on the other, and vice versa. If A has a duty towards B as regards x-ing, then B has a privilege in respect of A where x-ing is concerned. Say that you have promised the verger that you’ll unlock the church on Sunday morning. This is a useful thing to do and will benefit lots of people beside the verger, but your duty to do it is a duty towards the verger – just as the verger’s justified expectation that the church will be unlocked is a privilege with regard to you, not to the world (or the congregation) in general. (While Hohfeld’s model derives from and fits most naturally into the sphere of legal rights, it can be used productively to talk about purely moral rights, as in this case.) Some writers replace Hohfeld’s term ‘privilege’ with the more familiar ‘right’, or else ‘claim-right’; another way of formulating B’s privilege in this example is simply to say that B has a right to the fulfilment of A’s duty. (I don’t say B has a right to expect the fulfilment of A’s duty (although this would read more easily), for reasons that I’ll come on to later.)

It’s important to note that this is a relationship of logical, not practical, entailment. In other words, my duty to you in a given area is not something that needs to be done in order to fulfil your privilege over me in that area, which would otherwise exist unfulfilled or in a kind of potential state. My duty is the relationship between us (in that area), viewed from my perspective; your privilege is that relationship as it looks from your standpoint. This is the case even if the relationship was created for the sake of creating the duty, without any thought to the privilege (or, conceivably, vice versa). In Kramer’s formulation, someone who constructs an uphill slope in their garden will necessarily build a downhill slope as well, even if their sole reason for doing so was the aesthetic effect of an uphill gradient.

As for the second pairing, here we enter the territory of rights of non-interference. If A has a liberty towards B as regards x-ing, then B has no right to prevent A from x-ing – in Hohfeld’s (only slightly different) terms, B has a ‘no-right‘ towards A in that area. Many of the entitlements we usually refer to as rights are liberties in Hohfeld’s terms: if I have a right to free speech, this means precisely that I hold a liberty to speak, as against others who might interfere (principally the government). Liberties often take much more specific forms: someone may have a ‘right’ to set up in business (in the form of liberties held against the local authority, the police etc) but not have any ‘right’ to carry on that business without interference (in the form of liberties held against local rivals who might undercut the business, customers who might go elsewhere, employees who might go on strike, etc).

There are diagonal as well as horizontal relationships within the table. The opposite of a privilege is a no-right; the opposite of a liberty is a duty. These are logical opposites, such that – in any given social relationship and sphere of action – one party has either a privilege or a no-right towards the other, and either a liberty or a duty.

Two further pairings can be dealt with more briefly. These follow the same basic structure and apply it, reflexively, to the granting and varying of rights.

Power :: Liability

Immunity :: Disability

If A can alter B’s legal standing in respect of area z, A has a power over B in area z – and, by the same token, B has a liability in respect of A in that area. Equally, if A is unable to alter B’s legal standing in respect of area z, B has an immunity in respect of A in area z – and A has a disability in respect of B in that area. Powers are the opposite of disabilities; liabilities are the opposite of immunities.

As noted above, Hohfeld’s opposites – the diagonal pairings – are logical opposites. I found it useful to think of them as dichotomous variables: for any given social relationship and any given sphere of activity, you either have a liberty or a duty towards the other party, and (at the same time) either have a privilege or a no-right. The members of the liberty/duty and privilege/no-right pairings are mutually exclusive and jointly exhaustive: there is no social relationship and no field of activity to which they don’t apply. There’s no ‘off’ position, in other words. The man I happen to sit next to on the bus has no influence on my later, independent choice of sandwich for lunch – but this is not to say that there is no Hohfeldian relation between person A (man on bus) and person B (Phil) in area y (sandwich choice). Rather, there is a relation of liberty (on my part) and no-right (on his).

The exhaustiveness of Hohfeld’s opposites has some particularly interesting – and easily overlooked – effects when we start to put the two pairings together. Some privileges, and some liberties, can be waived: the verger may let me have a lie-in from time to time; I may let my colleagues put in a collective sandwich order and override my personal preferences for a while. In the first case, where I have a duty towards the verger in the matter of unlocking the church, the verger has a power (of waiver) over that duty – and I have a liability, in the sense that the duty may be altered without my say-so. The second case is more complex. If I have a liberty (towards my colleagues) in the matter of sandwich choice, they by the same token have a no-right towards me; strictly speaking, it’s that no-right which I have the power to waive. Again, powers correlate with liabilities: my colleagues are under a liability, in the sense that their exclusion from input into my sandwich choice may be revoked by me, and not by them.

But remember: the opposites are dichotomous, and dichotomies are jointly exhaustive. Anyone who is owed a duty which cannot be waived does not hold a power of waiver, correlating with a liability on the part of the duty-holder. Instead, they hold a disability (of waiver), which correlates to an immunity from having the duty waived on the part of the duty-holder. There is no sphere of activity and no social relationship which cannot characterised by either privilege or no-right, and by either duty or liberty. And there is no relationship – of privilege to duty or of liberty to no-right – which is not further characterised by either power (to waive or vary) or disability, and by either liability or immunity. John Potts enjoys the privilege of ownership of some spotted pigs, and the liberty of non-interference with that ownership, as against the no-right and duty not to interfere of you, me and the vicar; he also has either the liberty to graze them in the vicarage garden or (more probably) the duty to refrain from doing so, combined with a privilege or (again, more probably) a no-right over the vicar himself in the matter of grazing rights. Viewed in this light, so far from being limited to minute and artificial examples (Kay’s duty not to prevent Jay from wearing a hat), Hohfeld’s correlatives and opposites seem to describe the entire social world – albeit that they describe it in impossibly minute terms, a map even bigger than the territory.

One final point, for now: one of the key points of disagreement between Kramer and Simmonds – indeed, one of the key points at stake in the book’s debate over rights – concerns how to conceptualise these xs, ys and zs which make the Hohfeldian model tick. I may have a liberty towards you in a given area, coupled with an immunity as regards any attempt on your part to waive your correlative no-right – but what are these ‘areas’ that we’re talking about? Are they interests, and if so how do these interests work? If they have the cast-iron, logical-entailment structure of a Hohfeldian correlative pairing, how can they be balanced against other interests? If they aren’t balanced against other interests – if they’re a set of fundamental interests which take absolute priority over other, more fungible interests – then what subset of interests can they possibly be? Alternatively, are Hohfeldian rights a way of building a Kantian model of the will of the individual, expressed freely and without any necessary conflict with other individual wills – and if so how do we make them work in the real world?

I have no idea how to answer any of these questions – not that they’re easy questions from anyone’s perspective. The contrast between ‘interest theory’ and ‘will theory’ models of rights is a major bone of contention both between the authors and among the other writers discussed in the book; I’ll come back to it myself another time (probably after I’ve re-read the book).

Winter songs

[Cross-posted from 52 Folk Songs]

52 Folk Songs: white is an album of seasonal songs, mostly traditional, recorded between the start of Advent and the end of Epiphany last year. Some are religious, some are songs for cold nights and the turning of the year, and some are both. Unfortunately the album wasn’t available for download until February, by which time the moment for Gaudete and the Boar’s Head Carol had passed. But its time has come round again, so here it is.

The full track listing is:

1. A maiden that is matchless (2:07)
2. The holly and the ivy (1:49)
3. Shepherds arise (3:22)
4. A virgin most pure (4:08)
5. In Dessexshire as it befell (3:34)
6. Poor old horse (5:08)
7. On Ilkley Moor Baht ‘At (4:43)
8. Come, love, carolling (Sydney Carter) (2:08)
9. The boar’s head carol (1:49)
10. Gaudete (2:49)
11. The King (1:26)
12. In the month of January (4:22)
13. The Moving On song (Seeger/MacColl) (2:44)
14. The January Man (Dave Goulder) (2:33)

Tracks 2-4, 9 and 11 have been remixed this time round, to give a better balance between the different vocal tracks. Tracks 7 and 13 are ‘hidden’ tracks, as you’ll see (or rather won’t see) if you visit the album page; they can only be downloaded by downloading the whole album. (You can play (but not download) them at the 52fs: Extras page.)

As well as hidden tracks, the white album comes with full lyrics, notes on the songs and even the odd picture. A few brief comments on the songs:

A maiden that is matchless is sung simultaneously in modern English and Middle English, with a flute part copied from Dolly Collins’s arrangement.
The holly and the ivy is not a pagan song. This was my first attempt at four-part harmony.
Shepherds arise More harmonies. Sing! Sing all earth!
A virgin most pure Another Dolly Collins arrangement (I think), this time on C whistle. Vocals in two-part harmony, partly my own.
In Dessexshire as it befell Yet more multi-part singing, plus a multi-part melodica break. I think the arrangement really works, and the song’s well worth hearing if you don’t know it. A strange and rather creepy piece of work, set on Christmas Day.
Poor old horse An old “house visiting” song, slowed down and given another massively overdubbed arrangement. Also features a quick burst of the old dance tune “Man in the moon”.
On Ilkley Moor Baht ‘At Not actually strictly a seasonal song as such; scientists have established that it can get pretty parky on Ilkley Moor at any time of year. Four-part harmonies, sung as written with a few modifications for singability (I broke it up into five or six separate lines). Also features simultaneous translation for the hard-of-Yorkshire.
Come, love, carolling A contemporary religious song by the wonderful Sydney Carter. Drums, melodica and anything else that seemed appropriate; based on Bob and Carole Pegg’s version on the album And now it is so early.
The boar’s head carol is not a pagan song either. Second attempt at four-part harmony.
Gaudete This was more or less Folk Song #1 for me, thanks to Steeleye Span’s appearance singing it on Top of the Pops, so it’s always had a special place for me. More harmonies, of course.
The King Another multi-part song learned from Steeleye Span, although I wrote these harmonies myself.
In the month of January Just one vocal track on this one, taking on one of those really knobbly traditional melodies.
The Moving On song Not a massive arrangement – just drums, melodica and a couple of brief harmony vocal lines – but the texture of the (heavily-processed) melodica, the slightly over-fiddly drum pattern and the irregularity of the time signature make for an appropriately edgy, claustrophobic atmosphere. I like the way the melodica’s come out, but I’ll probably never be able to do it again – I was trying for something much simpler.
The January Man he walks abroad in woollen coat and boots of leather… What a song.

Share and enjoy! Ho ho ho.

For he is good to think on, if a man would express himself neatly

My cat lies to me. I find this interesting.

My cat – our cat, rather – generally eats tinned food, but occasionally we give him cat biscuits. Not very often, and certainly not often enough as far as he’s concerned. He knows where they’re kept; when hungry will often sit in front of the biscuit cupboard giving it meaningful looks, even if he’s got a bowl full of food.

That’s not the interesting thing, though. What’s interesting is that, on several occasions, he’s sat by the back door and mewed to be let out, only to turn back and head for the biscuit cupboard when I open the door for him. The thinking is fairly straightforward, if you think of it as thinking – it goes roughly like this:

This‘ll get his attention!

But there’s an awful lot going on under the surface, particularly when you think that we’re dealing with a cat. How do you get to that thought? Or, if ascribing thoughts to a cat is a step too far, how do you get to that action? It seems to me that any creature capable of doing the back-door feint would have to go through something like this series of steps:

  1. Move (instinctively, or at any rate unreflectively) towards the back door when wanting to go out
  2. Move (unreflectively) towards the biscuit cupboard when fancying a biscuit or two
  3. Observe that move 1 is usually successful
  4. Observe that move 2 is usually unsuccessful
  5. Analyse events involved in successful outcomes to strategies 1 and 2
  6. Identify common factor, viz. getting a human’s attention
  7. Reflect on goals of move 1 and move 2
  8. Identify common intermediate goal of getting human’s attention
  9. Redefine move 1 as move which achieves intermediate goal
  10. Plan to make move 2 more effective by preceding it with move 1, thus getting human’s attention before expressing interest in biscuit cupboard

I don’t know about you, but that strikes me as pretty sophisticated thinking, particularly if we assume (as I think we must) that none of these thought processes are conscious.

Cats: they’re brighter than they look. Or rather, they really are as bright as they look.

Relax and float downstream

Updated 25/11 (third section)

1. And though she feels as if she’s in a play

When I was little, I had an imaginary friend. He used to go with me wherever I went. I used to talk to him inside my head and I knew that he could hear me. And sometimes I’d make wishes, and if I was very lucky he would grant them for me. Then I got a bit older, and I stopped going to church.
- Jimmy Carr

One more religion post, this one inspired by Derren Brown.

On the Fear and Faith programme broadcast last week, Derren Brown induced what he presented as a counterfeit religious experience in an unsuspecting – and unbelieving – volunteer. After talking to her for fifteen minutes in a highly atmospheric church crypt, he left her alone; at this point she felt a sudden urge to stand up and was overwhelmed by a sense of unconditional love, together with the sense that it had been available to her all her life. Some time later, Derren Brown explained how the trick had been worked (with lots of quasi-hypnotic suggestion techniques on his part) and impressed on her that she had done it all herself: the emotion was real, but it was all her own work, with no need to invoke God to explain it.

My immediate reaction was that Derren Brown had completely missed the point of what he was doing. He’d essentially love-bombed this woman, making her feel happy and important; then he’d talked to her about experiences of awe and wonderment, and about the incomprehensible vastness of the universe; then he’d evoked feelings of being cherished, of your life mattering in some absolute sense despite only being an infinitesimal speck within the vastness of the universe. (And then he’d left her alone in a church.) Whatever other NLPish cueing techniques he’d used, just by his manner and his choice of topics he’d steered this woman into feeling ‘religious’ emotions – but they’re emotions which are entirely real, valid and appropriate. You do matter; the universe that surrounds you (in time and space) is vast and incomprehensible; and there’s no better reaction to the massive contradiction between those two facts than a sense of wonder and gladness. So we’ve proved… what?

According to Derren Brown, we’d proved that it was possible to have a religious experience “without God”. Now, Derren Brown was a born-again Christian at one time, so to some extent he knows whereof he speaks, but this strikes me as a bizarre overstatement. For anyone who believes in God, God is in the vastness of the universe, as well as being in that sense of your existence being important and in your reaction to all this. In short, God was there all along. When it comes to the experience of believing in God, on the other hand, that sense of a rush of unconditional love is quite a specific experience; it’s certainly not something believers routinely feel, between one Sunday and the next. What matters in practice is not feeling that God is talking to you, but feeling that you’re trying to talk to God.

Derren Brown (and Jimmy Carr, also an ex-fundamentalist) would probably say that all this openness and doubt and silence is all very well, but it’s not religion as we know it; I could be talking about yoga, or Buddhism at a pinch, but not Christianity. Christianity, surely, is all about knowing that God exists, knowing that God has a plan for you and knowing that God is talking to you from day to day; this is precisely the background faith that Derren Brown’s volunteer didn’t have, which is why we can say that she had her experience ‘without God’.

I don’t know. It strikes me that the knowledge which comes from faith, however certain, is very different from the knowledge that comes from living in the world. Faith is always in dialogue with doubt; if faith-based knowledge was entirely free from doubt it would just be knowledge.

Or is it that simple?

2. And ye shall know the truth, and the truth shall make you free

Someone came up to me, and he said to me
I know something that you don’t know.
I was captured by this stance, I gave a second glance
And said “I’ll follow where you go”
- Peter Perrett

This sense of faith as always being accompanied by doubt is what I was getting at in an earlier post about religion. Talking about the idea of religion as a comforter, with particular reference to death, I said

And in any case, just how much comfort can those ‘comforting’ beliefs really be, even if you manage to believe them? I’ve been to a couple of funerals where the continuing existence of the departed was emphasised heavily, and I felt that every restatement was prefixed by a tacit This certainly doesn’t appear to be true, but by God, it’s worth at least trying to believe.

I wonder just how much comfort that comforting knowledge could be – or perhaps what kind of comfort. In the watches of the night, surely the happiest clapper would find it hard to feel any real confidence that God would sort it all out. At my father’s funeral, the vicar told me my father still loved me. I didn’t believe him, but if I had it would just have given me something else for doubt to grapple with. I think what’s healthy and psychologically adaptive about religion is a kind of turning towards something vast and incomprehensible, in a spirit of humility and trust: there’s stuff in our lives that’s beyond understanding, we don’t have to sort it all out, it will be all right. Perhaps explicit religious beliefs – such as the professed belief that my father did still exist, despite all the evidence to the contrary – are a kind of mental exercise: here’s something vitally important to you which absolutely doesn’t make sense, but go with it and it will be all right.

Faith, I think, is always in a dance with doubt. But there are different kinds of dance, and some of them are less healthy than others. Ever since the first of these posts on religion I’ve been thinking I should link to this post; I read it seven years ago and I’ve never forgotten it. The mentality I’m describing goes something like “Something appalling has happened; God let it happen; we can’t understand it but it’ll all make sense some time, and it’ll be all right eventually“. What Justin described in that post is more like “Something appalling has happened; God let it happen; that’s the kind of thing he does, he could do it to us again any time, and we don’t deserve any better“. In other words, instead of opening to grief and bafflement in a spirit of trust, it closes down that grief and makes sense of it – and it makes sense of it by calling it a good thing and bowing down to whatever inflicted it. Doubt is in the dance only to the extent that it’s being emphatically trampled on by faith as it strives for certainty – and since the only things certain in life are loss and death, a God of loss and death is what faith gets pinned on. This is a life-denying, self-abasing, anti-human attitude – and if that was reliably what religion meant, I’d have nothing to do with religion.

Or there’s another form of dance with doubt which can also go under the name of religious belief, although this one takes other forms as well. It doesn’t usually last very long, either; it’s a bit of a young person’s game. I’m thinking of the kind of faith which enacts that doggedly repeated repression of doubt, but in the name of hopeful certainties: as if to say, I would ask questions about eternal life and the Creation and everything, but look – shiny! Everything‘s shiny! The closest I’ve come to this is when I was a novice conspiracy theorist; I fell for the old once you have eliminated the impossible trick over and over again, and found myself clutching some remarkably shiny truths about what was really going on. You can go down quite a rabbit-hole this way, and to be honest it can be quite a trip: the moment that scepticism says Can this be right? It doesn’t fit with how I think the world works, faith counters with Ah, but maybe that’s not really how the world works…, and you’re off again. Believing you’ve tapped into something that’s at once true, comprehensible and important is a heady experience, and letting doubt in on it seems like no fun at all. This kind of faith essentially shouts doubt down, or asks it to wait outside; once the dancing starts properly the faith is liable to collapse.

3. Hold on to that feeling

Sometimes you confuse me with Santa Claus
It’s the big white beard, I suppose
- Elvis Costello

I suppose that combination of true, important and comprehensible is what both these forms of belief share: they both offer truths that make life matter and make it understandable. To put it another way, they both present believers with the contradiction between our belief in our own specialness and the vast indifference of the universe, and they both resolve it. One worldview pictures God as the boss of the world, and from this perspective there is no mystery about why your little life has been trampled on: God did it, because that’s what he does, and he does it because he can. (Besides, who’s to say that you deserved anything better?) The other has God as a Father Christmas figure, with gifts for all the good boys and girls: your life can be as blessed as you feel it should be, and it will be, in the future. Just be good, be patient and don’t stop believing…

It was interesting seeing Derren Brown explaining the characteristics of the religious belief he was going to induce; interesting, as well, seeing how animated he became as he talked about ideas like that of God looking down on each one of us and intervening in our lives. I felt that he, having been a born-again Christian, was harking back to a young person’s religion stocked with shiny, doubt-repressing beliefs: the kind of religion which would interpret the volunteer’s experience by saying yes, that definitely was God’s love you felt, no, it couldn’t have been anything else, yes, that definitely was God actually talking directly to you, absolutely definitely, I wouldn’t consider any other explanation for a moment (and repeat).

If you’re trying to ward off that kind of religious belief, then saying “those are real emotions you’re feeling, but God didn’t produce them” makes a degree of sense – it certainly lets some light in. But if religion is an orientation to the baffling vastness that somehow contains our incomprehensibly significant lives, and if God is a name for that vastness and some people’s experiences of it, then what Derren Brown’s volunteer experienced wasn’t a fake religious experience at all – it was the real thing.

One final analogy, which came to me after I’d read a passage from (bizarrely enough) Derren Brown’s book Tricks of the Mind. Despite (or because of) being an alarmingly proficient hypnotist himself, Derren Brown is very concerned about the ethics of hypnosis, believing that it can do a lot of harm in the hands of untrained or thoughtless users. He argues that it’s essential to talk hypnotic subjects down, so that when they leave they’re in no doubt that they’re no longer hypnotised. You can see his point. A mysterious influence you can’t understand – seemingly preventing you from getting up, lowering your arm, remembering your own name or whatever – is all good fun in a theatre, but it’s not something you’d want cluttering up your mind once you’re back in the real world. What interested me was the comparison which he drew with magic – where, clearly, audiences do experience something they can’t understand and go home without having it explained. Quote:

it seems wrong that the argument that ‘hypnosis isn’t real’ should absolve the hypnotist of all responsibility towards the welfare of his participants. If a hypnotist were able to say to his audience, ‘If you come up, please just play along with everything,’ it might be argued that the subjects should then be responsible themselves. However, given that he is going to manipulate, bully or cajole rather vulnerable people into anything from playing along to really living out what he suggests, and in a way that might be very confusing or unsettling for them, there is a sense in which one should not just immediately decide that he can walk away from any duty of care.

Now perhaps one might argue that according to that logic, a magician should then be held responsible if a participant in a card trick takes the magic way too seriously and loses so much sleep following the performance that he develops an illness. However, this would be a very unusual case, and clearly a reasonable person would not be expected to react in that way. In our hypnosis scenario, though, it is more understandable that a participant might leave the show troubled if handled unprofessionally.

I think what’s troubling about hypnosis, if not handled properly, is that it puts the subject through something which seems entirely real but doesn’t make any sense – and then leaves the subject to try and make sense of it. Magic does something similar, except that it tells the people who experience it, loud and clear, not to worry about making sense of it: it’s just magic. Leaving a hypnotic subject suspecting that she might still be subconsciously under another person’s control – or for that matter leaving her believing that hypnosis has transformed her life for the better – is very much the way those two narrow, doubt-repressing forms of religious belief work. Derren Brown’s scruples about the correct use of hypnosis, as well as being very much to his credit, are of a piece with his opposition to religion, as he sees it. The irony is that the magician – performing the impossible and then saying, You’ve seen what you’ve seen, don’t worry about making sense of it – is creating something much more like what I’d consider a religious experience.

Made a move for chart position

Updated 8/11 (Barnett, Hastings)

Andrew O’Hagan’s been thinking – and talking to people – about the Savile scandal and the larger cultural conditions it grew from. His piece is a bit overlong and, I think, under-edited, but it’s genuinely insightful and troubling for all that. I shall be thinking about this for a while:

The public made Jimmy Savile. It loved him. It knighted him. The Prince of Wales accorded him special rights and the authorities at Broadmoor gave him his own set of keys. A whole entertainment structure was built to house him and make him feel secure. That’s no one’s fault: entertainment, like literature, thrives on weirdos, and Savile entered a culture made not only to tolerate his oddness but to find it refreshing.

And, in particular, this:

Let’s blame him for all the things he obviously was, and blame him for a host of other things we don’t understand, such as how we love freaks and how we select and protect people who are ‘eccentric’ in order to feed our need for disorder. We’ll blame him for that too and say we never knew there would be any victims, when, in fact, we depend on there being victims. Savile just wouldn’t have been worth so much to us without his capacity to hurt.

I don’t know quite what that last sentence means and I’m not sure O’Hagan does either, but I’ve got a horrible feeling it’s true.

A week after writing the above, I saw this from Anthony Barnett which I think joins some of the dots. Barnett starts by musing on the sheer repellence of Savile – the obvious, in-your-face excessiveness of his get-up and demeanour -

Why did ‘we the public’ admire a blatantly bad man? You only needed to look twice at his clothes, his glasses, his conjuror’s apparatus of decoys and diversions, his bling and his shell-suits and cultivated white-blond hair to sense he was repellent. Imagine getting onto a bus filled with Jims grinning with his arrogance and self-aggrandisement.

I’ll come on to “we the public” in a minute – that assumed ‘we’ is one of the weak points of O’Hagan’s piece as well – but I do think this is a real question. Why did people not only tolerate but celebrate such an insistent display of preening arrogance? Did nobody ever ring up and say “About that PA, Jim – maybe something low-key this time, not so much of the gold and leave the cigars at home”? It doesn’t seem very likely – the peacocking was part of what people wanted. Why? Barnett suggests an interesting answer and makes a couple of interesting parallels:

It was thanks to a form of celebrity that shares and rejoices in the whiff of wickedness that surrounds misogyny. The cult (and love) of chauvinist celebrity forgives misdemeanours ahead of time. It encourages men especially to project longings to be outside the law onto the figure of fame. The media may provide the cult’s priests, but the congregation is compliant and provides the energy. Today celebrities seem to build entire reputations on ‘getting away with it’ as ‘we the public’ continue to collude in a worship of strong and powerful men who break the rules.

Bingo – Jimmy Savile’s appeal wasn’t acting like an infantile megalomaniac, it was acting like an infantile megalomaniac and getting away with it. People around him knew that the treatment he was getting was against the rules; they also knew nobody would ever bend the rules for them in the same way, and deep down they wished somebody would. So if he could get away with it, well, good luck to him.

There’s something quite deep-rooted and weird going on here. Jerry Sadowitz’s 1987 crack about Savile – “That’s why he does all the fucking charity work: it’s to gain public sympathy for when his fucking case comes up.” - hints at it but (perhaps surprisingly) doesn’t go far enough. Consider what we knew about Savile before he died:

  • What he was like: flashy, excessive, arrogant, with a one-note act centring on drawing attention to himself
  • What he did: charged large amounts of money for appearing and doing the act
  • How he did it: his own way, for his own price (I don’t get out of bed for less than £10,000) and whatever side-benefits he felt like
  • What he did it for: charity, in particular children’s charities

He demanded attention, to himself as himself – look at me being me, doing the me thing that I do! He was loved and cared for and had to do nothing in return apart from being him, doing the being-him act. He did it however he wanted to, and everyone else had to fit in around him. And he did it for unarguable good causes – not only good causes, but perhaps the one type of good cause that everybody, however hard-headed or mean-spirited, can sign up to. (Famine in Africa? Charity begins at home, I say. Cancer research? Can’t fight Fate, we’ve all got to go some time. Terminally-ill children? Ahhh…) To be loved unconditionally while being an all-powerful egomaniac, and at the same time to be undeniably good – it’s genuinely infantile thinking; it’s how we all think of ourselves, or would like to think of ourselves, between about 18 months and 3 years. Never quite goes away, either – so when we see somebody dedicated to living that particular dream, there is a definite urge to bend the rules of the adult world so that they can get away with it. In its own terms it’s a virtuous circle – the star lives out the fantasy, so we bend the rules for them, so they get away with it, so we bend the rules some more… It’s only when the music stops that we find out what they’ve been getting away with – hence Elvis’s squirrel sandwiches NB check this or Imelda Marcos’s shoes. Or Savile’s victims. Needless to say, there can be an excessive, spectacular edge to the exposure phase as well, as if to keep the roundabout spinning just a bit longer – look what else he’s been getting away with! Which may tell us something about the Duncroft story.

We project our own thwarted megalomania onto stars, I’m suggesting, and part of the process is wanting them to break the rules and get away with it – and indulging them when they do. (You can tell a lot about how loyal a following somebody has from their reaction to brushes with the law. Compare and contrast: Pete Doherty and heroin, George Michael and cannabis, Richard Madeley and Tesco.) There are two worrying aspects to this. One is directly relevant to Savile, and relates to just what people get away with when they can get away with it. The good news is that most people, given the power to please themselves, don’t gravitate to cruelty and abuse – the dressing rooms of the stars aren’t one long Stanford Prison Experiment. But there’s always that possibility, particularly in a culture which positively validates male power over women. The 70s are a long time ago – they seem like a different planet – but that culture and that possibility haven’t entirely gone away.

The other issue, which is perhaps more immediate, concerns what happens when celebrity culture seeps into politics – which is where Barnett’s parallels come in. He points to an extraordinary piece in the Daily Mail, in which Max Hastings settles some old scores. Either that or he really hates his subject:

Most politicians are ambitious and ruthless, but Boris is a gold medal egomaniac. I would not trust him with my wife nor — from painful experience — with my wallet. It is unnecessary to take any moral view about his almost crazed infidelities, but it is hard to believe that any man so conspicuously incapable of controlling his own libido is fit to be trusted with controlling the country.

His chaotic public persona is not an act — he is, indeed, manically disorganised about everything except his own image management. He is also a far more ruthless, and frankly nastier, figure than the public appreciates.

Some Tory MPs are so panicked by their standing in the opinion polls that they have persuaded themselves that London’s mayor is the future. On the basis of what, some of us would ask. Boris Bikes on London’s streets? The peerless jokes and bonhomie and TV wizardry? Testimonials from ex-lovers who found him amusing in bed?

Ouch. But then, what’s behind his (clearly quite substantial) popular appeal, if all there is to the man is ruthless egomania and a few good jokes?

A friend said to me not long ago: ‘When will you understand that the reason the young are potty about Boris is precisely because he is not serious, because he treats the whole business of politics as a bit of a lark.’ This is true. I sat at a dinner table last week with three teenagers who expressed near-hero worship for the mayor, and said they could not care less when I suggested that he has less integrity than a City banker.

Boris Johnson was at the Tory conference yesterday for one purpose only — the exaltation of himself. This does not much matter when he is only Mayor of London, but would make him a wretched prime minister. He is not a man to believe in, to trust or respect save as a superlative exhibitionist. He is bereft of judgment, loyalty and discretion.

Answer: what’s behind it is… ruthless egomania and a few good jokes. Before Johnson was elected, Caitlin Moran semi-seriously advised voting against him because of the jokes – because, as she knows (and I know) making jokes to order is hard, time-consuming, attention-stealing work, and the time and energy he’d spent dreaming up “Ping-pong’s coming home” could have been much better spent on, well, politics. She missed what now seems obvious – that the jokes are actually a demonstration of how little of his attention Johnson devotes to politics, and that this is part of his appeal. He gets away with it – and a key emblem of getting away with it, in a society where men dream of power over women, is an element of unpunished sexual dominance and deceit. A Boris who didn’t cheat on his wife wouldn’t be Boris.

There’s another obvious political parallel, which Barnett mentions briefly in his conclusion:

the kind of racy ‘reality’ [Savile] personified was an early product of a twisted version of male celebrity culture whose misogyny continues to be celebrated and is seeping into politics.

That’s the bad news. The good news is that this isn’t Italy. There is also growing resistance to such behaviour in large parts of the public perhaps even more than within the elite. We are spitting out the presumptions and arrogance behind Savile and company.

Another political leader who acts like a celebrity; another leader with a ruthless devotion to his own advancement and little or no interest in the substance of politics; another political leader who spends his time making jokes, and let’s not even go into the sexual side of the story. It’s an unpleasant parallel, and I’m less sanguine about what it tells us than Barnett appears to be. If “this isn’t Italy” because of OpenDemocracy and the Guardian, Italy isn’t Italy either: there was ‘growing resistance’ to Berlusconi when he first came to power – in 1994 – and it’s been growing ever since. The trouble is, for every voter who’s genuinely appalled at the tax-dodging, the bunga bunga, the demonisation of the Left and the awful jokes, there’s another who thinks it’s all a bit of a laugh and Silvio’s a sly dog for getting away with it. And, in a democracy, you don’t need to get all the voters on your side; realistically, you don’t even need half. Barnett’s overestimation of the British public reminds me of Leonardo Sciascia’s comments on the Italian Communist Party’s attempts, in the 1970s, to evoke a ‘sense of the State’ in the ruling Christian Democratic party.

Neither [Aldo] Moro nor the party he presided over had ever had a ‘sense of the State’. The idea of the State … had probably only crossed Aldo Moro’s mind in his youth [i.e. under Fascism] … what has attracted and continues to attract at least a third of the Italian electorate to the party of Christian Democracy is precisely the absence in that party – an attractive and reassuring absence – of an idea of the State

Berlusconi offered an “attractive and reassuring absence” on a much larger scale – an absence of morality and seriousness, as well as ethics and political substance – but the approach is basically the same. Ego and cynicism, worn blatantly enough, can take you a very long way; it’s part of the deal we make with the godlike figures onto whom we project our powerlessness and compliance.

So there’s a ‘we’ watching the screens and harbouring dreams of power without responsibility – and there’s a ‘we’ who are “spitting out the presumptions and arrogance” and generally not taking it any more. I think they both exist, but I’m afraid I wouldn’t back the second against the first in a fight. O’Hagan evokes another ‘we’, silent and complicit:

And no one said, not out loud: ‘What’s wrong with that man? Why is he going on like that? What is he up to?’ He was an entertainer and that’s thought to be special. A more honest society brings its victims to the Colosseum and cheers. We agreed to find it OK when our most famous comedians were clearly not OK.

No one said… anything? Up to a point, Lord Copper.

2006
On Have I Got News For You, Ross Noble and Ian Hislop describe Savile as a disgusting sexual predator.

1999-2000
Widely-circulated fake Have I Got News For You transcript refers to Jimmy Savile having sex with twelve-year-olds.

1997
Val McDermid publishes The Wire In The Blood, featuring the character of “Jacko Vance”, a rapist and murderer.

Vance, a former athlete, hung about hospitals and toured towns in a show called Vance’s Visits – similar to the Savile’s Travels radio show.

Val, 57, said: “People often asked me where I had got the inspiration for the character. They never guessed it was Savile. For a start, Jacko is handsome and charming. I assume Savile didn’t recognise himself in that description.”

Val, from Fife, encountered Savile as a young reporter in 1977. She said: “He was a deeply unpleasant man. He was all smiles and laughter for the audience but as soon as we were alone, he was different. Savile was very much in the front of my mind when I was creating Jacko.”

1996
Irvine Welsh publishes Ecstasy, featuring the character of Freddy Royle, a necrophiliac.

Ecstasy is a collection of three short narratives; in the first, “Lorraine Goes to Livingston”, Freddy Royle was a chat-show host and “distinguished friend” at St Hubbin’s Hospital.

In one passage, Welsh writes: “The thing was, Freddy brought millions of pounds into the place with his fund-raising activities. This brought kudos to the trustees, and made St Hubbin’s Hospital a flagship for the arm’s-length trusts from the NHS. All they had to do was keep schtumm and indulge Sir Freddy with the odd body.”

1994
On Boxing Day, Chris Morris announces Jimmy Savile’s death [WAV] on Radio 1.

Jimmy Savile drops dead at the Stoke Mandeville Boxing Day bash – but the patients are far from mourning.

[Male voice]: “The majority, if not all of them, are extremely relieved that he’s now dead, although I suspect that some of them will be sorry that he didn’t suffer a great deal more.”

1990
Lynn Barber interviews Jimmy Savile: I was nervous when I told him: “What people say is that you like little girls.” Savile replies by denying that under-age girls are interested in him:

“A lot of disc jockeys make the mistake of thinking that they’re sex symbols and then they get a rude awakening. But I always realised that I was a service industry. Like, because I knew Cliff [Richard] before he’d even made a record, all the Cliff fans would bust a gut to meet me, so that I could tell them stories about their idol. But if I’d said, ‘Come round, so that I can tell you stories about me’ or ‘Come round, so that you can fall into my arms’ they’d have said: ‘What! On yer bike!’ But because reporters don’t understand the nuances of all that, they say, ‘A-ha’.”

1990
The “newly enknighted” Savile meets Prince Charles, as seen by Private Eye‘s “Heir of Sorrows”:

‘Fascinating. You really must meet Diana.’
Sir James looked momentarily puzzled. ‘Is that your daughter, Your Maj?’
Charles shook his head. ‘No, no, my wife.’
‘No thank you very much, Your Maj. Bit old for me. That’s not Jim’s scene at all.’

What could he mean? Sometimes these holy men spoke in riddles.

1987
Jerry Sadowitz calls Jimmy Savile a paedophile. (In fairness, giving Jerry Sadowitz credit for accurate muck-raking is a bit like crediting Nostradamus for accurate prophecies – you can find something if you look hard enough, but accuracy isn’t really what the act’s about.)

1986
“He knows the answers to life’s great mysteries,
He knows what makes Jim Savile tick.”

- Yeah Yeah Noh, “It’s easier to suck than sing”

Is that no one saying anything, or just no one saying anything “out loud”? And if it’s the latter, what would have constituted saying something out loud – publishing and being damned? Let’s face it, Savile wouldn’t just have seen you in court, he’d have seen you in the bankruptcy court.

I think what’s going on here is that a sense of collective complicity is being stretched to the point where it becomes perversely comforting. If we are all to blame, then we can do something about it; at the very least we can do better next time, and try to stop there being a next time. It’s a reassuring thought: never again! ¡no pasarán!

But what if part of the problem is that there is no “we”? What if some of us were spitting out the presumptions and the arrogance all along – or at least having very bad feelings about them – but our revulsion could only be articulated in undertones and behind closed doors? We might not immediately think of Savile as a powerful man – he didn’t make anything happen on a national scale, or on any but a very local scale – but when it came to his own affairs he was very powerful indeed, in several different ways. As well as being rich, famous and well-connected, he was charismatic, generally well-liked, personally forceful and – in his prime – physically strong; he wasn’t a good man to say No to. Once someone has acquired that kind of power, it doesn’t really matter what “we” think about him (and it usually is “him”); whether we view what he does with indulgent approval or with physical revulsion, he’s still going to get away with it. The “we” of O’Hagan’s diffuse culture of star-worshipping quasi-paedophilia is doing double duty, standing in for the “we” who are able to hold individually powerful people to account. And that “we” – that collective articulation of a popular sense of what’s right and what’s wrong – didn’t exist in the 1960s and doesn’t exist now; tabloid bouts of morality can perhaps be understood as a morbid symptom of its absence, fuelled by bad conscience (I never wanted him to get away with that!).

O’Hagan writes:

Child abuse is now a national obsession, but in 1963 it scarcely came up as a subject of public concern. That doesn’t mean it was fine back then and we were all better off, but it allows one to see how much the public understanding of what isn’t all right, or more or less all right, has changed. There have always been genuine causes for concern, but overall, nowadays there is an unmistakeable lack of proportion in the way we talk about the threat posed to children by adults. (It’s hard not to imagine that the situation has to do with a general estrangement from the notion of a reliable community.)

I think the first part of this is right, and for a much broader timespan than 1963 (which seems to have got into the argument here by way of the Larkin poem). The last, parenthetical comment is pointing to something important too. There are stars, there are individual purchasers or fans, and in between – what? What’s missing seems to be some kind of sense of society as a mechanism – or many different mechanisms – of feedback and accountability. O’Hagan comes close to arguing that Savile and people like him were acting in all our names. Perhaps it’s closer to the truth to say that some of us thought it was all a bit of a laugh – not so much “in my name” as “in my dreams”. As for the rest of us, we might have thought “not in my name”, but we had no way of saying it as a collectivity – and still, perhaps, don’t.

A moment worth waiting for

I’ve been pleased by the response to the last couple of posts, including the corrections to my theology (cosmogony?) offered by a couple of commenters – although they do tend to undermine the argument I was making, so I’m not going to update the post to address them. The second post – the one derived from comments on Crooked Timber – was a bit more uneven; I think there’s some good stuff there (if I say so myself) but also some stuff that deserved the challenges it got from the CT sceptics. I’m going to use this space to think about which was which.

1. The Good Bits (I think)

faith is a subjective response to an experience of the sacred; experiences of the sacred emerge out of collective practices of reverence; and collective practices of reverence are a way of publicly expressing a sense of the value of things that need valuing (birth, death, sex, society, the passage of time and so on). Faith is what you end up with, not what you start from.

I think this is true – more importantly, I think it’s the right way round – but it’s only part of the truth; that phrase expressing a sense of the value of things that need valuing is carrying an awful lot of weight, and getting a bit squashed by it. And what is the “value” of death? At a subjective level, surely, death is the greatest and most terrible challenge to everything we value, as well as being a universal and inescapable fact. “Expressing a sense of the value” is a coffee-morning phrase for something much more problematic and difficult – “the value of death” cashes in, roughly speaking, as she’s gone and I will never, ever see her again – and where the hell does that leave me?

But that’s also something people do with religion.

What do you do when the old man’s gone -
Do you want to be him?
And your real self sings the song -
Do you want to free him?

As if to say, you may be able to get clear of the “old man” (or you may not) – but even if you do you can’t simply let the “real self” out (and you may not want to). … The real oppressions & constrictions (psychological as well as material) and the utopian yearnings for absolute freedom and self-expression – we all carry all this stuff around, and we need somewhere to put it, be it a church, an analyst’s couch or an inflatable Stonehenge.

The thing is, I think that being human is deeply, deeply problematic – why wouldn’t it be? Thinking meat – what’s that about? House a reflective consciousness in a simian brain and you’re bound to get a bit of friction. I think churches are a good place to take those problems and work with them – although not the only place, obviously. Atheists would say that the fact that churches rely on a belief in God is a bug; I think the fact that they house practices that produce a belief in God is a feature, and an interesting one.

“Many ways to God” isn’t some kind of “wouldn’t it be nice if things were nice” rationalisation – it’s what lots of people believe. Lots of devoutly religious people, who sincerely believe that Jesus Christ was the son of God – but who don’t find it necessary to believe that God would have damned most of humanity for worshipping somebody other than Jesus, and therefore leave open the possibility that God might have revealed himself in other ways to other people. … We don’t have any business asserting that our beliefs (“Jesus was the son of God”, etc) are factually correct. We have no way of knowing whether they are factually correct or not; we’ll only know for sure when we meet God, by which time it’ll be too late to argue. So we stick to [saying that non-believers are] “incorrect as far as we can see from our imperfect vantage point”.

The idea of holding a belief without asserting that people who denied that belief were wrong provoked a lot of resistance, but I think it’s still a valid point. Saying “I believe X, but I’m not going to say that X-deniers are wrong” is a way of saying that, in a particular (and important) area, it’s not up to me to decide what’s correct or incorrect; I may never know what’s correct or incorrect, or if I was told I might not understand. It’s a Horatio moment – a way of saying that there are more things in heaven and earth than our philosophy dreams of.

One of the most valuable things religion does, I think, is to confront the believer with something they cannot possibly understand. What this is is secondary; what’s important is the feeling of being at the limit of your understanding and being at peace with that. Because life will throw things at you that permanently exceed your understanding, and the ability to be at peace with them will serve you well.

Believing lots of things exposes you to exploitation – believing that your hard work will pay off, believing that your partner loves you, believing that you’re making the right spending decisions. And yet we get through the day. In which context, I like the idea that the word ‘faith’ would have been better translated as ‘faithfulness’. That to me is what ‘faith’ is about – an orientation of trustful commitment towards… something. Something outside ourselves.

This also provoked a bit of resistance, mostly along the lines of “I trust the people who have given me good reason to trust them”. (Yes, I remember being young and in love.) Maybe some people do go through life up- and downgrading everyone they deal with, divulging a bit more or a bit less personal information, allowing themselves a bit more or less spontaneous emotional engagement. I think that sounds like Hell, and I don’t think it’s the way most people live. The belief in God is a lot like the belief that your partner loves you, or that the people you work with aren’t going to stitch you up – it’s not so much a belief as a commitment to choose to believe, an orientation of trustful commitment, extended in the case of religion to the universe and all that surrounds it. And I think there’s something to be said for that.

2. A little light pushback

“Religion certainly does provide comfort to a lot of people in difficult situations, but does that make it a good thing? Follow the ‘opiate of the people’ analogy – opiates bring vital relief to people in severe pain, but we don’t think being a junkie is a good way to live your life. Perhaps religious beliefs are good to have when you need a comforting illusion, but they’re illusions that should be abandoned as soon as you feel mentally strong enough.”

My answer to this one is that I don’t think religious beliefs are comforting in any easy sense. The most comforting thing I heard from anyone in religious clothing after my mother died was something along the lines of “It’s time to let go” – as if to say, You’ve run into a wall that you can’t get past; perhaps you should turn round now and go home. (Not that going home was just a matter of going home, if you see what I mean.) I don’t think anybody told me my mother was watching over me or that I’d see her again, and if they had I wouldn’t have believed it. Religion, for me, is something that takes you to the very edge of abandonment and despair, and stays with you there.

And in any case, just how much comfort can those ‘comforting’ beliefs really be, even if you manage to believe them? I’ve been to a couple of funerals where the continuing existence of the departed was emphasised heavily, and I felt that every restatement was prefixed by a tacit This certainly doesn’t appear to be true, but by God, it’s worth at least trying to believe. Anyone committed to believing that their departed parent was having a high old time up there, strumming a harp and chatting with Einstein, would also be committed to believing that something that appeared to be unbearable and incomprehensible actually made sense, except that it made sense in some way that couldn’t be understood either. Which isn’t that comfortable a place to be – in fact, I think it’s pretty much on the edge of abandonment and despair. But with a sense of not being alone there.

“Is it really a good thing to be confronted by something you can’t possibly understand? Doesn’t that associate religion rather strongly with ignorance and lack of curiosity? For that hit of blissful non-comprehension, wouldn’t it be quicker just to believe that God made the world in seven days? Never mind that you don’t understand how it happened – it’s a religious truth, so it’s meant to be incomprehensible!”

I’ll take this one on: yes, it is a good thing to be confronted by something you can’t possibly understand. It’s good to look at something you don’t understand and realise you don’t understand it (as distinct from thinking that if you don’t understand it it must be nonsense). It’s also good to learn more and understand more. But there will always be something you don’t understand, and there will always be some things you can’t understand. I think that’s a good thing to recognise. The alternative is to think that there isn’t anything that, in principle, you couldn’t understand. That might work for the law of torts or the Keynesian multiplier, but it wouldn’t do you much good with “why does everything die?”

“Fine, but you don’t need religion for that – just a reasonably well-developed sense of wonder and humility.”

Never said you did need it – just that religion is, often, a carrier of those things.

3. The less good bits

Sometimes what you’re being asked to believe will seem to cut with the grain of your experience of the religion, other times it’ll seem daft, but if the experience of religious practice and community are working for you you’ll tend to go with it. … Of course, in some churches the package of beliefs you’re asked to take on board will included some harmful and dangerous stuff.

That ‘of course’ is doing rather a lot of work – or perhaps it’d be truer to say that it’s avoiding rather a lot of work. There’s a real problem here. I argued that religious ‘truths’ aren’t incompatible with scientific fact, because where they make factual propositions they’re not presented as law-like statements. Nobody’s saying that people who die generally rise again after three days, quite the reverse – Christians believe that Christ’s resurrection was miraculous precisely because it was an exception to the laws of death and decomposition. And it’s these localised, miraculous exceptions – at most – which believers are asked to commit to, and which they grapple with more or less effectively. But there’s no particular reason why the package of religious ‘exceptions’ should be limited to those relating directly to the life of Jesus. What about the plagues of Egypt? What about Aaron’s rod? What about God speaking to Abram? Come to that, what about the creation of the world in seven days? We know that this isn’t how the cosmos looks as if it works, but after all, this is an exception to all those rules…

I haven’t got an answer to this one, except to say that there’s nothing in Christianity to stop you travelling relatively light. Figurative interpretations of the Bible have a much longer history in Christianity than literal readings; by the time you’ve finished grappling with impossible beliefs and finding ways to believe in them, you may well come to the conclusion that God worked in his mysterious way through the Big Bang, the Nile flooding cycle and various other things, and generally kept his powder dry for the big performance in 30 AD. (In the immortal words of Wikipedia: “30 April – After being condemned to death by the Jewish court known as the Sanhedrin Jesus of Nazareth is crucified at Golgotha[citation needed]“.)

I just don’t see the bright line between philosophy and religion  – or between religion and any other set of ideas having to do with morality or ethics. People who believe in God think that a belief in God is a good way to orient your life. That doesn’t mean they don’t believe in science or rely on divine intervention to boil a kettle – it means they don’t believe that the fact that science works entails that a belief in God is not a good way to orient your life. And surely you could say the same of any philosophical position – it’s how you think the world is, irrespective of whether your daily life supplies any evidence of it.

The weasel words here are “your daily life”. Anyone who believes in the ultimate overthrow of the bourgeoisie by the proletariat, say, is unlikely to find much evidence for the underpinnings of this belief in their daily life, but if they follow the news for more than a day or two they’ll find enough. Whether evidence of God working his purpose out will also be apparent is more debatable. Perhaps the point that needed developing here was what was meant by a belief in God, or by orienting your life by way of such a belief. In other words, the question is not whether class struggle is a reality, but whether it’s a good framework for judging whether things are going well or badly. Similarly with a belief in God, and the beliefs that follow from it – above all the belief that humanity was made in the image of God, which makes each human life enormously valuable. And yes, you can find Christians campaigning against abortion on these grounds, but also against euthanasia, against the death penalty, against war, against poverty and political programmes that entrench it. Hence Christian Aid’s marvellous slogan, “We believe in life before death”.

34 Then shall the King say unto them on his right hand, Come, ye blessed of my Father, inherit the kingdom prepared for you from the foundation of the world:
35 For I was an hungred, and ye gave me meat: I was thirsty, and ye gave me drink: I was a stranger, and ye took me in:
36 Naked, and ye clothed me: I was sick, and ye visited me: I was in prison, and ye came unto me.
37 Then shall the righteous answer him, saying, Lord, when saw we thee an hungred, and fed thee? or thirsty, and gave thee drink?
38 When saw we thee a stranger, and took thee in? or naked, and clothed thee?
39 Or when saw we thee sick, or in prison, and came unto thee?
40 And the King shall answer and say unto them, Verily I say unto you, Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.

Again, you don’t need religion for any of this (and, again, I’m not religious myself) – you just need a belief in people. But religion is, often, a carrier of that belief.

For me, religion is a way of dealing with the incomprehensible – and sometimes incomprehensibly terrible – facts of human life, a way of honouring things in life that seem to need honouring, and a way of giving due respect to people. Or rather, it’s one particularly specialised example of a family of cultural practices which offer ways of doing these things. It’s not a bad thing.

Falling to bits, gloriously

This post at Crooked Timber sparked an interesting and only intermittently acrimonious debate about whether religious belief is inherently irrational or self-contradictory, and how best to combat religious reactionaries. I got stuck in and ended up essentially playing a Christian on the Internet, despite not being one in real life. It was an interesting debate, though, and really made me think. Here are some of my comments. (Italics are other people’s comments; I’ve included links to their original comments as well as to mine.) Discussion centred on four inter-related topics:

  • the relationship of faith and practice (and by extension the relative importance of the two)
  • the truth-status of religious claims (if someone believes that Jesus was the son of God, are they committed to believing that someone who doesn’t believe that is wrong?)
  • whether beliefs grounded in faith set themselves above rational argument, so that a Christian can always end the debate by saying “it’s what I believe“; and
  • whether reactionary claims made in the name of religion are a good reason for arguing against religion, or (as I argued) a good reason for not doing so.

It’s a bit of a comment-dump – or rather, it is a comment-dump, slightly rearranged – but parts of it may prove interesting.

1. Who are these people and why do they do it?

I’ve been playing with the idea that religion is a practice first, a faith second and a set of factual propositions third. First, you commit yourself to a certain way of living, a certain set of practices (even if that’s no more demanding than going to church once a week and saying ‘Yes’ if somebody asks if you’re a Christian, it’s still a different way of living). Second, in the context of those practices and in the company of others who share that commitment, you experience (or learn to experience) a sense of the sacred, of reverence for something numinous. Third, as part of the work you do to maintain that way of living and recreate that experience, you submit yourself to the mental discipline of believing what your church asks you to believe. Sometimes what you’re being asked to believe will seem to cut with the grain of your experience of the religion, other times it’ll seem daft, but if the experience of religious practice and community are working for you you’ll tend to go with it.The atheist’s view of religion often seems to centre on the third step, which is much the least fundamental. To the atheist’s question You believe that? a Christian will often answer “Well, I try to.” (Spufford: “Every Sunday I say and do my best to mean the whole of the Creed”, emph. added.) And believing religious propositions can mean grappling with them, trying to make them make sense, rather than simply believing them literally. (It was a Bishop of the Church of England who described the Biblical story of the Resurrection as “a conjuring trick with bones”.)

Of course, in some churches the package of beliefs you’re asked to take on board will included some harmful and dangerous stuff. But there’s plenty of room to argue against those beliefs while still taking religious practice & religious community to be valuable forms of social life and granting some validity to subjective religious experience. You won’t find any stronger opponent of reactionary right-wing Christians than a radical left-wing Christian.

Faith which wasn’t accompanied by the possibility of doubt wouldn’t be faith, it’d be (subjectively) certain knowledge – just as the belief that Christ rose from the dead wouldn’t be at all remarkable if we didn’t simultaneously hold the belief that resurrection from the dead is physically impossible.As for what faith is, as I said above I believe that religious practice comes first, the experience of collective reverence for the numinous second and commitment to factual propositions a slow & often troubled third – as if to say, if worshipping Jesus together with these people works as it clearly does (for me), then perhaps I should take what these people say about Jesus to be true, however impossible it seems. Saying that faith is wrong because it entails believing six impossible things before breakfast didn’t work on Tertullian and it doesn’t work much better now.

It does seem to me that we, human beings, long for meaning, and struggle with an inner chaos of unordered impulses, response and experience, a dream world, we’d like to control, order and (contradictorily) free and express

Reminds me of a couple of lines from Jethro Tull which have lodged in my mind (potency of cheap music and all that) -

What do you do when the old man’s gone -
Do you want to be him?
And your real self sings the song -
Do you want to free him?

As if to say, you may be able to get clear of the “old man” (or you may not) – but even if you do you can’t simply let the “real self” out (and you may not want to). I think that’s psychologically quite powerful – and it reminds me in turn of Roy Bhaskar’s strictures on the image of “a magic transportation into a realm free of determination, as imagined by both utopian and so-called ‘scientific’ socialists”, to which he counterposed a project of “transition from unneeded, unwanted and oppressive to needed, wanted and empowering sources of determination”. The real oppressions & constrictions (psychological as well as material) and the utopian yearnings for absolute freedom and self-expression – we all carry all this stuff around, and we need somewhere to put it, be it a church, an analyst’s couch or an inflatable Stonehenge.

This is where Christians and their defenders really annoy me. Sure it is easy to poke holes in the arguments of naive rationalists, but the validity of those criticisms do not justify the jump to “Jesus Christ is our Lord and savior”.

I’m defending Christians, but I’m certainly not advocating that anyone convert – I’m not a Christian myself. I think religious practice can play a valuable part in people’s lives, just as practices like living in a commune, hanging out with artists, writing music, political campaigning, folk dancing and psychotherapy can do for other people. I think all these things can get you to somewhere similar, and that it’s somewhere worth going to; I don’t think you need to be religious to have a “religious experience”. I do think that being religious can be a way of getting there, and that for a lot of people it’s as good as any other, or even better.

the atheist asks why faith and you reply … what exactly?

My one-sentence answer is that faith is a subjective response to an experience of the sacred; experiences of the sacred emerge out of collective practices of reverence; and that collective practices of reverence are a way of publicly expressing a sense of the value of things that need valuing (birth, death, sex, society, the passage of time and so on). Faith is what you end up with, not what you start from.

Now, you can live a happy and productive life without ever going to Midnight Mass, and you can be a devout believer and a horrendous, miserable fuck-up. You can get through life perfectly well without publicly giving value to the big things in life; you can give value to the big things in life in non-religious ways which don’t ‘feel’ sacred; you can get an experience of the sacred without being formally religious. A world without religion wouldn’t be a world without any of the valuable things currently borne by religion. But those things are real, and they are borne by religion.

it seems to me inherently dangerous (because it exposes you to exploitation),

Believing lots of things exposes you to exploitation – believing that your hard work will pay off, believing that your partner loves you, believing that you’re making the right spending decisions. And yet we get through the day. In which context, I like the idea that the word ‘faith’ would have been better translated as ‘faithfulness’. That to me is what ‘faith’ is about – an orientation of trustful commitment towards… something. Something outside ourselves.

Any Christian believes that God sees more and knows more than any human being, including him- or herself. All statements about God are approximations; prayer is an orientation to something unknowable, something outside ourselves. So the truth of a statement like “Jesus is the son of God” is, more or less by definition, one element of a greater truth that we don’t and, as human beings, can’t fully comprehend. For all we know, someone could go through life denying the divinity of Jesus and yet picking up more bits of that truth than a staunch Christian. If that’s a possibility, what sense would it make to say that they were wrong to say Jesus wasn’t the son of God? Christians believe they understand a bit of God’s nature and they believe they’re genuinely oriented towards it, but they don’t know.

The emotional response that the religious experience promotes, on the other hand, is not to feel sad, but rather to feel guilty. To feel like you are a bad, terrible, awful fuck-up of a person, who deserves, who needs to be punished. Any mercy here is, in fact, the tyrant suspending the doom he himself has pronounced.

First off, you’re clearly talking about Christianity specifically, not religion in general. More importantly, while I won’t deny that some churches do put a heavy stress on the experience of guilt, I think it’s actually a distortion of the Christian message, which is much more about forgiveness. Paraphrasing from memory, Rowan Williams said once, “People think that when they leave religion behind they’re leaving sin and guilt, but if you look at the papers you see that sin and guilt and condemnation are alive and well. What people leave behind when they turn away from God is forgiveness, the sense that our sins won’t burden us forever.”

Repentance/forgiveness/redemption is one of the most psychologically powerful and rewarding experiences we go through. And, if the person you’ve wronged will forgive you, so much the better, but what if they don’t – or what if you’ve lost touch, or they’ve died? I think a large part of the appeal of Christianity is right there.

2. Do they really believe all that stuff?

God isn’t an empirically testable proposition, and neither is the Kantian categorical imperative or the emergence of the proletariat as a class-for-itself or the maximisation of subjective utility. I believe that people who find it useful to talk in terms of proletarian self-awareness could in principle find common ground with people who talk in terms of rational utility maximisation, given a lot of work and good will on both sides; I also believe that in practice that conversation tends never to happen, for good reasons. (What is impossible, on the other hand, is finding empirical proof that one set of ideas is the truth about reality and the other isn’t.) I don’t think religious belief is any different.

And yes, that does commit me to believing that common ground could be found between people who find it useful to talk in terms of God and people who talk in terms of a Godless universe, given a lot of work and good will on both sides. In practice, of course, that’s a conversation that really doesn’t tend to happen.

there are some fairly basic propositions that one would have to say “yes, that is correct” in order to be a Christian, and therefore that people who think something different are incorrect

Yes and no – i.e. yes to the first statement, no to the second. The idea that there are many ways to God is very widely held among religious believers – probably more widely than the idea that everyone has to convert or be damned. Even C.S. Lewis, when he wrote his version of the Day of Judgement in the Last Battle, has some believers in the Calormene death-god Tash end up being saved on the grounds that they would have believed in Aslan if they’d had the chance – and his theology wasn’t exactly liberal. Christians know that they’re saved by their belief in Christ, but they’re also aware (well, many of them are) that they don’t know the mind of God and hence can’t know that everyone else is damned.

Aslan judges some [Calormenes] – and not others – to have been good enough to be saved, which must mean that “worships Aslan” isn’t a necessary condition of “good enough to be saved”. In any case, the “sea of faith”/”many paths to God” mentality is very widespread among your actual believers.

Transubstantiation and the resurrection aren’t factual statements about how the world works – anyone who believes in them also knows perfectly well that this isn’thow the world works. That makes religious faith a very particular type of ‘denial’ – a belief that universal physical laws are/were suspended in this one place, or rather a commitment to holding that belief.

Some of the discussion here defends what religion could be, with beliefs that are inconsequential, metaphorical mush, and ignores what (Christian) religion more commonly is, an acceptance of certain claims as boldface “truth”.

Firstly, general physical truths – those fossils actually are relics of Noah’s Flood – are in no way core to Christianity; lots of Christians reject them totally. Reading the Bible literally is a very modern idea. Christ’s Resurrection isn’t really a “boldface truth” – everyone who believes it literally happened also believes it was a unique exception to the boldface truths of death and decomposition. Secondly, holding those two contradictory beliefs together leads directly into what you denigrate as “metaphorical mush”, which is much more common – much more normal – among Christians than you seem to think. If you were to ask a Christian (sympathetically) what they really think happened on Easter Sunday or on the road to Emmaus, I think you’d get a ‘metaphorical’ answer as often as not.

Of course, if you ask for boldface truths and to hell with the metaphor – yes, yes, never mind “in a kind of a way”, never mind “they had a real experience of something”, did he come back to life or didn’t he? – boldface truths are what you’re going to get. All the more so if your starting question was “are Christians so stupid or ignorant as to believe that a three-day-old corpse can come back to life?”

this “many ways to God” thing is trying to have your mushy cake and eat it.

“Many ways to God” isn’t some kind of “wouldn’t it be nice if things were nice” rationalisation – it’s what lots of people believe. Lots of devoutly religious people, who sincerely believe that Jesus Christ was the son of God – but who don’t find it necessary to believe that God would have damned most of humanity for worshipping somebody other than Jesus, and therefore leave open the possibility that God might have revealed himself in other ways to other people.Atheists on this thread seem to be asking whether it’s possible to be a Christian and have both a heart and a brain; when we answer Yes, they say Ah, but we’re talking about being a rigorously consistent Christian. Newsflash – there’s no such thing. Apart from anything else, rigorously consistent with what? There are two separate Creation stories, only one of which features Adam’s rib (the other has one of my all-time favourite lines from the Bible, “In the day that God created man, in the likeness of God made he him; male and female created he them”). The Gospels tell three versions of one set of stories and one radically different set of stories; you can’t believe them all, they can’t all have happened. And so on. The Bible, and a fortiori Christianity, isn’t about the-book-is-on-the-table statements of fact.

There are plenty of devout Christians, firm believers in the divinity of Christ, who nevertheless believe that not everyone who doesn’t believe in the divinity of Christ is damned. I can back this up, as well. God is omniscient, we’re not. God sees who he’s admitting to Heaven, we don’t. We can know that we’re saved, which gives us good reason to convert people if we can. However, we can’t know that everyone who misses out on the Good News is damned, or that there’s no other way for God to make himself known to them.

This is perfectly good Christian theology – as well as being a belief held more or less articulately by lots and lots of Christians – and it seems to me that it’s a substantial improvement on believing that everyone who doesn’t believe in Jesus is damned. That belief is a massive stumbling-block for anyone who believes in an omnipotent and benevolent God; in my experience it’s only embraced willingly by people who want God all to themselves and haven’t really got the point of the Gospels at all.

What you can’t logically do, if you believe that Jesus was the son of God, is think that other people believing something directly contradictory to that (ie that Jesus is not the son of God) are also correct. Ergo, they are wrong.

They appear wrong from our vantage-point, which we know to be imperfect. It would be the height of arrogance to say that they are wrong. Besides, what work is ‘wrong’ doing here? There’s been no objection to “I’m a Christian but non-Christians may do just as much good in the world”, or to “I’m a Christian but non-Christians may still be saved”. Why are those acceptable, and yet “I’m a Christian but I’m not going to say that non-Christians are wrong” is the badge of lily-livered pusillanimity that doesn’t deserve the name of religion?

We don’t have any business asserting that our beliefs (“Jesus was the son of God”, etc) are factually correct. We have no way of knowing whether they are factually correct or not; we’ll only know for sure when we meet God, by which time it’ll be too late to argue. So we stick to “incorrect as far as we can see from our imperfect vantage point”. Which is not a “mushy”, “woolly” or “uncommitted” position, although it does have a certain humility.

Do Christians believe it’s possible for people to return from the dead? No.
Do Christians believe that Jesus did return from the dead? Yes.

[NB when I wrote this I'd forgotten all about the doctrine of the bodily resurrection of the faithful at the end of days, and was thinking in terms of people coming back from the dead here and now. The physical impossibility of resurrection from the dead is the main point here.]

At the risk of C. S. Lewis-esque reductivism, it seems to me that this contradiction gives you a range of possibilities:

1. Christians are all too stupid to realise it’s a contradiction.
2. Christians don’t really believe it and are all lying when they say they do.
3. Christians are all batshit crazy, only all in the same or similar ways.
4. Christians go through a particular mental process which they call ‘belief’ or ‘faith’.

1. is plainly not true, 2. seems improbable, and 3. is basically a less flattering description of 4. And that mental process is what I’ve been describing.

3. You can’t argue with a Christian – or can you?

Once you have conceded that “I feel it in my heart”, “this makes emotional sense to me” or “this makes me a better person” are adequate justifications for the conclusion that there is a higher intelligence behind the universe or that souls exist, you have given away any intellectual tools to criticize somebody who feels it in their heart that homosexuals should be stoned.

This is an “I refute it thus” moment, surely. If this were the case, the only way a believing Christian could respond to the vilest things done in the name of Xtianity would be to say “who knows whether this is God’s will or not, let us pray”. Fortunately that isn’t the case – there is quite spirited debate among Christians about exactly what it is that God would have believers do in the world. You could say they’re being inconsistent, but I don’t think they’d agree – they’d say they’re witnessing as Christians, and arguing with fellow-Christians is part of that (as it has been since St Paul). You’d end up in the position of an atheist telling religious believers that they’re not religious enough.

you still have not shown me where religions can move beyond arguing, actually resolve their differences and decide on anything unless they refer to a set of otherwise universally recognized cognitive tools that, consistently applied, shows their very religion to be indefensible

I don’t believe “religions” do anything. I believe that Christians can have difficult, intense and productive discussions about what their shared faith requires them to do, and that those discussions can – with some difficulty – be extended to people who aren’t Christians. This obviously means that being a Christian involves more cognitive faculties than direct reference to inward conviction. I don’t accept that using those cognitive faculties would necessarily involve those Christians becoming atheists, for the simple reason that it plainly doesn’t: you can be a Christian and an intellectual. And I don’t think this should surprise us, any more than we’d be surprised to discover that an intellectual can also be a phenomenological existentialist.Your rationalism doesn’t do the work you want it to. You can show (that word again) that pi doesn’t equal 3 and that crop rotation makes sense, and argue those propositions down to number theory & molecular chemistry respectively. You can’t show that “religion is not based on anything more than fantasy”, any more than you can show that to be true of phenomenological existentialism, Kantian jurisprudence or revolutionary anarchism. You can certainly show that you can’t ground religion in scientific enquiry, but nobody here is saying that you can.

Reason is good for these areas where I use it daily, but not for these my cherished beliefs*. Why? Because that is different. It just is

Christians do use reason, they just don’t apply the scientific method to the foundation of their beliefs. Neither do philosophers, political thinkers or anyone else who thinks ethics and morality are worth arguing about. You can’t find the Holy Spirit with an ammeter; you can’t find class consciousness or the Husserlian epoche that way, either. It doesn’t make those things any less real and interesting & worth arguing about, for those who think they’re real and interesting & worth arguing about. (Those who don’t are free to argue about other things.)

I explicitly wrote that there are indeed ways of knowing, if you will, that aren’t scientific in the narrow sense, such as mathematics, deductive logic, moral philosophy, economics, history, art history, etc.

But the thing is, these areas all have more or less well-defined ways of deciding when a proposition is dead wrong.

I just don’t see the bright line between philosophy and religion in this respect – or between religion and any other set of ideas having to do with morality or ethics. People who believe in God think that a belief in God is a good way to orient your life. That doesn’t mean they don’t believe in science or rely on divine intervention to boil a kettle – it means they don’t believe that the fact that science works entails that a belief in God is not a good way to orient your life. And surely you could say the same of any philosophical position – it’s how you think the world is, irrespective of whether your daily life supplies any evidence of it.

There are lots of bad ways to be religious. Elevating revelation over reason is – not always but often – a very bad idea; cherry-picking scripture so as to give your own prejudices divine sanction is a bad thing to do; and treating God like a lucky rabbit’s foot (“please let the bus come now!”) is silly and childish. But it’s possible to argue against all of those things from a religious standpoint, and people do.

4. What about the bad guys?

the fact that religious claims are grounded in something other than rational enquiry doesn’t preclude believers from engaging in rational debate. Arguing that rational debate isn’t consistent with religious belief, and that Christians should therefore abandon either one or the other, is essentially criticising real Christians for not living up to your image of them. In real life the conversation between the liberal believer (L) and the homophobe (H) would go something like this:

H: “Jesus said we should kill homosexuals!”
L: No, he didn’t.
H: “Well, OK, not as such, but he did say [bullshit argument relying heavily on selective quotation]“
L: [Refers back to text and demolishes bullshit argument]
H: “But I just know that Jesus would say we should kill homosexuals!”
L: Well, I really think you ought to consider that you’re mistaken, because that goes against everything we know about Jesus. When did you start thinking this? Are you sure you’re not working out some of your own issues?
H: “But I’ve had a personal revelation! Jesus appeared to me and told me!”
L: I think you need help.

No different from the same kind of argument between a liberal rationalist and a rationalist homophobe – just replace Jesus with Darwin, say.

it remains true that large numbers of people, some of them important, do make truth claims about the state of the world based on their ancient poetry, and try to make life tougher for the rest of us on the authority of these claims. They need to be fought, and if the blowback from that fight upsets the nice club members who don’t actually cause problems for others, I’m genuinely sorry

Those people need to be fought with the “nice club members” on your side. If you’re fighting the NCMs as well, you’re fighting the wrong enemy.

What you need to do is pick your fights. If you’re fighting Creationism, fight Creationism. If you’re fighting sexism, fight sexism. In both cases you’ll have lots of Christians on your side. If you’re fighting the doctrine that Christ was born of the Virgin Mary… er, why, exactly?

Restrictions on abortion? Discrimination against gays? Lots of Christians oppose both. As for televangelists, there’s a reason people like Oral Roberts found their own churches. Campaign against what you want to campaign against, and I can pretty much guarantee that some Christians will be campaigning alongside you. Campaign against Christianity, and not only do you lose those potential allies, you get bogged down in side-arguments with people like me.

If you’re fighting televangelist scumbags, the many, many Christians who (a) believe in the power of prayer and (b) despise televangelist scumbags are not your enemy.

In his statement, [the Bishop of Down and Connor] doesn’t try to make any logical arguments we could address, he just states that abortion is against the teaching of the Catholic Church.

So we say, off the top of my head, “There is nothing in his statement to suggest that closing this clinic would result in better outcomes for women; women desperate to terminate a pregnancy will always find a way, and the closure of this clinic would simply help to drive abortion services back underground. I may not be qualified to argue Catholic doctrine with the Bishop, but I know something about the realities of women’s lives, and I am quite certain that more women – and more children – will suffer avoidable pain and misery if this clinic is closed than if it is left open.”

Or you could say, “Women have a right to abortion services on demand, and no old man in a silly hat is going to tell us otherwise just because some old book tells him so.” Which do you think would go over better to a largely Catholic audience? It’s all about picking your fights, and picking your enemies.

Lots of Christians do believe horrible and hateful things. Somebody once told me that Mother Teresa would be eternally damned unless she converted to the right form of Christianity before she died, the form of Christianity that had got her out into the slums of Calcutta not being the right one. On one level that’s angels on the head of a pin – what happens after anyone dies has never really interested me* – but it could have real effects; anyone who thought having the right beliefs was that important would presumably prioritise funding missionaries over funding famine relief.

So a kind of bigoted narrowness does, for many people, go along with belief in Christianity (go, as they say, figure). But here’s the thing: if bigotry always goes with religious belief and seldom appears without it, then religion’s your enemy. If bigotry sometimes goes with religious belief and sometimes with other beliefs, then bigotry’s your enemy – and un-bigoted religious believers are among your allies.

*In and of itself, that is, as I don’t believe that anything does. I do think what people believe about salvation and damnation is interesting & often very revealing.

To round it off I’ll just borrow a couple of other people’s comments, this time presented without any editing.

Zora 10.07.12 at 11:33 pm

I’m an American Zen Buddhist, in a sangha that doesn’t demand much in the way of faith. I’m not required to believe in a god — only in the efficacy of Zen practice. Or rather, that it’s worth trying out the practice. From that standpoint, the passionate denunciations of the atheists just whiz right past me. They’re not talking about me.

Yet I also find that I can read Christian or Muslim religious writings and say, “Yes, that’s SO.” I take God or Allah as a metaphor for those who need to experience their practice as a human relationship. The emotions evoked by this metaphor are powerful and useful. I recognize them. God is not my metaphor of choice, it does not resonate, but I cannot deny that it works for many people.

Isn’t that what Spufford is saying? That Christianity, as a practice, can cultivate love, compassion, serenity, acceptance of what must be endured. I understood what he said, and agreed — despite starting from an entirely different viewpoint.

Bruce Wilder 10.09.12 at 10:31 pm

The outside / inside dichotomy might be applied differently depending on whether you think the stress, in the OP title — Francis Spufford and the inner life of belief — should be placed on “belief” or “inner life”.

The very notion that the individual might have an inner experience — inalienable, subjective, private and owned — of which she needs to make sense, and which might, despite its seeming material inaccessibility to shared social observation, contain both a longing for, and a means of connection to the whole, of which the individual is an ephemeral part, whether that “whole” is a family, a society, a political state, a living planet or a universe, . . . seems curiously remote from the problems of political deliberation or ethical behavior.

Like others in the thread, I am troubled by the religious grasping at arbitrarily chosen, and apparently loosely held, “beliefs”, and using passionate “faith” in those supposed “beliefs” as a cudgel with which to bully others in various political disputes, or as a personal dispensation from personal shame or ethical responsibility. Putting those resentments against religion aside, the honoring of personal, inner experience, intrigues me.

It does seem to me that we, human beings, long for meaning, and struggle with an inner chaos of unordered impulses, response and experience, a dream world, we’d like to control, order and (contradictorily) free and express. I sometimes make the point in comments, that political arguments often take the form, not of a logical proposition like a syllogism, but of an hypnotic trance induction. We long to be hypnotized, to put aside our rationalizing, defensive consciousness; and, in persuading others, we instinctively play on this longing to be, literally, open to ideas and values.

If I come to the aid and comfort of a friend, who has experienced a tragedy or an accident, I don’t offer scientific analysis. I offer reassurance, touting “beliefs” which are objectively false as factual propositions, but are, nonetheless, aimed at repairing the person’s healthy narcissism. I am thinking of commonplace nonsense, like, “you are so lucky that the accident was not so much worse . . . ” It is important to hear that you are “lucky” — most especially, when you have been confronted with incontrovertible evidence that you are not — that you belong, that you are part of the whole, that you have as much right and purpose in being here, as the rocks, and the daffodils and the bugs and the stars.

We do a lot of this seeking after inner comfort and transcendant meaning, and not just in formally religious settings. I suppose that this is what people are mostly doing in a Tony Robbins seminar. It is why a business executive reads the Harvard Business Review. Maybe, following Aristotle, it is what we find in a great tragic drama. Or, what people seek, and sometimes, find in mind-altering drugs; or at AA meetings. It is what people want from magic or thinking about ESP and extra-terrestrials, or from sexual intercourse. It is what the coach is providing the team every day in practice, and in a pre-game pep talk.

I have listened to religious people, struggle with the concepts, say, of Darwinian evolution, and sense that their concern is that they are being asked to give up some necessary element of a favorite fairy tale, which has helped them find meaning or motivation in the necessary disciplining of their scarier impulses. They really don’t have to do molecular genetics or cure cancer (where factual and theoretical beliefs about evolution might have some purchase), but they do have to refrain from cheating their employers or killing their mother-in-laws, and hide their fear of being cheated by their employers or being killed by their mother-in-laws. If the universe doesn’t have an inherent moral structure of natural law and an all-observing God, well, then how can we justify ethical self-restraint in ourselves or expect ethical self-restraint from strangers?

I’m not always sure what the point would be in engaging people on the factualness of religious belief. I was raised in a Catholic tradition, which, following Thomas Aquinas, regards religious faith as focused on propositions, which are beyond factual refutation or confirmation, by definition. Of course, the bullying — exemplified by claims of papal infallibility — is front and center, as well. And, then there’s the hypocrisy — if that’s even the right word, for the disowned emergence of the darkest impulses — of sexual molestation or Mother Theresa making nice with the dictators of Haiti. The pragmatic case for religious belief or practice seems curiously difficult to put — the bridge to ethics or politics a mirage in the desert’s shimmering distance.

If there’s a king in Heaven high

Attention conservation notice: just under 8,000 words(!) on varieties of religious experience, the size of the universe and the work of Jeremy Deller. Includes three pictures, one audio clip, one virtual gallery link and two hymns. Hat-tip to Ken Macleod.

1. Nobody knows who they were

The other Sunday we went here:

Sacrilege

It was just about as good as it looks. It was in Preston, for one day only – the day being the final day of Preston Guild, which we also saw a bit of (although we weren’t around for any of the processions). We booked a holiday in Guild Week the last time it came round – in 1992 – so I was glad that we’d showed our faces this time.

I’ll say a bit more about Sacrilege – the “bouncy Stonehenge” created by Jeremy Deller – a bit later. (If you want to skip straight there, find the next mention of Deller’s name.) Now, though, we’ll break for a hymn.

2. Heaven and earth shall flee away

God is working His purpose out
As year succeeds to year;
God is working His purpose out,
And the time is drawing near;
Nearer and nearer draws the time,
The time that shall surely be,
When the earth shall be filled with the glory of God
As the waters cover the sea.

I love that hymn. It’s completely barmy, but I love it. There’s that amazing, exorbitant image of the world being completely transfigured by the glory of God – just as wholly, just as ubiquitously as the sea is wholly and everywhere wet. I think what makes this verse really powerful, oddly, is the combination of that visionary image with the calm plod of the first six lines, which take quiet confidence to a new level of placidity: it will happen, it will definitely happen, and what’s more it will happen within a finite, countable period, such that we can actually say that the passage of time is bringing us nearer to the time when it will happen, as it definitely will. Sorry, drifted off there for a moment – when what will happen, again?

When the earth shall be filled with the glory of God
As the waters cover the sea.

Oh, that. Fancy me forgetting.

The traditional Christian view of time was built on some definite fixed points at beginning, middle and end – all with Biblical warrant. In the beginning, Adam and Eve had sinned and been kicked out of Eden and into the real world, setting the whole thing going; in the middle, Jesus had redeemed mankind through His sacrifice; at the end… well, people weren’t sure exactly what would happen at the end, but it would certainly involve the end of time, the heavens being rolled up like a scroll and so forth. Now, we were somewhere between middle and end. We probably wouldn’t live to see the end, but as long as we died as Christians we could be sure that we would be there on the big day (or end of days). In between death and the end, depending who you talked to, was oblivion (which would be OK) or Heaven (which is nice).

If you took a few steps back from it all, the fixed points looked a bit different: all you really had was the need to put your faith in somebody who lived a very long time ago, to save you from the consequences of something that had apparently been done by somebody who lived an even longer time ago, consequences which would supposedly take effect at some unknown point in the future, almost certainly after you’d died. (The part about you dying, though – that definitely would happen.) As soon as you let doubt in on one corner of that picture, the whole thing goes a bit awry. What strikes me now about that hymn is how blithe its confidence is, how closed it is to any doubt or questioning. God – our God – has a purpose for the world; He’s putting it into practice, and when He’s finished the results will be (literally) heaven on earth; and this is definitely going to happen, possibly quite soon. It’s positively enthusiastic (OED: “Pertaining to, or of the nature of, possession by a deity”; “Pertaining to, characterized by, or of the nature of mystical delusions in religion.”).

From its tone I assumed initially that the hymn had found its way into Church of England hymnals either from a Methodist source or from even later revivalists, perhaps the Great Revival of the first decade of the twentieth century. I got the period about right, but otherwise my guess couldn’t have been more wrong. “God is working His purpose out” was written in 1894 by Arthur Campbell Ainger, who was a House Master at Eton. There seems to have been quite an appetite for under-the-counter millennialism in the nineteenth-century Church of England; for example, Lewis Hensley’s Thy Kingdom Come O God (1867) doesn’t just see the end of days as coming soon, it asks for it to hurry up (“Apocalypse now, please!”). There’s an anxious edge to Hensley’s hymn, as well as a weary Arnoldian pessimism (“By many deeds of shame/We learn that love grows cold”); his fixation on the end of the world is mildly desperate where Ainger’s is calmly confident. In their different ways, they both have a preoccupation with eternity which seems quite at odds with their comfortable social and theological position (Hensley was Vi­car of Ip­o­lyts-with-Great-Wy­mond­ly, no less).

As for Ainger, among his few other composing credits is “Carmen Etonense”, the Eton school song, whose chorus translates roughly “For as long as England’s shores are bathed in kindly sunlight, let Eton flourish! Eton shall flourish!” “Until the sun goes out” is a curious way to say “forever”; perhaps it was at the back of Ainger’s mind that the heavens would eventually be rolled up like a scroll, and that this would change things even for Eton College. It seems more likely, though, that Ainger saw God working His purpose out and Eton flourishing as very much the same thing. Perhaps the confident tone of the hymn came less from a sense of personal contact with God, more from the sense that Ainger and his class had always been blessed by God and always would be.

To be fair to Ainger, although his socio-cultural situation was more comfortable than most, the security he expressed in that hymn has been available to every other Christian since the second century AD. Existentially speaking, feeling that the whole of human history is put into its proper context by two irruptions of the divine – Christ’s sacrifice (firmly in the past) and the end of days (firmly in the future) – makes quite a comfortable framing for one’s own life. (You’re still going to die, admittedly, but you can’t have everything.) But how would it be not to have those anchor points? Or rather, how would it have been?

3. And Christ receive thy soul

The Harrowing of Hell is a traditional Christian belief; it’s not in the Bible, and can be seen as a bit of folk embroidery to patch up a hole in the Bible story. The thing is, Moses was damned. Great man and all that, met God and took down the commandments and so forth, but if you’re a Christian none of that’s going to get you saved. Faith in Jesus Christ is what you need, and that’s a tall order for people who were born several hundred years before Bethlehem. Bad luck, Moses – for the want of any alternative, he must have been damned to Hell, along with Aaron, King David, Abraham, old Adam and all. Of necessity this wasn’t spelt out in the Bible – the writers of the Old Testament didn’t know they were writing the Old Testament – but it was a logical deduction from the facts of salvation as set out in the Gospels (John in particular). This belief in turn gave rise to a folk belief that, before rising from the dead, Jesus had visited Hell and liberated everyone who was there purely because they were born at the wrong time – everyone who would have believed in him if they’d had the chance, in other words. Hell was ‘harrowed’ in the sense that it was thoroughly searched – combed, we’d say now – for righteous souls, who were permitted to ascend into Heaven.

That’s fine – well, it’s a bit of a hack, but it can be made to work – if you’re talking about a relatively limited number of people and a finite period of time. If you take into account what we now know about the number of different ways people have lived and the number of different places they’ve lived in, it starts to get a bit Horrible Histories…

JC: Greetings! I bring the good news of salvation through My death and resurrection to save all mankind, past, present and-
Aztec Priest: Sorry, could you repeat that? I was a bit distracted, what with all these demons gnawing my entrails and sticking knives in my – Ow! Look, stop that for a moment, will you? Sorry. You were saying.
JC: [sighs] Greetings-I-bring-the-good-news-of-salvation-through-My-
AP: Salvation? You’re going to get me out of here? Good man! I thought Quetzalcoatl would have sorted it out by now, to be honest, but I suppose he must be busy. Hang on, you’re not-
JC: No, I’m not Quetzalcoatl. I’m the Son of God. Well, I say ‘son’, I’m actually God in my own right as well. It’s quite interesting actually, God has three persons but at the same time-
AP: Son of a god? Which one? Not that I mind – if you’re going to get me out of here that is – I’m just curious.
JC: No, no, no, not son of a god, son of God. Look, can we get on with it?
AP: You’re the son of a god who thinks he’s the only one? Sounds a bit weird, but whatever. So which way did you say the exit was?
JC: No, it’s not quite that simple. Look, when you were alive, you didn’t believe in me, right?
AP: I’m not sure I believe in you now, mate. No offence, but the hallucinations you get after a few centuries of mind-numbing torment are something else.
JC: So, OK, you didn’t believe in me, but what I’m interested in now is, were you good?
AP: Well, I was a pretty good Aztec priest. It wasn’t always easy, though – I had to make a lot of sacrifices. Sacrifices! Get it? Oh, suit yourself.
JC: Yes… That’s actually not quite -
AP: No, I know what you mean. I think I was a pretty good bloke, really. Ask these guys, they all knew me. If you can get the demons to lay off long enough, that is. Look, will you stop that? We’re talking!
JC: Oh, this is ridiculous, I’ll never get round at this rate. Hold still for a moment, would you, I’ll just look into the secrets of your heart.
AP: Help yourself – with the work these demons have been doing you can probably see my heart from there already.
JC: Yes… yes… and it’s… yes. What do you know – apparently you’re one of the good ones. Off you go to Heaven. Over on the right – you see that dazzling light? Just head for that and keep going, they’ll sort you out when you get there. Come on, chop chop – I’ve got another three million to get through just in this corner, and that’s not counting the Incas.

The depth of the past, and the sheer geographical breadth of the past, are a bit of a problem for this model, at least in terms of surface plausibility. The problem’s compounded if we take into account the number of people living since the death of Christ who, with the best missionary will in the world, (will) have lived and died without any exposure to the Good News. Presumably they’re also Hell-bound, at least on a temporary basis, and presumably some kind of sorting-out operation will rescue the good ones at the end of days. If you put it all together, an awful lot of people are getting temporarily misfiled, and condemned to centuries or millennia of excruciating torment as a result.

And people aren’t the half of it.

4. O’er heathen lands afar

The observable universe is a sphere with a radius of 46 billion light years. (You may think it’s a long way down the road to the chemist’s, but that’s just peanuts to space.) There are, on the latest estimate, in the region of 3 x 10^23 stars in the universe. I don’t know what proportion of those are Sol-like, but with numbers that high it doesn’t matter a great deal; even if the proportion’s one in a million, and only one in ten of those stars have small (non-gaseous) planets (which itself is a very low estimate), we’re still looking at a multiple of 10^16 rocky extra-solar planets. Not only that, but the universe is 1.4 x 10^10 years old – ten billion years older than Earth. (Which makes the idea of a ‘year’ a bit notional, but never mind.) Space is vastly, hugely, mind-bogglingly big, and so is time – and my God, they’re full of stars.

What that means, though, is that there are innumerable times and places that the Good News of Christ’s resurrection doesn’t and cannot reach, thanks to the finite lifespan of stars and the limit imposed by the speed of light. As speed limits go, the speed of light is quite a high limit, but it is a hard limit: nothing in the universe can travel any faster. Which has some significant effects.

Picture a star as a dot, and picture a ring around it: we can call that the distance travelled by light in a second. Now imagine a whole series of concentric rings, representing the distance the star’s light will travel in one second, two seconds, three and so on. Now, as simple as it is, that diagram is overloaded – we’re using the distance between concentric circles to represent two different things, the distance travelled by light in a second and the second it takes to travel it. To remedy that we’ll need to use the third dimension: picture those concentric circles coming up out of the paper, each widening circle higher up than the one before. Height now represents time, while the horizontal dimensions represent distance in space. The shape you’ve got, if your visualisation is the same as mine, is a cone. As you move away from the star (the point at the bottom) you simultaneously move upward (the passage of time) and outward (movement in space). The angle of the cone represents the speed of light – the distance in space (horizontal) it can cross in a given time (vertical). Most importantly, light cannot reach any area outside the light cone, because doing so would involve a flatter angle – more horizontal movement (in space) for the same vertical movement (passage of time), which is to say a speed higher than light speed.

In reality, of course, stars emit light in three dimensions; real light cones are four-dimensional and hence quite difficult to visualise. The main point is that any localised event has a future light cone – a region of spacetime which it’s physically possible for information from that event to reach – and a vast region outside that light cone: all the places that light (or radio waves, or by extension any form of information) cannot reach, or rather cannot reach yet. Equally, any point in spacetime (such as the one you’re at now) has a past light cone – a region of spacetime from which it’s physically possible for information to have reached an observer at that point. Anything outside your past light cone can never have had any effect on you. If Mark and Q had been equipped with high-powered radio transmitters, the Good News might have travelled getting on for 2,000 light years by now; that’s quite a long way, but our galaxy is 100,000 light years wide.

Suppose that, a thousand years from now, radio broadcasts from Earth reach a solar system a thousand light years away, one of whose planets supports multi-cellular life. Suppose that an intelligent (and religiously-inclined) species had existed on that planet, but had destroyed itself a couple of centuries earlier, dying unsaved in their millions for want of the Good News. Now multiply out by all that time and all that space. Even if only a tiny proportion of life-sustaining planets harbour intelligent life, the likely numbers of alien civilisations that exist, have existed or will exist somewhere in those 4 x 10^32 cubic light years within the lifespan of the universe are – there’s no other word for it – astronomical. And, given light speed as a hard limit, the proportion of all alien civilisations that can ever be reached by the Good News is astronomically tiny. There will be an awful lot of catching up to do at the end of days; the Harrowing of Hell starts to look a bit parochial.

Not only that, there’s been plenty of time for a star to halt over a stable somewhere else, before we came along – even before Earth came along – and plenty of places where it could have happened. The believing Christian (whose persona I’m borrowing for a lot of this post) would shrug this off: we know it could have happened like that, but we also know it didn’t, because it happened right here, in Bethlehem. But what if we can’t be so sure?

5. You’ll remember Mercury.

As Gary Gutting (via Ken) says, one solution to the problem of evil – the question of why an omnipotent and benevolent God permits pointless suffering – is an appeal to our own ignorance. God, on this argument, is not only all-powerful but all-knowing; our knowledge is imperfect and incomplete, so it may well be that events which make no sense to us have their place in a divine plan. Or, in a stronger version of the same point: we know our knowledge is imperfect, while God’s is perfect; as such we know that we cannot know the mind of God, cannot understand the divine plan. Seeing suffering as incomprehensible, on this argument, is a sign of our humanity; we should not aspire to understand tragic events better, only to be reconciled with them through prayer.

The Harrowing of Hell fits neatly into this framework, despite the sufferings involved being mythical. Being born in the time and place that he was, Moses had no way of knowing the true nature of God; he and all his followers lived all their lives without ever having a full revelation of the divine, and consequently died without being saved and went to Hell. This is an unpalatable thought: surely no benevolent and all-powerful God would condemn the Fathers of the Church to the torments of the damned, even temporarily. (I say ‘temporarily’ – after the first couple of centuries I imagine it wouldn’t feel very temporary.) They would effectively be condemned for being born in the wrong time and place – and, what’s worse, for being born in the precise time and place where they needed to be born in order to lay the groundwork for Christ’s coming and hence fulfil the divine plan. Moses, in short, copped a millennium of Hell for doing everything right.

We can understand this – or rather understand our failure to understand it – by invoking God’s superior (perfect) knowledge: there are things in the divine plan that we don’t understand and never can understand, and presumably this is one of them. (If you think this sceptical argument is unpalatable, incidentally, you’re not alone. From a believer’s point of view it’s very unsatisfactory, not least because it opens up the possibility that the nature of God is unknowable and may be entirely different from what we believe it to be. I don’t think it’s coincidental that the argument was formulated by somebody – David Hume – who was at most a theist. On the other hand, it’s the closest thing I know to a good answer to the problem of evil.)

Now bring all that space and time back in. If a tiny fraction of the planets orbiting other stars have produced or will produce intelligent life, that will amount to millions of alien races – the vast majority of which will realistically never get to hear about Bethlehem, not least because most of them are, were or will be physically incapable of doing so (light cones again). To begin with we can trot out the same response – yes, it seems a bit rough, but there you go, all part of the plan, nobody said the plan would be comprehensible, and so on. But then it gets worse. Think of all those hypothetical intelligent alien races, whether past, future or outside both our light cones. Presumably they have some conception of the divine or numinous – it’d be a sod to convert them to Christianity otherwise – and presumably they’ve made some sort of fumbling semi-contact with the divine and had some sort of glimmers of revelation. (Somebody spoke to Moses in that bush; he still went to Hell.)

Now the trap shuts: how do we know that our revelation was the real and complete one, the one that’s true for all time and all space? The sceptic answers: we don’t know and we can’t know. If we believe in Christ as the incarnate son of God, we’re committed to believing that untold millions of people – and other intelligent beings – lived or will live without any possibility of a true and complete apprehension of the divine. This may seem a bit tough, but our knowledge is imperfect, so we have to trust that it’s all in God’s plan. If we are serious about our belief in the imperfection of human knowledge, however, we have to concede that the Christian’s belief in Christ as the incarnate son of God may not be a true and complete apprehension of the divine. God’s true revelation may have taken place three billion years ago, on a planet orbiting a star in the Lesser Magellanic Cloud; the good Good News may not reach our area until the sun’s a red giant. Christians, as much as Jews or Buddhists, may only ever get a glimmer or half a glimmer of the divine – and this too may be part of God’s plan.

6. “God is dead,” Nick said. “They found his carcass in 2019.”

Still with me? Brace yourself; this is where things get strange.

Hume’s argument from imperfect knowledge has been answered by an appeal to a different kind of knowledge. Human reason may be imperfect, this argument runs, but there’s no gainsaying human experience:

There are two ways to learn that something is possible. One way is to form a clear conception of the possibility. The second way is to discover that the thing is an actual fact. For example, I know that it is possible for bumblebees to fly because I have observed them actually flying. I can know that bumblebees actually fly without first having proved to myself, independently, that it is really possible for them to fly

Similarly, the Christian knows that it is possible for God to communicate with her because she knows it has happened. By happy extension, she also knows that it is possible for the God whose nature we know to communicate with her, and hence that God’s nature is the nature we know. Collapse of stout sceptic.

There are two ways to answer this argument. The short answer – and, I think, the one Hume would have used – is that the argument assumes its own conclusion. What our Christian knows is that she has had a certain experience; when she sets about understanding that experience she’s necessarily thrown back on her own knowledge and reason (including her knowledge of the Christian religion), and we’re back to square one.

Gutting offers a longer (and stranger) answer.

Their confidence in salvation, [believers] say, comes not from philosophical arguments but from their personal contact with God, either through individual experience or a religious tradition. But what can such contact provide concretely? At best, certainty that there is a very powerful being who promises to save us. But there may well be — and many religions insist that there are — very powerful beings (demons or devils) intent on leading us away from salvation. How could we possibly know that the power we are in contact with is not deceiving us?

The inevitable response is that an all-good God would not permit such a thing. But that takes us back to the previous difficulty: there is no reason to think that we are good judges of what God is likely to permit. God may have to allow us to be deceived to prevent even greater evils.

Got that? Direct, immediate experience of contact with God might turn out to be a quite genuine experience of contact with something else. This is a monstrous possibility (literally), but remember, our human knowledge is imperfect; and if our knowledge is imperfect, then God’s plans are unknowable. And, if God’s plans are unknowable, He may make it possible for demonic entities to exist, and for people to make contact with them while believing they’re in touch with God. It’s a bit like the (apocryphal?) preaching of Buddha that Brahma wasn’t the creator of the universe, but a misguided spirit who had come to believe that he was the creator of the universe. Indeed, given that God has all of time and space to work His purpose out, He may make it possible for entire civilisations to gain their only experience of the divine from contact with demonic entities – which would condemn those civilisations to damnation even at their highest levels of religious exaltation. And, if God’s plans are truly unknowable – and what other kind of ‘unknowable’ is there? – we can’t know that our civilisation isn’t one of them. Pulling back out to the cosmic scale, we can’t know that our entire planet – what the hell, our entire galaxy – isn’t doomed to this kind of counterfeit revelation. We can trust that things will be sorted out at the end of days – assuming that at least we’ve got that right – but the God who does the sorting may not be what we expect at all.

We can put the same argument in slightly less alarming terms – and beat a retreat to the short answer – if we say, more simply, that many people through the ages have experienced what they thought to be direct contact with God and been mistaken about the nature of the experience, to put it no more strongly than that. As sceptics, we can accept that God may exist and genuine contact with Him may be possible, while leaving open the possibility that everyone who has ever believed they have made contact was suffering from enthusiasm. We can doubt, if we feel like it, that contact ever will be made from Earth, or from any other planet out in the uncharted backwaters of the unfashionable end of the western spiral arm of the Galaxy. (I say “the Galaxy”; obviously I mean this galaxy.)

7. Against principalities, against powers

As I said earlier on, the Humean sceptical argument is unpalatable to believers. I think bringing in deep space and deep time has made it clear just how unpalatable it is. Whether the alternative to a true revelation is the machinations of powers in the air or simple human delusion, the result is much the same. The believer would be committed to holding two mutually antagonistic beliefs simultaneously:

  1. I believe in God: an omnipotent and omniscient being who created the universe, loves His creation, makes Himself known to believers and will grant salvation to them.
  2. I am human, and consequently acknowledge that God’s nature may not be as I believe it to be, God may not have truly made Himself known to me and may never do so, the tenets of my religion may have no connection with God’s true purpose and my faith may not save me from eternal damnation.
  3. But GOTO 1.

So where is all this going? The point is simply this: the version of Christian belief we’ve just ended up with is monstrous and untenable. Hume’s scepticism leaves open the possibility of genuine revelation, genuine contact with the divine, but at the cost of introducing radical uncertainty as to whether any given experience of the divine is that genuine contact – and by extension whether any known experience of the divine has ever been genuine. In the Humean view, it’s entirely possible that nobody who considers him- or herself to be a Christian has ever had a genuine contact with the Christian God, or ever will. Not only is it possible, it’s entirely compatible with belief in an omnipotent and benevolent God, working His purposes out as year succeeds to year. And yet nobody who considers him- or herself to be a Christian could believe that: it would undermine everything they believe.

So where does religion go if we take this argument seriously? I don’t believe that it disposes of religion altogether, although it does make things a bit difficult for certain kinds of religious belief (and not only Christian belief). One possibility is that the divine retreats to a kind of abstract realm of unknowability. God may or may not exist; this or that revelation of the divine may or may not have been valid. Whatever the answer is, though, it can never be proved and will never affect us either way. Hume himself leant towards this position; at one stage he described the argument between theism and atheism as a purely verbal disagreement, or as we’d say a difference that makes no difference. This way of thinking about religion clearly doesn’t include an eschatology – even Hume could hardly miss the Last Trump; more broadly, it tends to erode religion’s purchase on the present-day social world, reducing the numinous to an aesthetic experience and differences of belief to philosophical debating points. In practical terms this may be no bad thing, but it’s a substantial scaling-down of the claims of religion.

Another answer, which I think is more interesting, gives scepticism the field and then goes somewhere different. But first, another hymn.

8. Everywhere all the time

Every star shall sing a carol,
Every creature high or low.
Come and praise the King of Heaven
By whatever name you know.

God above, man below,
Holy is the name I know.

When the king of all creation,
Had a cradle on the earth.
Holy was the human body,
Holy was the human birth.

Who can tell what other cradle
High above the Milky Way
Still may rock the King of Heaven,
On another Christmas day?

Who can count how many crosses
Still to come or long ago.
Crucify the King of Heaven?
Holy is the name I know.

Who can tell what other body
He will hallow for his own?
I will praise the son of Mary,
Brother of my blood and bone.

Every star and every planet,
Every creature high and low.
Come and praise the King of Heaven,
By whatever name you know.

God above, man below,
Holy is the name I know.

“Every star shall sing a carol” (1961) by the great Sydney Carter. Cards on the table, I’m not a Christian, but I think that’s absolutely brilliant – and it points to a different way of dealing with Humean scepticism. The problem that deep time and space poses for believers is the same problem that was originally patched up by the Harrowing of Hell, and it’s the problem of singularity. (The state of being singular, that is. Nothing to do with that singularity.) If there is one true revelation of the divine, what becomes of all those people who could only have a glimmer or a distorted half-revelation? And – the Humean adds – how can we know that we aren’t among them?

Carter’s answer is to reject the premise of singularity. (I don’t know if Carter read much science fiction; you could see this hymn as a riposte to C. S. Lewis’s Perelandra, in which the inhabitants of Venus say how privileged Earth was to be the planet Jesus chose.) This hymn – and, from what I know of it, Carter’s own religious faith – points us to a world in which Moses wasn’t damned in the first place, and a universe in which there are many different revelations of the divine. Some of them are false, predictably, but many of them are true – equally true, and true in different ways. Encounters with the numinous then cease to take their bearings from one true revelation, and simply become something that happens to people – and would happen to other intelligent species.

Consistently with this idea of multiple revelations, you could see religious observances in all their variety as just something that people do – or rather, something that societies do, and quite possibly something that the societies formed by other intelligent species would also do. Religions would then be different ways of attending to the numinous things in life, different ways of adopting a reverent attitude to phenomena that deserve reverence (birth, death, community, that kind of thing). As for the experience of the divine, perhaps that could be situated at the end of the process rather than its source: not the phenomenon to which reverence needs to be paid, but an emergent property of the practice of reverence.

9. Sweetness follows

A couple of things follow from this way of looking at religion. Four, to be precise.

Firstly, (almost) all religions are (more or less) equal. If you believe that you should do this when somebody’s born, this when somebody dies and this at regular intervals (weekly, monthly, annual, whatever); if you can look around you, at least occasionally, and see other people who believe the same; and if you believe that those commitments are involved with your relationship with something immaterial or intangible; then the chances are you’re doing religion, practising reverence to things that deserve it.

Secondly, religion is a shared practice of life. Religions may start with a single enthusiast (somebody like George Fox), but they only take root in groups – people who do things together. They grow through groups, as well, or at least recruit through affinity networks. Show me a religion that recruits by ones and twos and I’ll show you a religion that’s either very new, struggling to survive or both. Raymond Williams defined – or insisted on defining – ‘culture’ as a ‘whole way of life’. Religion has something of that quality: it’s part of how people do what they do, together. And, I think, the quality of religious experience comes out of that common practice, rather than being something that existed prior to it and which it was constructed around. Insisting that the religious experience takes priority over the common practice can have some odd results. My mother was brought up in the Plymouth Brethren, a Protestant group with strict ideas about most things but not much internal hierarchy. At their communion services, the Brethren would break and share actual bread rather than the wafers they use in the Church of England, this being what the Disciples had done at the Last Supper (“this do in remembrance of me”, remember). According to my mother, one member of their ‘Meeting’ argued that modern English bread was just as inauthentic as the wafers, and that they should be using unleavened bread. He lost the argument, but no matter; from then on he brought along his own supply of unleavened bread, wrapped up in greaseproof paper, and communed with himself.

Thirdly, religion happens (or doesn’t) in the life you’re living. Pace Robyn Hitchcock, it does matter what you was – what you is is what you are, but what you was is how you got here – how you came to be what you is. Are. We think of conversion experiences as wiping previous religious (or non-religious) commitments completely, like a wave coming in and washing away the scribbles on the sand, and I dare say it would feel like that, to begin with at least. Personally I’m a kind of not-quite atheist agnostic, which is a bit of an uncomfortable, liminal position – you could say I’m the kind of person who doesn’t actually believe in anything but doesn’t want to commit to not believing in anything. If I converted to Catholicism tomorrow I can imagine the tide of faith coming in like a comfort blanket. But there are habits of thought I’ve acquired over the years, not to say habits full stop, which would be very hard to shed – and that includes habits which go back to my rather distant upbringing as an Anglican. Like people who settle in rural villages and find themselves referred to as newcomers twenty years later, I’d be a Catholic convert for a long time before I was simply a Catholic. Even then I’d be an ex-Anglican, formerly-atheist Catholic. And that’s a belief system not very far from the one I grew up in; becoming a Buddhist would be the work of a lifetime.

Religion is a big commitment: it takes people sharing ways of living for it to happen; it takes time and patience to make it a reality in your life. Anything short of that is just playing at it. People play at religion a fair bit, if you look around; a lot of what people ostensibly believe in most strongly seems to be awfully dilettante and and-a-pony-ish. The stall at a local church fund-raiser selling prayer flags – how would that work? The woman we saw at a stone circle in Cornwall, staggering and holding her head from the sheer power of the vibrations – didn’t it seem at all odd to her that nobody else could feel a thing? (Then again, as Ben Goldacre points out, electrosensitivity has real and often distressing symptoms; megalithosensitivity may be something similar.)

On the other hand, grumpy sceptical reactions like that often suggest something being disavowed or studiously ignored. I think what’s nagging at me in this case is that (fourthly) playing is really important. Play starts in the ‘potential space’ that infants first start to explore under their parent’s gaze, and it goes on for as long as you’re making new discoveries, learning how to do things, making other people laugh or just messing about with ideas. Play is exploratory; playing is a way of finding new meanings, new connections, new ways to act or live. Playing with religion as such may not be a great idea, if only because it puts the idea of a religion ahead of the practices that make it happen. (Think of that Plymouth Brother with his flatbreads in greaseproof paper; a less earnest approach would, if anything, have cut him off from the rest of the Meeting even more completely.) What does make sense is the idea of playing with shared practices of life – playing with ways (finding new ways) to offer reverence to things, events, experiences that deserve it. And that’s where, at its best, art comes in. Art and religion are quite closely related, in this way of thinking. Art is a way of playing with images, symbols, practices; a way of directing a concentrated, reverent attention to everyday social life; and a way of bringing out the unnoticed meanings of the lives we’ve been living.

10. The marvellous revealed

I’m convinced that Jeremy Deller is a genius. In 2006 he co-curated the Folk Archive, the catalogue of which is now available online as a kind of virtual exhibit. I didn’t see the real-world show, but the virtual gallery is quite wonderful. Head over there now, I’ll just put some music on until you get back.

The Folk Archive

You back? Great. (Good, isn’t it?)

In 2009 Deller organised Procession, a work which I still haven’t made my mind up about – by which I mean that I’m still not sure what it was. It was an artwork in the form of a procession; it was a tribute to the social practice of holding processions; it was a satirical comment on past processions; it was a sincere attempt to envisage a procession for contemporary Manchester; it was all the above. It was a really good procession, in any case. It was led by a Boy Scout band (playing “Hit the North”); bringing up the rear came a float carrying a steel band (playing “Love will tear us apart” – and if you haven’t heard “Love will tear us apart” played by a steel band at the tail of a procession, you’ll have to imagine how good it sounded). In between there were Ramblers, goths, a celebration of fish and chips, a series of hearses carrying floral tributes to defunct Mancunian nightclubs, a group of Unrepentant Smokers… and, as they say, much more. Each group had an embroidered banner in the old style – I worried to begin with that the cumulative effect would make the banners look arch and silly, but they were such magnificent pieces of work that they simply gave greater dignity and impact to the procession, as banners always have done. It was one of those works that look rather weightlessly ironic on paper, but in reality turn out to be powerful and genuine: it was called Procession, and it was a procession. The silliest element was supplied by reality. As well as their own, the Unrepentant Smokers carried a small additional banner with a health warning. I assumed this was a satirical reference to the elf-n-safety hoops that march organisers have to jump through these days, but it turned out that there was no satire about it: the City Council wouldn’t allow them to march unless they carried it.

And did I mention, lots of people came and watched. We all stood, lining the street, and we watched the procession go by. It was great.

It brought people together; it created strange and unexpected moments of beauty; it celebrated the lives people were and had been living. I’m not saying Procession was a religious work, but I do think that what remains of religion – if you forget about looking back to a singular revelation and looking forward to the end of history – has very similar qualities.

As, in its own way, did Sacrilege. One of the starting-points of this post (if something the length of an academic paper still qualifies as a ‘post’) was my perversely-maintained conviction that playing on a life-size bouncy-castle Stonehenge, set up on a recreation ground in Preston, is actually more ritually appropriate – more real – than holding a Druid ceremony at the real Stonehenge. That’s not an entirely serious point – I’ve done one and not the other, apart from anything else – but I think I can make a case for Sacrilege, and one which relates partly to its fairly ostentatious inauthenticity.

Stonehenge, if it’s anything, is singular: we all recognise it, and we don’t know anything else like it. (In point of fact, I’m not sure there’s any other stone circle like it anywhere; those triliths are extraordinary.) This singularity is accentuated by Stonehenge’s close association with Midsummer: not only is there only one Stonehenge, there’s only one time to go there. Stonehenge also tugs us back to a distant past that we know little or nothing about. About the people who originally used Stonehenge, Nigel Tufnel was right: Nobody knows who they were… or what they were doing. Any attempt to recreate the ritual significance of Stonehenge now has to be fairly speculative and voluntaristic; contemporary Druid practice springs out of a prior commitment to a certain kind of religious experience, rather than the experience emerging from a practice and the practice growing out of a shared life experience. They’re playing at it, in other words – and playing seriously, rigidly, adhering to rules they believe were revealed to them and shutting out all non-believers.

Compare Sacrilege. Nothing singular about it: it was set up and taken down in a whole variety of places all around the country. It’s not about the distant past; it takes the very contemporary form of a bouncy castle (so contemporary that I’m too old ever to have been on one before, although for some people reading this they were probably a childhood memory). It’s not about playing by the rules and restricting participation to an elect of believers; it’s about admission for all, and it’s about playing. It’s also – and this is the genius of the work – unavoidably about the numinosity of Stonehenge itself. Play in such a setting inevitably takes on ritual aspects: I set myself to run around the inside of the outer circle touching all the ‘uprights’ once, then do the same around the outside of the inner circle, and by the end I felt I’d done something. (I also felt extremely out of breath. How do kids do it?) Play takes on ritual aspects, and then it sheds them again; I’ve got vivid memories of leaning back against a gently yielding monolith, squeezing between the uprights of a trilith, dropping to a kneeling bounce on the turf, then rolling over and watching the world bounce past… None of this meant anything – it didn’t derive significance from any kind of liturgy – but at the same time it meant a lot. It reminded us of the grandeur and beauty of the stones themselves, and evoked all the rather cliched images of mythic power that they’re linked with. At the same time it drew on the history of non-reverence towards the ancient stones and the contemporary rationality which disregards them, which it at once restated (there’s nothing very reverential about bouncing around Stonehenge) and playfully subverted (there is something irreducibly reverential about bouncing around Stonehenge – and there’s nothing very rational about bouncing, come to that).

The sheer playful excess of the work, combined with the sheer symbolic excess, produced something hilariously enjoyable and powerfully beautiful. As such, what Sacrilege did was something nearly, but not quite, religious; something much closer to Sydney Carter’s idea of religious experience than to traditional versions; and something it shared with Deller’s other work. Sacrilege doesn’t say “the ancients had Stonehenge; we have nothing but bouncy castles; woe is us”. It says “they used to have Stonehenge; we have bouncy castles; what now?” In just the same way, Acid Brass said “they used to have brass bands, we have acid house”, while Procession said “they used to have Whit Walks and Wakes Weeks, we have goths, outdoor smokers and a closed Haçienda”. (I’m very glad that Sacrilege hit Preston in the week of the 2012 Guild, incidentally; if it was a coincidence it was a remarkably good one.) Each time, the work doesn’t assert that this is the contemporary equivalent of that; instead, it brings out the elements of play and celebration in both, then asks, is this the contemporary equivalent? Is this where our contemporary rituals of sense-making take place, where we honour the numinous things in life? Is this where our traditions are being laid down? If so, what do they look like and feel like – how do they honour the numinous and strike sparks off the everyday? And are there any precautions we should be taking?

11. Careful now

Title credits: Trad., Nigel Tufnel, Christina Rossetti, Trad., Lewis Hensley, Edwin Morgan, Philip K. Dick, St Paul, Russell Hoban, Michael Stipe, Peter Blegvad, Dougal McGuire.

Thousands or more

So, what have I been listening to lately? Funny you should ask. Here’s about a year’s worth of recent listening, focusing mainly on new(-ish) releases.

It doesn’t seem very long ago that a friend at the local singaround told me that he was thinking of starting a record label. I thought this was a ridiculous if faintly brilliant idea, and took care to avoid either encouraging him (in case he did it and it was a disaster) or discouraging him (in case he didn’t and it would have been a brilliant success). Well, he did it, and the Folk Police imprint is the result. I think we’re looking at ‘success’. (Artistically, anyway; as I understand it he’s still got the day job.)

One of the first Folk Police releases, Oak Ash Thorn is a collection of Peter Bellamy’s settings of poems by Rudyard Kipling, originally released on two 1970s albums – Oak, Ash and Thorn and Merlin’s Isle of Gramarye. The roster of acts contributing is the proverbial who’s who of contemporary folk: the Unthanks, Jon Boden, Fay Hield, Emily Portman, Cath and Phil Tyler, Trembling Bells… the list goes on. The songs are terrific; the performances are technically superb and the production is pin-sharp.

But what does it actually sound like? I’ve listened to it a lot, and I’ve come to the conclusion that it isn’t entirely aimed at me. Take the introduction of Sam Lee’s Puck’s Song. It’s a fine track – Sam’s got an extraordinary voice, and his arrangement is strong enough to influence my own take on the song, more or less despite myself [*]. But he opens the track with a bit of scene-setting found footage – a random bit of speech from Bob Copper, the sound of a lark and a clip of the Coppers singing a completely different song. To me it’s a distraction at best and embarrassing at worst; it just gives me the impression that the artist thinks he’s discovered this amazing new thing called ‘folk music’. This music and its practitioners really aren’t as ancient, or as alien, as all that; I’m only two degrees from Bob Copper myself, and I suspect Sam Lee is too.

Reverence for folk music, that’s what I don’t like – particularly when it takes the form of reverence for folk-rock (Trembling Bells, the Owl Service). It’s noticeable that several artists, the Unthanks and Emily Portman most obviously, take the songs slowly and delicately, without much volume but with a kind of anxious solemnity; anything less like Bellamy’s delivery of his Kipling songs would be hard to imagine.

Pace suffers most of all. Few go as far as Lisa Knapp does with The Queen’s Men – slowing down the song until the tune is lost completely – but most of the songs are taken slower than the originals. (Although Oak, Ash and Thorn and Merlin’s Isle of Gramarye were unavailable at the time this album was made, they have since been re-released – and very fine albums they are too.) Even Rapunzel and Sedayne’s Harp Song of the Dane Women – one of the better tracks here – is taken at walking pace, giving it a kind of incantatory stillness but losing the headlong weirdness of the original.

There is some excellent stuff on this album; Tim Eriksen is on noisy form, Olivia Chaney is in good voice and Jon Boden gives what’s surely the definitive reading of Frankie’s Trade (other readings are available; here’s mine [*]). It’s well worth getting if you know about Bellamy, and a must-have for anyone curious about the Bellamy/Kipling oeuvre. Even the stuff I don’t much like is good, and lots of people will like it more than I do. I guess I just find it a bit, well, polite. (James Yorkston’s Folk Songs album had a similar problem for me; Musgrave [*] shouldn’t be subdued. Brutally murdered, yes.)

You can read much more about this album, and hear the tracks by Jon Boden and Emily Portman, here, and you can buy it here (£10).


My feelings about John Kelly’s second album For Honour and Promotion are less mixed. Not entirely unmixed: I’m less keen than John on songs with lines about “dear old Erin” (By the Hush) or songs in which the singer reminisces about having his way with girls by way of a combination of persuasion and judo: the words “her feet from her did glide” or similar appear in two different songs on this album, which for me was one too many. Also I can’t hear The Days of ’49 without hearing in my mind’s ear what Peter Bellamy (him again) did with it, in comparison with which anyone will suffer. But these are very minor cavils about a truly outstanding album.

John has a rich and expressive voice, accompanied on this album by his own harmonium, harmoniflute [sic], guitar and cittern; he also delivers one song unaccompanied – a superb version of When a man’s in love [*]. Whether you call all the songs on this album ‘traditional’ is one for the taxonomists, but they’re certainly all old; John lists sources including “the Scots Musical Museum (published in 6 volumes between 1787 and 1803)” and “Tipperary man Charles Kickham (1828-1882)”. As you can see from the track listing, there are English and American as well as Scottish and Irish songs here; other sources cited include the Penguin Book of English Folk Songs and the Mudcat Café.

If I start listing particularly good tracks it’ll be hard to stop, but I will mention three tracks with harmonium accompaniment: I’ve never heard a better version of The streams of lovely Nancy [*], and John’s treatments of Greenland Whale Fisheries and Canadee-i-o are a revelation. Both of these songs are taken surprisingly slowly; I’m not sure why this works as well as it does, but I think it’s something to do with the unselfconscious passion with which John delivers the songs (no solemnity here). The Child ballad Mary Hamilton [*], accompanied on cittern, is hypnotically brilliant, gripping the listener despite its considerable length. But if I had to single out one song as the best thing on the album it would be As I was a-wandering (often attributed to Burns, although John’s notes don’t mention this) [*]. Accompanied on cittern, John’s rendering of this song is simply one of the most beautiful pieces of music I’ve ever heard, in any genre.

UPDATE I’m delighted to be able to say that John’s Web site now includes clips of several songs from this album, as well as some from his (excellent) first album. Have a listen.

You owe it to yourself to hear this album if you’ve got any interest in traditional song – and if you haven’t, you should hear it to find out what you’re missing. It can be obtained from John for £10 plus postage; write to harmoniumhero at hotmail dot com.


Back to Folk Police for the label’s very first release, at least according to the catalogue number: Rapunzel and Sedayne’s first commercially-available album, Songs from the Barley Temple. I’ve got another personal connection to declare here, as I know Rachel and Sean personally & have shared quite a few singarounds with them; the night when the lights went out, a couple of verses into R+S’s Green Grow The Rushes-O, will live in my memory for some time.

As will this album, which I played until I’d worn it out with over-familiarity. (I’m planning to go cold turkey for a while and rediscover it some time next year.) It’s wonderful. Some may find the sleevenotes a bit pretentious, and to be honest I may be one of them – when Sedayne describes Porcupine in November Sycamore as an “old-time field holler in the Javanese Pelog mode” I’m left none the wiser, and I could have preferred something a bit more straightforwardly informative (perhaps along the lines of “Robin Williamson didn’t write this, but I bet he wishes he had”). But the song is superb, which is the main thing; on the album it’s 6 minutes 47, and the first time I heard it I was genuinely disappointed when I realised it was ending. (The album closes with a reprise of the song, which doesn’t seem self-indulgent or excessive; it’s just nice to hear it again.)

This isn’t an album of new compositions; only two and a half songs here are originals, while a third – Outlaws – is a setting by Rapunzel of a poem by Bonnie Parker (of ‘and Clyde’ fame). Most are traditional. Some are ‘standards’ (e.g. True Thomas [*] and a terrific Blackwaterside [*]); some are less familiar (Handsome Molly, Katie Kay, Robin Redbreast’s Testament), while one standout track is a highly unfamiliar version of a trad ‘standard’, Jim Eldon’s Owld Grye Song (more commonly known as Poor Old Horse [*]).

The songs were recorded ‘live’ and without overdubs, making for a surprisingly narrow sound palette – ‘surprisingly’ inasmuch as it doesn’t sound narrow! Rapunzel’s banjo, Sedayne’s fiddle and their voices – solo and in close harmony – are supplemented on different tracks by drum, harmonium and overtone flute, as well as by the semi-random burbling of something called a Kaossilator (which can be heard to good effect on Porcupine and Owld Grye). An unpredictable combination of elements – Rapunzel’s pure voice and banjo, Sedayne’s drones and free improvisation, the passion for the old songs which they evidently share – blends to create something greater than the sum of its parts.

It’s a terrific album. Read another review, find out more about Rapunzel and Sedayne, and buy the CD (£10). Incidentally, the vaguely Wicker Man-ish phrase ‘Barley Temple’ has much more prosaic origins; Sean is a demon anagrammatist, and a big fan of a singer who’s already been mentioned in this review.


As it was released in 1993, this album doesn’t really belong in this post, but I’m going to include it anyway. I was slightly into folk back in the mid-1970s but only quite dimly aware of it between about 1975 and 2005; this has meant retrospectively discovering the entire careers of an embarrassing number of quite major artists (notably Nic Jones, Tony Rose, Tony Capstick and of course Peter Bellamy). What’s been even more embarrassing is the realisation that I’ve also missed out on another whole generation of folkies – essentially, people of around my own age, who started working after the Revival had more or less ebbed away, and most of whom are still going. Among whom, Jo Freya.

A caveat of sorts: as you can see from the cover art, one of these things is not like the others. This looks like the kind of generic album which used to be on sale in places like Past Times; this isn’t too surprising, as it was sold through Past Times. Gef Lucena’s Saydisc label produced a number of similar albums, including Traditional Songs of Wales (sung by Siwsann George) and Traditional Songs of Scotland (sung by Ray Fisher). In the case of this album, Gef Lucena was also responsible for the production, the arrangements (on all but one track) and the sleeve notes.

So maybe this album isn’t so much Jo Freya as Gef Lucena And Friends, Featuring Jo Freya. Either way it’s pretty good. It includes 21 songs (count ‘em), covering most of the angles in English song: love (I Live Not Where I Love [*]), war (General Wolfe [*]), love and war (The Green Cockade [*]), religion (The Carnal and the Crane), magic (the Broomfield Wager), sex (Maids When You’re Young), work (Fourpence A Day)… Jo’s in good voice throughout – on some very varied material – and some of the settings, played mainly on strings, concertina and recorders, are terrific. I particularly like the songs featuring Nigel Eaton’s hurdy-gurdy – the thoroughly daft As I Set Off For Turkey in particular – and the unaccompanied William Taylor [*], which was sung and arranged by Jo and her sister Fi Fraser.

This isn’t an album to frighten the horses (or cows); it’s tastefully done, and both the backings and Jo’s vocals sometimes sound a bit reined-in. But quiet and tasteful arrangements can work extraordinarily well in folk – think Shirley and Dolly Collins – and this album includes some really memorable versions of great songs: General Wolfe, Rounding the Horn [*], All Things Are Quite Silent, As Sylvie Was Walking, A Sailor’s Life…

You can see what Jo Freya’s been up to since 1993(!) here. You can buy this album (and much else) directly from her.


Another Folk Police album? Hey, why not.

The Woodbine and Ivy Band are a kind of Folk Police house band; their debut album features ten traditional songs, each with different lead vocalists and very different sonic atmospheres. Some singers – Olivia Chaney, Elle Osborne, Fay Hield, Rapunzel and Sedayne – also appeared on Oak Ash Thorn; others include Jackie Oates, Jim Causley and Pinkie Maclure.

The album that resulted is, frankly, rather special. The producer, Peter Philipson, clearly set the controls for the heart of the Seventies, but without confining himself to the ‘folk’ shelves: the Roaming Journeyman (sung by James Raynard) is essentially “Hawkwind play trad”, while Derry Gaol (Jackie Oates) sounds like a long-lost track from an early Robert Wyatt album, complete with Mongezi Feza-esque overlapping trumpet lines. A lot of work and a lot of listening has gone into this album: no two tracks sound alike, from the tremulous hush of Under the Leaves (Elle Osborne), through the none-more-Wicker-Man Gently Johnny (the Memory Band’s Jenny McCormick), to the kitchen-sink alternative-Christmas-single Spencer the Rover (Fay Hield) [*].

There isn’t a weak track on here; my personal favourite, though, is Poor Murdered Woman [*], in which Olivia Chaney’s beautiful and affecting vocals are perfectly paired with a backing dominated by trumpet and pedal steel.

You can read more about this album, and hear Gently Johnny and the Roaming Journeyman, here. Buy it here (£10).


Folkies are weird. When a (relatively) young and hip band like the Futureheads released Rant – an album of unaccompanied singing, including three no-messing folk songs – I expected it to be greeted with wild huzzas; at the very least I expected an approving nod or two. (Admittedly, folkies aren’t the only people who sing unaccompanied, but we do do a lot of it; I still think it’s the only way to deliver some songs with big choruses, and some solo songs for that matter.) Instead, one of the two folk fora [Lat.] that I frequent ignored it completely – not out of pique, as far as I can tell, but because the regulars genuinely hadn’t noticed it. At the other, it was greeted with a rather ungracious note about how certain traditional songs had become clapped-out and unlistenable through overuse, specifically including two of the three traditional songs on the Futureheads album.

Well, I like it. As well as those three traditional songs – The Keeper, The Old Dun Cow and (hidden track) Hanging Johnny – the album includes four of the Futureheads’ own songs and a scattering from other sources, ranging from Richard Thompson to the Black-Eyed Peas via Sparks (The No. 1 Song in Heaven). (They don’t do Hounds of Love, but you can’t have everything.) As far as clapped-out songs are concerned, incidentally, I do know The Old Dun Cow back to front, but I’d actually never heard The Keeper before I got this album; it may have been done to death in the 70s and 80s, but I wasn’t going to singarounds back then. Nor indeed were the Futureheads.

It’s a nice album. The louder and more aggressive songs perhaps work better – there’s a limit to how much sensitivity and restraint four blokes can deliver – but the arrangements are interesting throughout and the harmonies are spot-on. In conclusion may I say, in my role as an ageing bearded folkie, that it’s an Encouraging Sign when A New Generation discovers (cont’d p. 94)


The Magnetic Fields’ Love at the Bottom of the Sea is a short album consisting of 15 short songs (they range from 2:01 to 2:39). Seven are sung by the songwriter Stephin Merritt, the other eight shared between Claudia Gonson and Shirley Simms. A bit more Merritt would have been good – he has a beautiful singing voice. The sound palette is rather insistently synthesiser-heavy; TMF haven’t used any synths for their last few albums, and this is the return of the repressed, or something. According to the booklet there are a whole range of instruments being played here – guitar, piano, autoharp, cello, trumpet, flute, violin, accordion, musical saw… I’ve only been able to make out the first five of these, and some of those have been processed to the point where they sound like synth patches; presumably the rest are even lower in the mix. The dominant sound of the album is the swish, blatt and scronk of the more experimental end of mid-80s synth pop.

But all you really need to know is that there are songs on this album with lyrics like this:

“A pity she does not exist, a shame he’s not a fag.
The only girl I ever loved was Andrew in drag.”

“I’m gonna fly back to Laramie,
Let Laramie take care o’ me till they bury me.”

“Oh if only you were the only boy in town
For then I could not play the field and let you down
I would not go half-mad
For each passing lad
With eyes of blue, green, grey or brown…”

“I have taken a contract out on you,
I have hired a hitman to do what they do.
He will do his best to do his worst
After he’s messed up your girlfriend first.”

Not to mention a brief, sad, funny song called (self-explanatorily) I’d Go Anywhere With Hugh. (If that title on its own makes you laugh, you’ll like this album. It still gets me every time.)

‘Witty’ is one word for writing like this, but I don’t think Noël Coward [*] ever had this kind of emotional range; there’s frustration, bitterness and rage in these songs, as well as multiple shades of love and lust. This is great songwriting; even the slightest songs give you something to think about, and the best wring your heart out. Another time more acoustic instruments would be good, and more vocals from Stephin, but still – a fine album.


Have I mentioned the Folk Police label recently? They’ve got a compilation album out, you know. No, not that one; this is an album associated with a one-day “Weirdlore” festival, which was scheduled earlier this year but unfortunately didn’t happen.

“Weirdlore: Notes from the folk underground”: what’s that about? Nobody seems entirely sure. What you get here includes three songs about witchcraft, one about shape-shifting, one about tree-worship and one about moss. One song is about Grendel and one about Loki; there’s a song in Cornish and an instrumental with a title in Anglo-Saxon. So that’s ‘weirdlore’ for you, perhaps.

The CD booklet includes some rather unhelpful stuff about what this genre isn’t, which sometimes gives the impression of being written by people who don’t actually like folk: this isn’t “the narcissistic mid-Atlantic songwriter strummery, the same-old same-old bearded Folkistani clichés or the Coldplay-with-banjos syndrome”, nor is it “over-serious wickermania, twee faux-pagan pholklore and retro-folkadelia” (Ian A. Anderson). May I also add that these aren’t folk singers “sitting in a dilapidated pub somewhere churning out endless verses about someone with a stupid name getting garrotted” or “bottom-of-the-bill nobodies, with a battered acoustic guitar, bleating on about their crummy lives”; nor indeed are they “Mumford & Sons, Laura Marling et al pick[ing] up multiple Mercury and Brit nominations along with their royalty cheques” after making music that “has, wincingly perfectly, been dubbed The New Boring.” (Jeanette Leech)

For me all this prompts two questions: “so what do you like?” and “are you sure you ought to be listening to folk music?” Call me excessively logical, but it seems to me that if I wanted to hear music that couldn’t be confused with ‘bearded Folkistani clichés’ and ‘endless verses about someone with a stupid name getting garrotted’ I’d be best off avoiding English traditional songs altogether – and if I didn’t want to hear anything even slightly resembling ‘narcissistic mid-Atlantic songwriter strummery’ from ‘bottom-of-the-bill nobodies with a battered acoustic guitar’, cutting out songwriters playing acoustic guitars would be a good move. (And if I really hated “twee faux-pagan pholklore and retro-folkadelia” I probably wouldn’t listen to many songs about witches and moss.) The thing is, there’s an awful lot of music out there that passes the no-beardie, no-strummery, no-faux-pagan tests with the greatest of ease: I’ve listened to a lot of Underworld and cLOUDDEAD in my time, a great deal of Faust and Soft Machine, and a fair bit of Bach. So why on earth should I listen to folk, if most of it’s so bloody awful?

What seems to be at work here is a rhetorical device that people often use to promote a new variety of something to a sceptical audience, outflanking the punters’ resistance by endorsing their prejudices instead of challenging them – “Don’t like folk? Think it’s tedious rubbish? Well, you’re right – most of it is tedious rubbish! But not this kind of folk…” (See also BrewDog.) I think it’s a really bad idea, on more than one level. Most obviously, it’s not doing any favours to all the other folkies in the world; you’re either on the bus or yah boo sucks, boring same-old twee Folkistani nobodies! (See also BrewDog.) I also think it’s not a good look on an emotional level: it’s based on maintaining a constant level of negativity, with every blessing offset by a curse, instead of trying to move the conversation away from what’s bad altogether. Plus it plays havoc with your critical vocabulary: once you’ve come out with blanket condemnations like the ones I’ve quoted, what will you do if you hear an unknown singer-songwriter with an acoustic – or a bearded folkie doing a full-length Young Hunting [*] – and you actually like what you hear? (Answer: you’ll probably end up using the word “different” a lot, falling back if necessary to regroup at “indefinably different”.)

On a more positive note, Ian Anderson describes music of the ‘weirdlore’ school as “diverse, original, fascinating and occasionally delightfully eccentric stuff” which is “indefinably [sic], umbilically connected to our sometimes odd English folk traditions or reflect[s] their spirit”. So I guess that’ll have to do: it’s all different, it’s original, it’s indefinably umbilically connected. Weirdlore: it’s new, it’s interesting, it’s vaguely sort of folk…ish.

I should probably review the album, shouldn’t I? There’s a fair amount of reverence on display here, unfortunately. Unlike Oak Ash Thorn, there aren’t many acolytes in the temple of folk-rock on this album, but there are several people who have looked back a little further – to West Coast psychedelia, to Roy Harper, to Nick Drake, to early Jethro Tull (sorry, Ian) and especially to the Incredible String Band. There are a few introspective finger-pickers, singing about who knows what; then there are those three songs about witches, along with several others whose sound can only be described as “wifty-wafty”. Several of the contributors here seem to have watched The Wicker Man a hundred times without ever getting as far as the last scene. (Christopher Lee’s the villain, people! It’s a horror film, not a holiday programme!) Moving up the scale a bit, there are some acts – Wyrdstone and Foxpockets in particular – who are basically doing interesting variations on indie; I’d give them a Peel session, or whatever the equivalent is these days.

And then there’s the really good stuff. In roughly ascending order: Pamela Wyn Shannon‘s Moss Mantra is hypnotic, magical and rather funny – although, given that it comes from an album called The Phantasmagoria of Plant Mantras, not all of these effects may have been intended. Alasdair Roberts‘s Haruspex of Paradox – the song about Loki mentioned above – is entrancing; it very nearly justifies that awful title. (Let’s not revive prog, eh?) Hora by the wonderfully-named Boxcar Aldous Huxley is a rackety rendition of a traditional Eastern European dance tune, featuring klezmer-ish clarinet and musical saw. (‘Hora’ is a style of dance – it’s a bit like calling a track Jig.) It sounds great – reminiscent of Barry Black, one of the great lost albums of the 90s – although the folkie old fart in me can’t help thinking they’d sound even better if they put some hours in, found some dancers to play for and did it properly. (My daughter, who dances to this kind of thing, heard it and said “yes, if you sped it up it would sound like a hora”. Out of interest, I’ve tried speeding it up using Audacity; about 60% faster, it sounds terrific.) Harp and a Monkey are an odd band, who seem to look back to an altogether different corner of the 1970s. Forty years ago the Northwest of England was awash with folk acts, mostly playing working men’s clubs, with a bias towards jokey and local material. This was where Mike Harding came from, not to mention Tony Capstick and half a dozen other ‘names’ who you probably wouldn’t have heard of. Singing topical and political songs in their own accents, with a folkie d-i-y vibe (a child’s xylophone is a central part of their sound), Harp and a Monkey seem to evoke that lost period in British folk and bring it into the twenty-first century. Unusually, on this album they perform a traditional song – the shaggy-dog story/dirty joke The Molecatcher. They claim, scrupulously, that the chorus and some of the verses are their own additions; I would never have known. A terrific rendition – more please. Sproatly Smith are a wonder and a mystery; I don’t know who they are, how many of them there are or what they play. The image which came to mind on hearing their Rosebuds In June, and which has refused to be dislodged ever since, is “it’s like something from the Wicker Man, if the Wicker Man had been a 1960s children’s TV series about time travel”. On reflection… yep, that’s precisely what it sounds like. Finally, there are Rapunzel and Sedayne, appearing for the fourth(!) time in this post, and on this occasion playing an absolute blinder. R+S excel themselves with The Innocent Hare – a lolloping, languidly exuberant reading of a hunting song from the Coppers’ repertoire. Sedayne’s fiddle and the interplay of his and Rapunzel’s voices have never sounded better; it’s a wonderful track. (The hare gets away, in case you were wondering; the hunters give up, go off to the pub and drink her health (hares are always female). Happy ending!)

My advice? Bearing in mind my own strictures on people who accentuate the negative, let me just say that an EP consisting of the six tracks listed in the previous paragraph would be worth a tenner of anyone’s money. (It would also have a much more cohesive sound and feel than the full album. Just saying.) All that and another nine tracks, several of which are thoroughly listenable (I am available for ads and poster campaigns), and some of which you’ll probably like more than I did. Yours for £10 from Folk Police.


When it was released last year, every review of King Creosote and Jon Hopkins’ Diamond Mine seemed to include the word ‘folk’; one even described the songs as ‘typical folk songs’. This sparked off the original idea for this post, which was going to set Diamond Mine alongside John Kelly’s album and perhaps one of the Folk Police ones, with a view to working out what ‘folk’ meant in this context.

Then I forgot all about it, and ended up writing a review of eight different albums without even mentioning this one.

First things first: the first song on this album genuinely sounds as if it could be a traditional song, or at least a song written in the neighbourhood of traditional songs. At least, it does to begin with:

Today John Taylor starts his month away
On a boat 110 miles East of Aberdeen
A dozen men, thirty days with 24 hours in each
Of shattered boyhood dreams and not much sleep

I’d much rather be me.

No! Tell us about John Taylor! Tell us about the life of a North Sea fisherman! Don’t tell us how you feel about it all – why would anyone care how you feel about it all, especially when all you can think of to say is that you’re glad it’s not you? We know that already – that’s practically the entire point of telling us about a hard life like John Taylor’s, to sympathise with him, praise his fortitude and endurance, and thank the Lord it’s him going out there and not us. “I’d much rather be me” – is that it? Is that the depth of your imaginative identification? What a falling-off – a verse and a chorus and we’re out of Shoals of Herring territory and into me-me-me. Bloody singer-songwriters…

Such were the thoughts that went through my head, particularly when KC got through the second verse and embarked on a ruminative section built on the tried and tested “I’d much rather be me”.

Hey ho. There are seven tracks on this album: an opening instrumental, John Taylor’s Month Away, then four deeply personal songs written in chains of semi-private semi-metaphor (“For after our accident we lost our no claims/And now I hate those pastel shades”). The last song, closing the album, is the shortest and simplest, and perhaps the best:

It’s your young voice that’s keeping me holding on
To my dull life, to my dull life

Beautiful and affecting. And this is, above all else, a beautiful album. KC’s voice is the voice of an angel, and Jon Hopkins’s arrangements and production are elegant and sometimes startlingly inventive. (My Blackwaterside is heavily influenced by the production of Your Young Voice.) The whole album has a still, untroubled atmosphere; songs emerge from the hush and gradually merge back into it. But the songs themselves – wordy, playful, always spoken by an “I”, always addressed to “you” – have more in common with the songs on the Magnetic Fields album than with any of the traditional songs I’ve mentioned. (The situations in the Magnetic Fields songs are fictionalised vignettes described straight, in the show-tune style; the KC songs take real situations and describe them opaquely, in the singer-songwriter style. But the two forms are very closely related: they’re both about revealing while not revealing, and in both cases what’s being revealed and not revealed is an emotion felt by the writer.)

Interviewed in 2008, James Yorkston disclaimed the label of ‘folk’ for his own work:

Folk is a word that means something different to practically everyone you ask, from the music in the fields passed down from mouth to ear to all the different music that’s out there. For me the word “folk” has always meant traditional folk so for me the word “folk” doesn’t describe what I do because I write pop songs, even though they’re not very popular. One may say it’s folk and that’s one’s opinion and that’s fine but it’s not my opinion, folk has always meant traditional folk. It’s not a big thing, it’s not a war cry or anything.

To put it another way, if Diamond Mine is folk, then ‘folk’ means two completely separate things. It’s simpler and more straightforward, surely, to say that KC also writes pop songs, even though they’re not very popular. Still – nice album.


So, to sum up, “Buy my mate’s records.”
- Not entirely! Four of these nine albums are on the Folk Police label (and I paid for all of them except Weirdlore). Hand on heart, the Woodbine and Ivy Band and Rapunzel & Sedayne CDs are great albums; the other two I didn’t rave about particularly. The one album you should get before any of the others is John Kelly’s.

He’s not a mate as well, by any chance?
- Well, I know him to talk to. I’m more of a fan.

While we’re doing Qs and As, what’s so great about all this traditional stuff anyway?
- I always say it’s the words, which may explain how I can rave about John Kelly and Stephin Merritt in the same post. Listening back to some of these songs, it occurred to me that that’s literally true – often what anchors a song in my mind is a single word, usually one that’s not quite right. Boney’s Lamentation: “We marched them forth in inveterate streams“. Inveterate streams! The Innocent Hare: “Relope, relope, retiring hare!” Relope! More generally, what you get quite consistently in traditional songs is turns of phrase which snag in your mind because they’re just rhythmically and musically perfect. The Innocent Hare is full of them; a favourite of mine is “Go tell your sweet lover the hounds are out”. Why ‘sweet’? Why does ‘sweet’ make it such a good line? Lines like this have been polished through repetition and re-remembering over the years – polished till the pebbles shine.

The songs aren’t all that great, though. And they haven’t all been preserved through oral transmission for any length of time, for that matter.
- Everyone’s a musicologist all of a sudden.

No need to get narky. I’m arguing with myself, remember.
- I’m hardly likely to forget.

Yes, well.
- Moving along. There’s obviously something about the impersonality of traditional songs – the way that they’re not in the singer-songwriter style – that appeals to me. This may not apply to anyone else, but then again it may: I suspect that once you’ve got the taste you never quite go back. But I think what I really love about folk music is that it’s a participative art form, based on a collective sharing of the material: Jo Freya sang William Taylor, so did John Kelly and so have I. They’re totally different renderings – they even have different words and tunes to some extent – but it’s the same song. And the song’s still there for the next singer to pick up. That’s the real point of all those asterisked links up there; they’re not (just) a cheeky attempt to drive traffic to my 52 Folk Songs site. Everyone can contribute; everyone can do the very same songs. Folk is really unusual in this respect. When singers contribute to an album of songs by Leonard Cohen, you get a Leonard Cohen tribute album. When singers contribute to an album of traditional songs, you get a folk album.

And what do you get when one person records a traditional song every week for a year?

52 Folk Songs, of course. Six download albums are now available, with two more to come; some of them are quite good and all of them are remarkably cheap.

Moving along… Final question: why now?
- The idea for this post has been buzzing around for a while, which is probably why it’s ended up being so long. It had to be written now because I’ve just succeeded in tracking down a copy of the Magnetic Fields’ monumental triple album 69 Love Songs – in name at least, a definite influence on my own project – and expect to be immersed in it for some time. Which means it’s going to be Goodbye, Piccadilly, farewell, Leicester bloody Square on the trad front for a while.

You think it’s going to be good, then?
- I already know five of the 69 songs, and three out of those five are among my favourite songs in the world. I think it’s going to be good.

Enough?
- Or too much.

Come write me down

There’s a particular form of serendipity that comes from learning something in one area which resolves a puzzle, or fills a gap in your thinking, in another area entirely. It’s all the more serendipitous – and pleasant – if you didn’t realise the gap was there.

This line of thought was prompted by this piece on the excellent FactCheck blog, which made me realise that I’d always been a bit dubious about the notion of “policy-based evidence”. OK, it’s a neat reversal – and all too often people who say they’re making evidence-based policy are doing nothing of the sort – but is the alternative really policy-based evidence? Doesn’t that amount to accusing them of just making it up?

Thanks to Cathy Newman at FactCheck, I realise now that I was looking at this question the wrong way. Actually “policy-based evidence” means something quite specific, and it hasn’t (necessarily) got anything to do with outright fraud. Watch closely:

Iain Duncan Smith has been celebrating the government’s benefits cap. Part of the welfare reform bill, state handouts will be capped at £26,000 a year so that “no family on benefits will earn more than the average salary of a working family,” i.e. £35,000 a year before tax.

Today, the work and pensions secretary was delighted to cite figures released by his department which he said were evidence that the policy is already driving people back into work. Of 58,000 claimants sent a letter saying their benefits were to be capped, 1,700 subsequently moved into work. Another 5,000 said they wanted support to get back into work, according to the figures.

OK, this is fairly simplistic thinking – We did a new thing! Something happened! Our thing worked! – but it’s something like a legitimate way to analyse what’s going on, surely. It may need more sophisticated handling, but the evidence is there, isn’t it?

Well, no, it isn’t.

In order to know how effective the policy had been, we would need to know the rate at which people on benefits worth more than £26,000 went into work before the letter announcing the changes was sent, and compare it to after the letter was received. But those figures aren’t available.

“[These figures do] not reveal the effect of the policy,” Robert Joyce, senior researcher at the Institute for Fiscal Studies told us. Mr Joyce went on: “Indeed, this number is consistent with the policy having had no effect at all. Over any period, some fraction of an unemployed group will probably move into work, regardless of whether a benefits cap is about to be implemented. The number of people who moved into work as a result of the policy is 1,700 minus the number of people who would have moved into work anyway. We do not know the latter number, so we do not know the effect of the policy.”

The number of people, in a given group of claimants, who signed off over a given period is data. Collecting data is the easy part: take five minutes and you can do it now if you like. (Number of objects on your desk: data. Number of stationary cars visible from your window: data. Number of heartbeats in five minutes: data.) It’s only when the data’s been analysed – it’s only when we’ve compared the data with other conditions, compared variations in the data with variations in those conditions and eliminated chance fluctuations – that data turns into evidence. The number of people who moved into work as a result of the policy is 1,700 minus the number of people who would have moved into work anyway: that number would be evidence, if we had it (or had reliable means of estimating it). The figure of 1,700 is data.

One final quote:

A spokesman for the Department for Work and Pensions said: “The Secretary of State believes that the benefits cap is having an effect.”

Et voilà: policy-based evidence.

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