Category Archives: academe

The gate to the law

The other day I was reading what I believe is the latest (and trust is the last) instalment in the long and almost epistolary debate between Matthew Kramer and Nigel Simmonds on the inherent morality of the law. (Nothing to say about that at the moment.) After following a few footnote references a song came unbidden to mind:

O Lord, won’t you buy me a sub to Jurisprudence?
The papers of interest are so multitudin’s!
Worked hard all my lifetime – ain’t no Homo Ludens -
So Lord, won’t you buy me a sub to Jurisprudence?

Or, more wistfully,

I often dream of reading Jurisprudence
I recommend it to selected students
I dream of it constantly
Accessed through the British Library,
Oxford or Cambridge,
Or Birmingham…

My institution, in other words, doesn’t subscribe to the journal where some of the key debates in a topic that fascinates me are being carried on. (As indeed most institutions don’t – the list above is exhaustive as far as I know.) There’s a simple solution, of course; it’s called an inter-library loan. The only problem is the opportunity cost – by which I don’t mean the (fairly trivial) effort of going to the library and filling in a form, but the fact that deciding to do so would inevitably remind me of all the reading I’ve already got queued up (physical books included). So for now those papers by Simmonds, Gardner, Finnis et al are just going to have to wait.

Getting introspective for a moment, Jurisprudence and its non-availability are a bit of a Russian doll for me. A series of worries and fears are nested behind my resentment of not being able to get hold of it: the suspicion that if I had those papers I wouldn’t get round to reading them; and that if I did it would just be an intellectual hobby – I wouldn’t actually be able to use them, e.g. by writing anything (or anything I could get published); and that, if I wrote something properly theoretical and got it published (which is a big if), I still wouldn’t be in the kind of job where writing this kind of stuff was expected and approved. But perhaps those aren’t independent worries; perhaps it’s just an inner voice saying yeah, but it wouldn’t work… And actually that’s precisely what I don’t know. (More to the point, I don’t know how going down that route would work, or what precisely it would lead to.) So perhaps I just need to give it a go and see what happens. Including an ILL for an issue or two of Jurisprudence – at least, once I’ve got through the backlog.

I’m also wondering about further qualifications. Getting a Graduate Diploma in Law would take two years of fairly intensive part-time study (where the year runs October-June). I could do the same thing by taking Open University modules; this would take four years of what would also be fairly intensive part-time study (year running February to October). Comparing the OU option with the GDL, the prospect of taking twice as long for the same qualification at once attracts and repels me: it would be a good learning experience, but do I want to commit that much time and effort? There’s also the fact that, while getting some Law under my belt would suit me personally, it wouldn’t benefit me greatly in the job I’m actually doing – and doing the degree would make me ineligible for research funding from some sources, which would be a positive disadvantage.

Don’t know where I am with that; all comments welcome. In the mean time, here’s the abstract of a paper I’ve just had accepted for publication (Journal of Criminal Law):

New ASBOs for old?
The Anti Social Behaviour Order (ASBO) was designed as a civil/criminal hybrid, preventive in structure and with a largely undefined object. After 2002, legal challenges to the ASBO led to the use of justificatory arguments from cumulative effect, and to the introduction of new measures which offered to regulate anti social behaviour in more legally acceptable forms. The Coalition currently proposes to replace the ASBO with two new instruments: a post-conviction Criminal Behaviour Order (CBO) and a wholly-civil ‘injunction to prevent nuisance and annoyance’ (IPNA). While the CBO and IPNA build on this history, it is argued that they do not represent a new approach to anti social behaviour so much as a continuation of the ASBO by other means.

And the abstract of a paper I’ve just submitted to a conference next year on “Penal law, abolitionism and anarchism” (feat. Joe Sim and Vincenzo Ruggiero):

Law after law? Abolitionism and the rule of law

Liberal legal theorists have argued that the law has an inherent morality (Simmonds 2007), making it an intrinsically valuable social project, and that the institutions and practices making up the rule of law encapsulate key virtues of the concept of law (Waldron 2008). However, the rule of law as we know it is predicated on two concepts which are alien to anarchist and abolitionist perspectives – the state, its authority ultimately guaranteed by unchallengeable coercive power, and its antagonist the rights-bearing, self-interested individual. Can we think in terms of the rule of law without invoking state coercion or competitive individualism? Is the morality of law an ideological construct specific to the era of capitalist competition, or does it embody ideals which would remain valuable in a society not predicated on capitalist economics and state coercion? If we assume that such a society would have its own (rule of) law, how do we envisage transitional or prefigurative forms of law? This paper suggests some provisional answers to these questions, drawing on contemporary jurisprudential debates and on studies of the alternative legalities imposed by gangs and ‘armed struggle’ groups.

Now I just need to write one explaining the connection between those two…

Footnote OTD

Ancient Athenians could not fetch beer from the fridge of the Vice-Chancellor of Cambridge University

- from note 15 to Nigel Simmonds (1995), “The analytical foundations of justice”, Cambridge Law Journal 54(2)

(In context it’s actually a very good point.)

Bavarian gentians

Not every man has felt the pure delight
- the un-self-conscious delight – of sitting forward
suddenly upright and alert, a swallow of beer
still coating the back of his throat as he sits forward
alert on the stained and punctured leather cushion
Detroit soul hanging in the air unheard… it is not
as I say, every man who has known
the unthought joy of budging forward, alert,
glass in hand or close by, saying aloud
(and none too quietly), “Are you on crack?”
addressing the query to a book about the law.

Reach me a gentian, give me a torch… I’m currently reading A debate over rights, for the second and probably not the last time. Heaven knows if I’ll ever make a living – or even score a research grant – out of this stuff, but as reading matter goes I am really enjoying it.

More importantly, I’m liking the directions it’s leading me. To be perhaps more clear than I usually am on this topic, it’s been my conviction for a while that (firstly) there’s something deeply unsatisfactory – something less than fully or universally human – about models of subjecthood predicated on a Kantian model of the rights-bearing individual; and that (secondly) all currently available alternatives – whether they start from a utilitarian calculation of costs and benefits to society as a whole or from less hard-edged assertions of the rights of the ‘community’ – are even worse. We – particularly a Marxist ‘we’ – need something better than a Kantian liberal model of society as composed of individual bearers of jointly compossible rights, but in order to get there I believe we’ll need to wring the liberal model dry, or push it till it breaks. It’s going to be a big job – and, in fairness, reading Kramer et al in a pub may not seem like much of a contribution to it. But it is giving me food for thought in great quantities – even, or especially, those passages I strongly disagree with – which I appreciate greatly. Thanks again, Matthew and Nigel.

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.

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).

A man he may grow

Michael Rosen’s written a long and thoughtful piece about his experience of the grammar school system in the 1950s. I don’t know if it’s going to appear in print or on a higher-profile blog, but at the moment it’s just a post on his own blog – and he’s such a prolific poster that it’s going to roll off the bottom of the front page at any moment.

So catch it while you can – it’s a must-read for anyone who’s interested in the debate around grammar schools, or interested in debates about selective education, or secondary education in general. And anyone who’s got kids at school, has kids at school or is ever likely to. And anyone who went to a grammar school, or a selective school, or a comprehensive, or a secondary modern… Basically, you should read this.

It rings so many bells, both positively and negatively (really? we didn’t do that) that I’m tempted to live-blog my reactions to it, but that would be rather self-indulgent. I’ll just mention one small detail of Rosen’s story. He mentions that he was born in 1946, his mother’s second son, and that she died in 1976, aged 55. My own mother had her 55th birthday in 1976; I had my 16th. The coincidence of one date, and the differences of the others, raise all sorts of questions. I can’t begin to imagine my life if my mother had died in her 50s; it was hard enough when it did happen, thirty years later. Then: is it easier for an adult to lose a parent who dies relatively young? Then: easier than what?

But back to school, and a detail of Rosen’s story that sparked off a problem-solving train of thought. He writes:

the pass rate for the 11-plus wasn’t the same for boys and girls and it wasn’t the same from area to area. That’s to say, it panned out at the time that girls were generally better than boys at passing this exam. However, the places for boys and girls was split evenly between us. Somehow or another they engineered what was in reality something like a 55-45% split into a 50-50% cent split. Clearly, some five per cent of girls were serious losers in this and some five per cent of boys some kind of gainers – at least as far as the system thought of us.

But that last sentence can’t be right.

Say for the sake of simplicity that the children taking the test were evenly divided between boys and girls, rather than being 49:51 or 48:52. Then we want to know how many kids passed, and then how many were pushed up or down to even up the figures. Another thing I learned from Rosen’s post is that the pass rate varied from region to region(!), depending on the availability of grammar school places(!!), but let’s forget that for the moment and assume that about one in five passed the 11-plus (in fact the proportion ranged from 30% down to 10%).

So we’ve got, oh, let’s say 10,000 kids, made up of 5,000 boys and 5,000 girls, and 2,000 of them are going to Grammar School, the lucky so-and-so’s. Now, 55% of those 2,000 – 1,100 – are girls, and only 900 are boys. So we need to balance things up, and we skim off the dimmest 100 girls who passed and promote the brightest 100 boys who didn’t (each and every one of whom is officially less bright, and hence less able to benefit from grammar school, than the 100 girls we’ve just sent to the secondary mod, but we avert our eyes at this point).

So that’s 5% of girls demoted, 5% of boys promoted? No – it’s 100/5000, or 2%. When you massage that 55% down to 50%, the 5% that’s lost is 5% of the cohort that passed the exam (male and female), not of the girls (passed and failed). You could also say that the really serious losers – the ones who have been unfairly discriminated against even by the system’s own standards – are 100 out of the 1,100 girls who passed: roughly 9.1%. The serious gainers, on the other hand, are 100 out of the 4,100 boys who failed, roughly (reaches for calculator) 2.4%.

So there you go: applied maths for real-world problem-solving.

Clearly, some two per cent of girls (or nine per cent of the girls who passed the exam) were serious losers in this and some two per cent of boys some kind of gainers – at least as far as the system thought of us.

At which point I feel a bit like Babbage correcting Tennyson, but it’s right, dammit. And besides, without the maths I wouldn’t have arrived at the figure of nine per cent – for the girls who passed the eleven-plus but were artificially failed to even up the numbers – which is pretty shocking.

Ho, OK Ed, on P-hoe knicks!

My sisters and I used to play word games on long car journeys. The one I remember best involved taking turns to make up a story: you’d pick up from where the last person left off, and (most importantly) you’d have to incorporate three words that they gave you. I remember our last ever round of the game: my sister, feeling that I was getting a bit too good at it, gave me the words “brouhaha”, “nugatory” and “persimmon”. I proved her right (after asking her to define ‘nugatory’) by telling a story that didn’t use any of those words once, until the closing line of dialogue (spoken by a bystander after the story was over):
“What a brouhaha over a nugatory persimmon!”

If you think this game sounds like fun, why not try it yourself? Here are some words to get you started:

best, bim, blan, chill, chom, gang, geck, grit, hild, hooks, quemp, shin, start, steck, thazz, tord, tox, ulf, vap, week

If you’re feeling a bit more ambitious, how about these?

blank, blurst, day, dentist, fape, finger, jound, newt, phone, rusty, scribe, slide, snemp, spron, starling, strap, stroft, terg, trains, voo

Go on, what are you waiting for? Just pile them all in if you’re not sure – I’ve got my best blim blan, I’m going to chill with the chom gang… Sorry, I mean bim blan – not blim blan, that would just be silly. It would also be wrong.

If you’re wondering what on earth I’m going on about – and who could blame you if you were – let Michael explain. Or rather, Michael’s contact in the Department for Education…

“I have been receiving some complaints concerning the excellent Phonics test which, thanks to me, all Year 1 children will be taking June.

“The test works like this: first of all the children read some real words. They’re not in sentences because that would be cheating. They’re just words on a page. Phonics words. What I mean by that is words that are regular. By regular I don’t mean small – like coffee cups. I mean that they are spelled like they are said. Unlike, er…’said’ which looks as if it should be said ‘sayed’. Which actually is the way some people say ‘said’. Look, this is really quite easy and obvious.

One of my younger sister’s alphabet books – Charlotte Hough’s My Aunt’s Alphabet, of which I was rather fond – had a vocabulary list at the back, with some words printed in red to warn you that they weren’t pronounced the way they looked. There was a problem with these red words, which I only spotted some years later, after moving to the North of England. “Grass”, for instance, was a red word, because to look at it you’d think it rhymed with “lass”, say, or “gas”. Which of course it doesn’t – that would be wrong. “Bush” was also a red word, because of that sneaky ‘u’ – you’d think that “bush” rhymed with “hush” or “lush”, whereas in fact… There’s no explanation of what makes the ‘u’ in “bush” (and “bull”) the wrong sort of ‘u’ – except in “bush” and “bull” (and “push” and “pull”, and so on); it just is. You don’t pronounce the B in “comb”, you don’t stress the first syllable of “abyss” and you don’t rhyme “hush” with “bush”. That would be wrong.

Er…where was I? Yes, the test. So, there’ll be words. Not sentences. Sentences complicate things because children start guessing words by where they are in the sentences. And by what the sentence means. And ‘meaning’ as we call it, really has very little to do with reading. Or words. Meaning gets in the way of reading. We need the children to read. Not mean.

Someone once tried to start a conversation with me while I was reading a book over lunch – I know, the nerve of it! – the book in question being Raymond Williams’s Politics and Letters (a book-length interview with some people from the New Left Review, and actually rather interesting, in fact a lot more interesting than the job I was doing at the time, wasted I was there, wasted). “What are you reading?” I angled the cover towards her in an only partly deliberately annoying way. She faltered but pressed on. “Oh… I like politics…” I didn’t think quickly enough to reply “Really? I prefer letters”; it’s probably just as well. Actually I don’t much like letters; I do like words, but the idea of words divorced from meaning is an odd one, to say the least.

Now the test also has some other kinds of words. These aren’t words. They’re just words that look like words. Words like ‘blurg’. or ‘Skonk’. If you’re a reader, you’ll read those. If you’re not a reader you won’t. Now some people have said that some little children taking the test will think that if there’s a word they can read but doesn’t make sense, they’ll try to make it make sense. … So, a child who can read, might see ‘blurg’ and because it doesn’t make sense, they’ll try to turn it into a word that does….’blurt’ or ‘blurb’ or something. Then they’ll be wrong and score badly.

But the good news is that we’ve been listening to what teachers have been telling us about this. So do you know what we’re doing? We’ve hired an artist who imagines what a ‘blurg’ might look like and he draws a ‘blurg’. There it is on the page next to the word ‘blurg’. A bit like a Flannimal. Now isn’t that fun? Now the child looks at ‘blurg’ and says to him or herself…’Ho ho ho, that must be a blurg’. Problem solved.

This is the sort of thing we do at the Department for Education. We hire people to do pictures of blurgs.

Readers, he is not making this up. At the end of this school year, primary schools in England really are going to administer a reading test to Year 1 children consisting of 20 words and 20 made-up words, and the children will be marked on whether they say them correctly. And the made-up words – but not the real words – really are going to have little pictures next to them – pictures of smiley monsters. You can read all about it here. (SFW. Some smiley monsters.)

Apart from the bizarre detail of associating non-existent ‘words’ with smiley monsters, this scheme (and I use the word advisedly) has one rather major flaw. How do you pronounce ‘chom’? Is that ‘ch’ as in ‘Christian’ or as in ‘champagne’? What about ‘geck’ – GE without a U or an H in the way is a ‘soft’ G (as in “gem”), so presumably it’s ‘jeck’. Except that sometimes GE is ‘hard’ (as in “get”), so maybe it should be pronounced… er… ‘geck’… like it’s spelled… sort of. Then, what if some poor kid thinks the ‘geck’ smiley monster is in fact a gecko and misreads the ‘word’ accordingly?

And don’t get me started on ‘jound’.

Oh, go on then. How do you pronounce ‘jound’ – what’s the right pronunciation? Is it two separate vowel sounds run together (“Joe, under his rough exterior, was a kindly soul”) or separated by a glottal stop (“jo’und day stands tiptoe on the misty moun’ains, pet”)? OK, we don’t usually do those things in English – well, we don’t usually do those things in Standard English – well, I say we don’t usually… Well, anyway. Those pronunciations aren’t very likely to come up in English… er, standard English… er, the kind of English we… those pronunciations are wrong.

Some people might get different ideas about that tricky ‘ou’ digraph (a technical term for two letters together, from the Greek ‘di’ meaning two and ‘graph’ meaning letters together). So is ‘jound’ pronounced ‘jonned’ (using the ‘ou’ sound in ‘cough’), or ‘joaned’ (using the ‘ou’ in ‘though’) or ‘junned’ (like the ‘ou’ in ‘enough’), or for that matter ‘junned’ (using the ‘ou’ in ‘could’)? There’s a simple answer to this, which is No. No, it isn’t. Those pronunciations are wrong. You can easily see that they’re wrong, just by sounding out the letters, which is what you do when you learn to pronounce words. If you sound out ‘ou’ and then follow it with an ‘n’ you never get any of those sounds. Not in real words, anyway. Imaginary words could be different, but they aren’t. This one isn’t, anyway.

What you get when you sound out the ‘oun’ in ‘jound’ is… but look, I’ve given it away! You get the ‘ou’ sound in ‘sound’. So it’s ‘jound’ to rhyme with ‘sound’, and ‘pound’, and ’round’ and ‘around’ and ‘around’. (Those last two are the same word. Yes, I know you know. Just making sure you know I know. Poetic or something. Anyway.) It’s ‘jound’ to rhyme with ‘found’ and ‘bound’ and ‘wound’. That’s the ‘wound’ that rhymes with ‘bound’, of course, not the ‘wound’ that doesn’t. In short, it’s ‘jound’ to rhyme with ‘wound’, but not – this is important – to rhyme with ‘wound’. Glad we’ve cleared that up.

I like ‘quemp’, though; it’s a nice word. I’d like to try to get that into a story. Not if I was a kid, obviously, because I’d probably lose marks, because it’s not a proper word.

As Flying Rodent said earlier,

If I wanted to draw up a plan to sabotage what remains of public faith in one generation, mandated prayer and psalms in school assemblies would be right at the top of my list.

And if I wanted to stamp out spontaneous, playful joy in language, a good way to do it would be to make six-year-olds learn words like ‘snemp’ and ‘thazz’ – complete with smiley monsters to encourage them – and then tell them never to use those words, only ever to use real words… words like “week” and “phone” and “dentist”.

Ciao, Ceausescu

It may be worth noting that La Repubblica appears to have just called Berlusconi a dictator:

An empty regime by Ezio Mauro

Unable to save Italy, they’re trying desperately to save themselves. This is all that’s left of the titanic force of Berlusconism, the “liberal revolution”, the government of “getting things done”, the Lega’s wind from the North. A terrified political class, afraid even to show their faces to their own supporters, unable to manage the crisis and now unable to come up with the solutions in government which the country needs.

The only solution offered is a cut-price agreement, inadequate at best and probably useless, which they hope will distract Europe’s attention for long enough to offer some breathing space for the shared desperation of Bossi and Berlusconi, shut away in government offices that have turned into their last bunker.

Both the effective leaders of Europe (Sarkozy/Merkel) and the formal leadership (Van Rompuy and Barroso) told Berlusconi that he had three days to pass the necessary measures to get Italy out of the Greek circle of Hell. The Prime Minister agreed. Then, back in Italy, he had to deal with the brick wall of the Lega Nord; with open crisis in his own party and in Bossi’s; with the ungovernability of his parliamentary majority; and with the self-evident exhaustion of his own leadership and its total loss of authority.

He should resign, allowing the country to try and save itself while there is still time. But he is no statesman; he sees his own personal fate as more pressing than the fate of Italy. He is locked into a political death-agony like something from the last days of the Christiam Democrat empire*, which may end up producing a lowest-common-denominator agreement, but can no longer produce either a political programme or a government. Europe and the markets will pass judgment on this utter lack of responsibility. We should also take note: governments regularly fall when their political time is up, but regimes can never find a way to end**.

* un’agonia democristiana, da tardo impero
**mentre i governi cadono regolarmente quando una fase politica si esaurisce, solo i regimi non sanno finire

The key word is ‘regime’: this is strong stuff in the Italian context, as it specifically refers to non-democratic regimes – whether Communist or, er, what was the other one…

I’ve got a piece in the next issue of the Bulletin of Italian Politics about ‘the Italian transition’: the idea that the period since 1993 has been a period of transition from the Christian Democrat-dominated First Republic to some new and more politically ‘normal’ settlement, featuring (among other things) Left and Right parties which can change places in government without bringing the entire system into crisis. Against this idea, many people argue that 18 years (and counting) is a bit on the long side for a period of transition; maybe this is the Second Republic and we (or rather the Italians) are stuck with it. I think the extraordinary fragility and turbulence of the current Berlusconi government, which itself derives from the steady erosion of his original centre-Right coalition, tells against this; we’re clearly not there yet, as there’s no ‘there’ here. In the paper I suggest that, rather than compressing the period of transition, we should extend it: the real ‘transition’ is the transition from Fascism to democracy, which stalled in 1948 with the imposition of Christian Democratic hegemony, stuttered into life again around 1993 and then ground to a halt again under Signor B.

Fascism has never quite been forgotten in Italy; the Republic was built on massacres by Fascists and massacres of Fascists. This is not to say that Italian politics is riven with anti-Fascist and anti-Communist passions; on the contrary, the strongest and most widely-shared passion is the passion for centrism, the dream of being a normal European country without any ‘opposed extremisms’. But this means that the one essential requirement for an Italian leader is the ability to put the Fascist past decisively behind him or her, to lead a governo and not a regime. La Repubblica is a centre-Left paper, generally more ‘centre’ than ‘Left’; its writers share that passion for normality, and the underlying passion for avoiding civil war. As a result they generally give the government – any government – the benefit of the doubt; a typical Repubblica editorial will urge the government to be more responsible and moderate, even when it’s clear that they’re committed to being anything but.

No longer: the paper’s served notice on Berlusconi that he is the problem. He must go, and soon.

They really are a treat

On a not particularly amusing day, I was amused by the news that the LGBT section of the EDL had planned a leafleting session on Canal Street in Manchester, but had bottled ithad a change of plan.

What do we know about Canal Street? Three things. Firstly, it is mad busy these days; the top end of the street, especially, is basically paved with little round tables, and if you pass through after work on a weekday you’ll find a good half of them occupied. (I should say before I go much further that Canal St makes a particularly good short cut from the station to a bus stop that I use; I’ve passed through quite a few times over the years.) Some of the venues are bar/clubs, some are restaurant/bars; some are ‘mixed’ (i.e. straight-friendly), some are gay but tolerant of the hen-night trade, several are gay with a capital G. It doesn’t make much difference: walk down Canal Street at 5.00 on a Thursday and they’ll all be buzzing. What a sunny Saturday afternoon is like I don’t know, but I can guess. If we assume that the Canal St clientele has a similar political makeup to the population as a whole, that would mean that 60-70% of those people were positively hostile to the EDL. Tough crowd.

Secondly, it’s been the place to go for a gay venue from way back. Back in the 80s – before any of the joints I’ve just referred to existed – there used to be more of a (heterosexual) ‘red light’ vibe to Canal St; once when I was heading for my bus a young & cheerful woman actually fell into step with me and walked along next to me describing her services. (Wonder where she is now. Hope she’s OK.) Even then, pubs like the Rembrandt and the New Union were spoken of in hushed tones, as if to say no really some of the people who go in those places actually are gay, some of them even look gay… Then came Manto, a ‘mixed’ bar at the bottom of Canal St where I used to go quite a lot on Saturday afternoons in the mid-90s; at the time I don’t think there was anywhere else in Manchester where you could drink beer while sitting on hard chairs at little round tables on a terracotta pavement, and the novelty was quite appealing for a while. There also weren’t many places where nobody would care whether you were gay or straight. Compulsory heterosexuality has never really cramped my style, but I still quite liked the atmosphere created by a bit of discreet outness. Manto was the first of many, and not the most assertive by any means. (It’s still there now, under different management, although it’s looking a bit sad; it’s been rather left behind by the development of the area.) The point is, Canal Street was gay-friendly at a time when being gay-friendly was deeply unfashionable, culturally and politically – and the nationalist right were the most hostile of all.

Thirdly, the hostility was reciprocated. Digressing a bit, here’s something I wrote in response to Michael Walzer a few years ago:

We live in a complex, enduringly structured and meaningful social world, Bhaskar argues; wherever we go and whatever we do, there will always be a lot of other people out there, whose actions and words will influence us. Consequently, we can never hope to achieve absolute liberation, a leap “into a realm free of determination”; what we can hope to do is move “from unneeded, unwanted and oppressive to needed, wanted and empowering sources of determination”.

the question is whether there are groups whose ‘determinations’ I regard as malign; whose freedom to infringe on my freedom of action I would therefore like to see restricted; and to whom I don’t have any reasonable means of communicating this preference, short of the use or threat of force. I’m not, by any stretch of the imagination, a street-fighting man, but I can think of several candidates without pausing for breath. A bridge in Manchester which I used to pass regularly bore the graffiti “KILL NAZI SCUM”. As I say, I’m not a violent type, and death to me is quite a big deal, but I found it very hard to see that message as anything other than a public service. The message I would like to get across doesn’t involve death – it’s more along the lines of “SEVERELY DEMORALISE NAZI SCUM” or “NAZI SCUM ARE UNWELCOME VISITORS TO THIS AREA” – but I can’t help feeling that these messages were conveyed more effectively by the graffiti as it stood.

The bridge was over the canal, beside Canal St. Happy leafleting, lads.

I’m still here

It’s been a busy few weeks. When I got abstracts accepted at the York Deviancy Conference and the British Society of Criminology conference, I wasn’t really thinking about how close they would be together; I wasn’t really thinking about where the papers would come from, either, although I knew that I had a couple half-written and a bunch of relevant material downloaded. Many days of intensive reading and bibliography-snowballing ensued; I called a halt to this when I realised that every paper I read was bringing up three or four interesting references, so that I was going backwards all the time. (Even now, with both papers written & delivered, there are 137 papers in my “ASB/To read” folder, but I’m happy to say that there are even more in the main (read) ASB folder.) The writing was gratifyingly easy, as it often is when I’ve got something to say and an occasion to say it; it’s just a shame how rarely both conditions apply.

Anyway, I went to York (on Thursday the 30th of June and Friday the 1st of July), & then went to Newcastle for the BSC (on Monday the 4th); I’ve since had to give another two presentations in another two Northern towns, although I won’t go into those. Busy, busy – not to mention tired, tired.

At York I gave

Broken windows, broken promises: from the CSO to the ASBO.

This paper looks into the origins of the Anti-Social Behaviour Order, New Labour’s talismanic instrument of social control over disorderly individuals. The Community Safety Order, proposed by Labour in opposition, was designed to address concerns expressed in working-class communities about the difficulty of either deterring or prosecuting certain forms of criminal activity. Instead of the CSO, Labour in power introduced the ASBO: an all-purpose instrument for the control of non-criminal behaviour, whose widespread use – encouraged by central government – led predictably to the criminalisation of large numbers of vulnerable and marginalised people. A measure which could have been used to empower disrupted communities was, in practice, an instrument for entrenching exclusion and disempowerment. Drawing on parliamentary and public statements by some of the politicians responsible, this paper will identify the key factors in this evolution, including the influence over the Home Office of American ‘right realism’ and the influence over Tony Blair of Thomas Hobbes.

This went over OK, although it was perhaps a bit socio-legal for the venue. Another slight problem was that the conclusions weren’t as dramatic as I’d hoped they would be. My hunch when I started researching this properly was that the initial impetus for the CSO was broadly progressive and left-realist-ish – the proverbial ‘neighbours from hell’ are a real problem, and it doesn’t impinge mostly on rich people. I have to say that research didn’t really bear this out, although I may just need to dig down a bit further. Also, I never got to the bit about Hobbes, although I did make some non-trivial connections with the “Broken Windows” agenda (and, more to the point, the original “BW” article).

At Newcastle, three days later, I gave

Did you observe all the warnings? The ASB Day Count and the production of the anti-social

This paper looks at the relationship between anti-social behaviour, social control and criminal justice, by way of the apparently technical question of how a cost can be put on incidents of anti-social behaviour. It takes as its starting-point the 2003 Anti-Social Behaviour Day Count, an exercise carried out in order to both enumerate and place a monetary value on anti-social behaviour. The continuities and discontinuities between the Day Count and its inspiration, Stanko’s 2000 ‘domestic violence audit’, are traced. Together with an analysis of the methodological flaws of the Day Count, this makes it possible to make some suggestions as to the type of knowledge which the Day Count was set up to produce. This discussion is then related to more general considerations regarding the difficulty of enumerating or evaluating unwanted social interactions experienced in the form of a continuous ‘climate’ or as a series of individually trivial ‘incidents’, and the parallel difficulty of controlling this type of trouble through the criminal justice system. The paper concludes by arguing that the anti social behaviour powers introduced under New Labour tend to resolve troublesome situations into a series of infringements which can be punished through social exclusion, to the detriment of the communities affected and of the criminal justice system itself; a much more far-reaching review of these powers is called for than the Coalition has so far announced.

This went pretty well; the main problem was getting it into a 15-minute slot. There’s some quite interesting stuff in there about the costings used in the ASB Day Count, and some stuff about Betsy Stanko’s DV audit, and… and much, much more. (The ‘climate’/’incidents’ stuff is still a bit undeveloped.) I ended up wrapping it up with more “Broken Windows” and a killer line (not my own) about “internal outsiders”. A very senior criminologist in the front row was seen to burst out laughing at this juncture, doubtless from the sheer delight of intellectual discovery. (Or it may just have been that the VSC in question has used that line himself.)

Anyway, there’s work to do on both of these before they’re ready to publish, but published they will be.

On a related topic, my publishers supplied me with flyers offering my book at a special conference rate – a 50% discount, or £30, which for a well-produced academic hardback isn’t totally absurd. I know that just leaving the flyers lying around doesn’t guarantee that everyone who might want one manages to get one; fortunately I’ve got a few left over. So if you missed out on a flyer and would like one now, get in touch.

Do you really want to be

Quoth John B, in comments on something else entirely at B&T:

Anyone who a) has career aspirations when they’re 17 and b) they’re not vet, doctor, scientist, writer or pop star, is a disturbing weirdo.

adding

+ ACTOR & sportsperson, on reflection, but that genuinely is about it

I’m not sure, for two reasons. One is that being 17 now really isn’t what it was when me and thee were lads (unless thou art significantly younger than me). Snagging another B&T comment:

Life may have changed I suspect – or at least the balance of ‘acceptable to express hopes for the future’ may have altered amongst 17 yr olds. All this endless droning on about (i) the skills based knowledge economy and wot not; and (ii) the need to up our national game vis a vis the Asiatic surge to 21st Century dominance may have had its effect.

I’m certainly teaching students who have a much better idea of where they’re going than I did at their age. Come to that, my son has a much better idea of where he’s going than I did at his age, and he’s not even in Sixth Form.

More importantly, I’ve got a nasty feeling the disturbing weirdoes always did have the right idea. When I was 16 my career aspirations went something like this (in order of decreasing desirability and increasing realism – i.e. mentally insert “and if that doesn’t work out…” after each one).

  1. Poet, famous for writing poems that everyone thinks are brilliant, paid to write more poetry. Something like Dylan Thomas, only not drunk all the time. Not sure if anyone does that these days, but if they don’t I will.
  2. Rock star, kind of post-Bowie, bit intellectual, bit arty, costumes and dancing and so on. Something like Peter Gabriel. I could definitely do that, I’ve got the voice and I can learn the songs and everything.
  3. University lecturer. That would be OK, I’d be good at that. English or poetry or something. I could definitely do that.
  4. Journalist maybe? Can you get a job in journalism? What would you actually do?

By the time I was 21 and finishing my degree I’d crossed off 1. and 2. Unfortunately I’d also crossed off 3. – I’d got a look at the way graduate students studying English literature seemed to live, and decided it was simpliciter sanguinarius atrox (Joyce): privileged, unreal, pointless. Like the Leyton Buzzards, I didn’t want to end up posh and shirty – I wanted to work and get my hands dirty, or at least work at a proper job with an ordinary employer and a salary and hours of work and everything. Looking back, I’m not at all sure what was behind this impulse, although I think the Buzzards could have given me a clue if I’d listened more closely[1]. In particular, I’m not sure why it didn’t occur to me that lecturers were employees too – and that graduate students, who weren’t even that, actually had things pretty hard. Really, I had it backwards – it’s not a life of privilege undercut by arid scholasticism, it’s a life of penury compensated by doing work you love. Perhaps the real problem was that I was in the process of falling out of love with Eng Lit, and it didn’t occur to me then to look further afield academically (and see [1]).

Anyway, I ended up as a journalist (and in answer to my teenage self, what you do is anything and everything that they ask you to do). After only nine years of writing for a living I managed to work my way into academia, and little more than five years after that I had a proper job. (Criminology, it turns out, is where it’s really at for me. Criminology and sociology. Sociology, criminology and the law. Criminology and socio-legal studies, and that’s my final offer.) Oh, and I’d worked in IT for eleven years before I managed to get into journalism, and I was on the dole for a good six months before I got my first programming job.

In short, I went into university with unrealistic dreams and came out with a goal that was realistic – there were lots of jobs in computing – but almost entirely wrong for me. (It wasn’t all bad. Coding can be fun, database admin is a good job in many ways and data analysis is brilliant.) It took me a good few years to get the boat turned round, and the key move was one I still look back on with mingled pride and horror, as it involved resigning from a perfectly good job with only a couple of months’ work lined up. (Twelve years on, I’m still not earning as much as I was paid at that job, even in cash terms.) It’s worked out, though, pretty much; arguably I should have stuck to one of my dreams all along (#3 would have been a good choice).

I don’t know, though. Settling for a job I didn’t enjoy, on the vague pseudo-radical grounds that most people had jobs they didn’t enjoy (and see [1]), wasn’t a good idea. The problem is that #3 and #4 were dreams, just as much as #1 and #2 – they were careers that were just going to happen to me somehow. I remember thinking that a medical student friend of mine was a bit strange because his dreams seemed to be so specific – from about 20 he knew what branch of medicine he was going to go into, how high he was going to rise (consultant), how much he’d be earning and what car he was going to drive. I realise now that they weren’t dreams, they were plans – and they were going to get him into his ideal career in a lot less than 20 years. (And yes, he is a consultant, and if he doesn’t drive that car it’s because he’s traded up.)

Still, who wants a life that’s been planned out? Me, I’d much rather be happy than right any day.

[1]

Don’t want to end up posh and shirty,
I want to work and get my hands dirty.
Middle-class boy brought up like me
Got to do something to earn credibility.
Don’t want my friends all looking at me
As a hoity-toity, airy-fairy,
Arty-farty little twerp!

When your war is won

Quick announcement: I’m giving a paper at Taking Control, at SOAS this Saturday. It’s a conference on contemporary revolution, with some interesting speakers. It’s also free to register. And – if any more incentive were needed – I’ll be there with a stash of flyers for my book, which you’ll be able to order at the special conference rate (50% off). Roll up, roll up, and so forth. (And no, I do not recommend that you steal this book.)

Here’s the abstract. (Thanks for technical data to the B&T crowd.)

Terrible beauty seeks geometric potency: arms and the law in the anni di piombo

This paper looks at the relationship between broad movements and small groups using violent tactics. The starting point is the Italian experience of the late-1970s anni di piombo (‘years of lead’), when a sustained high level of protest and direct action, associated with the Autonomia Operaia movement, was accompanied by the growth of a distinct milieu of ‘armed struggle’ groups (the best-known being the Red Brigades).

From the point of view of a fluid and horizontally-organised movement, groups dedicated to clandestine violence are problematic in multiple ways: they are typically accused of lacking accountability to the movement, and substituting their own strategic and tactical goals for the movement’s, and of pursuing violence and militarisation for its own sake. Whether these problems are inherent in the relationship between any armed group and any mass movement is open to question. Some have argued that this type of disjuncture can and should be overcome, on the grounds that any revolutionary movement, facing the violence of the state, would need to develop or acquire the capacity to carry out violence of its own. Thus Autonomist theorist Franco Piperno called in 1979 for the ‘terrible beauty’ of large- scale spontaneous direct action to be united with the ‘geometric potency’ of well-directed firepower, exemplified by the Red Brigades’ kidnapping of Aldo Moro (and specifically the shooting of Moro’s five bodyguards).

Using evidence from the North of Ireland as well as from Italy, this paper argues that there is an inherent problem in the relationship between armed minorities and mass movements, but locates the problem not in the sphere of accountability but that of law. The rule of law is seen as prior to state power rather than flowing from it; any sustainable alternative to the state will respect its own law rather than simply imposing its own power. Rather than building the capacity to deliver violence, a radical movement should focus on developing an alternative legality.

Update 15/3 Courtesy of Backdoor Broadcasting, here‘s the audio of my presentation – and here‘s the main conference page. Most of the slides were text-only, but you’ll need the following graphic at around 15:00.

After listening to mine and Ben Whitham‘s papers, someone suggested that what my paper lacked was an illustration of the relative ranges of a P.38 and a fire extinguisher thrown off a roof. Happy to oblige! Here’s M-16 vs P.38 again:

And if we zoom right in, we can see P.38 vs fire extinguisher:

Kids, just say no.

Dreaming your eyes away

A recent exchange from CT.

John Quiggin:

The disastrous bloodbaths generated by revolutionary alternatives to democracy have by now provided sufficient warning that no such alternative can attract any genuine support.[3]
[...]
fn3. The turn to terrorist methods by groups like the Red Brigades has served to discredit revolutionary approaches even more, and thereby further stabilise representative democracy.

Me:

The footnote about the Red Brigades gives such a superficial and distorted image of a huge, important and genuinely challenging group of social movements that I’m struggling to formulate any reply to it. (Can I suggest you read the book?) You can, of course, argue that you’re not talking about the reality of what the Red Brigades (plus the other armed groups, the broader armed movement and the still broader movement which refused to disown the above) were but the effects of how the Red Brigades (etc etc) were represented, and that what was a superficial and distorted image at the time has in effect become the historical record; I’d have no answer to that, except to thank God that there’s more than one historical record.

Quiggin:

The standard version of history is always selective and often distorted. But the Red Brigades did the things for which they are now remembered, and the effects are as I said, even if they also did lots of other things that are now forgotten.

Me: Continue reading

The barren weeks, the amnesiac years

Apparently it will be two years before we find out what the Labour Party stands for in 2011 (or rather 2013). In the mean time, presumably, the Shadow Cabinet can just make it up as they go along – I mean, now that Blairism doesn’t work any more, what else could they do? It’s not as if they could learn anything from the history of the Labour Party before Blair. Or perhaps they’re just working on the basis of waiting for the government to announce something so that they can say “and we’re against that!”.

That’s certainly the kindest explanation for this appalling story.

Following a ruling by the European Court of Human Rights, ministers propose to lift the ban on votes for prisoners for those serving jail sentences of up to four years. Although David Cameron stressed he was doing so reluctantly, the Liberal Democrats have long argued that prisoners should not be denied the right to vote. Labour delayed a decision on implementing the Court’s ruling before last May’s election but is now ready to form an unlikely alliance with Tory MPs in an attempt to force a U-turn. More than 40 Tories are said to oppose the Government’s plan – potentially enough to defeat it with the backing of the Labour Opposition. Labour wants the right to vote limited to inmates serving up to one year in jail. That would restrict the number to 8,096 of the 83,000 people in Britain’s jails

As it happens, the ECHR isn’t demanding that all prisoners in British jails be given the vote; the court’s ruling allows for national governments to take a view on withdrawing the franchise from particular categories of prisoner. What it has demanded – with the force of law, or at least the force of severe diplomatic embarrassment – is that the blanket ban we’ve had since 1840 be replaced by some kind of detailed policy with some kind of justification. (I doubt that the ECHR would find Labour’s mean-spirited amendment satisfactory – it seems designed to target the category of “won’t be in very long, probably didn’t do anything too bad, and best of all there aren’t very many of them”. But committing the government to yet another position the ECHR won’t accept, thus booting the question into the long grass for another year or so, may well be the object of the exercise.)

Either way – whether this is a wrecking amendment or just a vindictive attempt to weaken the legislation – Labour seem determined to attack the Tories from the Right:

Sadiq Khan, the shadow Justice Secretary, expressed concern that more than 28,000 inmates would be allowed the vote under the Coalition’s proposals. He said: “This is a slap in the face for victims of crime. We have already seen the Conservative-led government break their promise on knife crime. Now they are also giving thousands of offenders the vote.”

The Tory manifesto promised to bring in mandatory custodial sentences for anyone found carrying a knife (yes, carrying). It’s an insanely draconian policy, which they can never seriously have intended to implement. As for the notion that victims will in some way be adversely affected by ‘their’ offender having the vote – how? why? If this is what victims of crime want, then victims of crime are wrong. Actually I doubt that victims of crime want any such thing; left to his own devices, I doubt that Sadiq Khan would come up with this stuff either. What we’re seeing here is (in Andrew Ashworth’s phrase) “victims in the service of severity” – and, what’s worse, severity adopted cynically, in the service of winning votes (from the kind of people who like the idea of prisoners suffering).

Tory MPs also reacted angrily to the disclosure and signalled their willingness to work with Labour on the issue. Philip Davies, Tory MP for Shipley, said: “I have yet to find anyone on our benches who agrees with it. It is totally unacceptable to allow prisoners the vote. The whole point of going to prison is that you lose your liberty; one of your liberties is the freedom to vote.”

“Disclosure”, by jingo. That would be the shock news that the European Court of Human Rights found against Britain’s blanket denial of the vote to prisoners in 2005, since which time precisely nothing has been done to bring Britain’s laws in line with its international obligations. If anything, the news is even older than that: the ECHR’s ruling is entirely in line with the common-law position, as expressed by Lord Wilberforce in 1982. Ruling on a case in which a prison governor claimed to have the right to read prisoners’ mail – essentially on the grounds that it was his house and his rules – Wilberforce found against the governor and stated:

under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication

“Expressly or by necessary implication”. Contra the repulsive Davies, this means that a prisoner no more forfeits his right to vote than he forfeits, say, his right to wear clothing in public or his right to speak without being spoken to – or, for that matter, his right to sanitation (yes, the fine old British tradition of slopping-out was found to constitute a breach of human rights law in 2004, and about time too). Certainly it is open to a judge when passing sentence to stipulate that conviction for a particular offence – or type of offence – should lead to forfeiture of the vote; it is even open to Parliament to legislate along those lines. But the blanket denial of the vote to prisoners is almost impossible to bring into concordance with Wilberforce’s statement.

And it’s straightforwardly impossible to reconcile with the ECHR’s 2005 judgment – which is where we came in. The last government’s effective refusal to legislate in line with the ECHR’s judgment, dragging its feet for all of five years, was shameful: it contrasts very unfavourably with the actions of the governments of Ireland and Cyprus, both of which introduced votes for prisoners in 2006. The coalition’s grudging acknowledgment of the reality of the situation is to be welcomed (grudgingly). For a Labour opposition (a Labour opposition, to misquote Neil Kinnock) to campaign against it, lining up with troglodytes like Davies, is really disgusting. It seems that Miliband and his circle are still doing politics the same old way: a nervy attention to the Sun and the Mail from day to day, combined with a kind of dogmatic ignorance of every liberal or socialist principle their party has ever stood for. Why, this is New Labour, nor are we out of it.

To be someone

“All of us knew Pooky would be famous one day,” Philip Hensher writes in the Independent. This came as a surprise to me, although Pooky was certainly memorable when I knew him at school in Wales. He was small, Welsh and pugnacious, and hit puberty a full year before any of the other boys. He lent my friend Jem Brian Aldiss’s A Hand-Reared Boy, which as far as we were concerned was the dirtiest thing imaginable; Jem was quoting it for weeks.

I only ever heard Pooky called by his real name once, in a Welsh lesson. Our Welsh teacher ran the school branch of Urdd Gobaith Cymru (which we were all encouraged to join) and had no patience for English incomers who had trouble with the language; luckily for me I only qualified on one count. But one English girl in our class had a complete tin ear for the language, and in particular for the consonant ‘rh’, which is a kind of aspirated R (held, not rolled). (And it is tricky; my father came from Rhosllanerchrugog, and I still have to take a run-up at that ‘Rh’.) Unfortunately the kids in our Welsh exercises always seemed to be going up and down the hill (rhiw), so it was hard to avoid. One dreadful lesson, our Welsh teacher could stand this girl’s mangling of her beloved language – and the word rhiw especially – no longer. “It’s not hard! It’s easy! Like this – ‘rhiw‘! It’s just like Hugh with an R in front! You can say ‘Hugh’, can’t you? Come on, stand at the front. Now, look at Hugh and say his name three times, and then say it again with an R in front – Hugh, Hugh, Hugh, ‘rhiw‘.” We had worked out who this ‘Hugh’ person was about halfway through the tirade, and we watched in horror – tempered (as always) by relief that it wasn’t us – as this nice English girl stood at the front of the class and gazed obediently at Pooky the goatboy, saying “Hugh, Hugh, Hugh, roo“. The teacher made her do it three times before she would admit defeat.

You know what? This isn’t the same guy. Hensher was writing about the actor Pooky Quesnel, who knocked him out in Cabaret when he was at Oxford. Me, I confidently expected to hear more after Cambridge of Annabel Arden and Simon McBurney, whose drama workshops I briefly went to (a bit boisterous, and I wasn’t bendy enough). Also, of Roger Hyams; of Jonathan Tafler; of Oscar Moore (who wasn’t actually in theatre, as far as I know, but he was obviously going to be a star in some way or other).

Jonathan Tafler was Chair of Mummers – a university-wide drama society originally founded by Alistair Cooke – when I pitched a play to them in my first year; it was a kind of anti-authoritarian panorama of human history, influenced by Paines Plough, Stuart Christie, Art Bears, R.D. Laing and Scritti Politti’s first single, beginning in the Garden of Eden and ending in the psychiatric ward where a rebel against the authority of state, capital and family had been confined, and in whose head the whole thing was revealed to be happening. “Given time she can think it through…” Jonathan, anyway, told me he thought there was something there, which was amazing… and invited me to meet the rest of the group and pitch it to them in person, which was agony. I was very shy (and rather young); no way could I pitch an idea to a group – I wouldn’t have bothered writing an entire first draft of the play if I could do that – and absolutely no way could I take other people’s suggestions on board. In short, it wasn’t to be, and I gave up any idea of getting involved in the stage soon after that. But I did always vaguely think I’d hear Jonathan Tafler’s name again. It turns out that he’s working; he’s done a ton of radio; and he can tell a Jewish joke. Not so shabby.

As for Roger Hyams, I remember once somebody told a friend of mine that Pip Torrens had told her that Roger already had his own agent, and while we thought this was a bit presumptuous we weren’t in the least surprised – he was so clearly going places. (I think it was Pip Torrens; if it wasn’t him it was probably Pip Broughton. But anyway.) The only time I saw Roger act he was co-starring in Athol Fugard’s Statements After an Arrest Under the Immorality Act – a play whose cast consists of a man and a woman who have been caught in the act of inter-racial sex by the South African police, and who are both naked throughout. (Not quite throughout – he puts on a string vest halfway through.) It’s a strange but rather wonderful play. It’s very static and declamatory, as the name implies; it would work well on radio, if the players’ nakedness weren’t such a powerful element in it. Roger was terrific; if anything he slightly outshone the female lead, who I’m reasonably sure was Tilda Swinton. But where is he now? Here (at least, I think this is him): writing and directing, among other things. The acting didn’t work out, but he’s done all right.

Looking these people up, I chafed slightly at Philip Hensher’s conclusion:

Some people who you meet young have talent and glory just shining out of them. They achieve it, or, alternatively, they settle for labouring respectably while people no one at the time ever heard of, like David Cameron, take over the world. I wonder how many other brilliant Sally Bowleses there are in the world, making a living.

After I left university with my English degree – complete with a commendation for my poetry, which had been judged in part by Raymond Williams – I was on the dole for a year. For the next twelve and a half years I worked in computing – for a pre-privatisation MANWEB, for Manchester City Council and for Swinton Insurance. Now that‘s “making a living”.

There is something very Oxbridge going on between the lines here; I’m reminded of the couple in Peter’s Friends who everyone else more or less openly looks down on, because after Cambridge they ended up in advertising (dear oh dear). It’s as if a career in the arts or literature – at any rate, a career in the vicinity of the star you want to follow – is a given, and success and failure is measured by the calibre of desirable career you end up with. The possibility of ending up in computing or banking or accountancy or management – let alone ending up in one of those jobs where people tell you what to do – can be completely discounted: it’s stardom or drudgery, where drudgery is defined as second leads in Leatherhead and two-line parts on the radio. From outside Oxford and Cambridge – or from outside the groups that feel at home there – it looks different. I suspect that plenty of comets blaze across the firmament of student drama at Durham and Exeter and Cardiff; I also suspect that a much smaller percentage of those stars achieve real-world stardom, and a lot of them drop right through the cracks to end up in, well, computing or banking or accountancy or management. There’s a passage in 1982 Janine where Jock remembers one of the stars of a student production he was involved in many years earlier, and says that she’s now one of the first people casting directors ring when they want to cast a middle-aged female character to appear for a week or two in Casualty; he then points out that, as acting careers go, this is doing pretty bloody well. Viewed from the perspective of most actors, Pooky Quesnel and Jonathan Tafler and Roger Hyams aren’t also-rans – they’re success stories.

PS And if you really want a mute inglorious Garrick, I’ll see your Pooky Quesnel and raise you Dave Bates. Fantastic actor – one of the best I’ve ever seen. He was at my school (in Croydon, not the one in Wales). He was in every school play for a few years: an automatic choice for the lead role until he got bored of doing that, and after that he could have his pick of the roles. He could do anything, from tortured-soul young male lead to Pythonesque gurning (not in the same play). Then he got bored of acting altogether and withdrew his application to RADA, to the horror of our English teacher. No idea what became of him; he certainly didn’t go to Cambridge. I expect he ended up getting a job or something.

A treasure hunt, but the treasure’s gone

Recent discussion on CT has made me aware of some startling disparities:

UK(2001) Oxford admissions (2009)
White 71.1% 84.9%
Mixed 3.2% 4.6%
Asian 12.1% 4.6%
Black 10.9% 1.0%
Chinese 1.1% 1.8%
Other 1.6% 0.3%


A massive over-representation of the White majority, together with a really glaring under-representation of British Asian and especially Black students, who are being rejected literally nine times out of ten, whereas…

Hang on, wrong figures. That first column is the ethnic breakdown of the population of London (which is where David Lammy MP was born and has lived most of his life, not to mention the obvious point that it’s where he works). Here’s the UK:

UK(2001) Oxford admissions (2009)
White 92.1% 84.9%
Mixed 1.2% 4.6%
Asian 4.0% 4.6%
Black 2.0% 1.0%
Chinese 0.4% 1.8%
Other 0.4% 0.3%

White majority: slightly under-represented. Chinese and mixed-race groups: over-represented. British Asians: very slightly over-represented. Black British…

Well, OK, Lammy has got something here, but it’s not quite as big an issue as it might look if you’re coming at it from an ethnically-mixed background (also known as a ‘city’). The UK population in 2001 was still 92% White – there are whole areas of the country where you just won’t see a brown face, or if you do you’ll go home and tell somebody. I won’t be surprised if the figure that comes out of the 2011 Census is a bit lower, but I’ll be amazed if it’s below 90%. So the fact that the Oxford student intake is 85% White is not, in itself, a problem, except insofar as it suggests that recruitment from Scotland, Wales and the North-East might need a bit of work.

All the same, it’s true that Black students are seriously under-represented; a factor of 2 isn’t as bad as a factor of 10, but it’s not good. But this seems to be a point specifically about Black students and not about non-Whites more generally. If racism on the part of Oxford admissions tutors is at the root of what’s going on here, either it’s specifically anti-Black racism or there are other factors outweighing racist attitudes towards other groups.

Or is the problem at the application stage? Here’s how applications look in comparison to UK population figures (bearing in mind that these are 2001 figures and hence almost certainly out of date). In 2009, there were approximately 185 Oxford applications for every 1,000,000 UK citizens. If the same figure is calculated for each ethnic group, you get the following:

Applications per million Over/under
White 155 83.5%
Mixed 703 379.4%
Asian 353 190.7%
Black 192 103.8%
Chinese 918 495.2%
Other 364 196.6%

Relative to the size of their ethnic group within the population as a whole, White students are under-represented. Asians and the ‘Other’ group – which consists mainly of people who declined to state their ethnic group – are over-represented; Chinese and the ‘Mixed’ group are massively over-represented. Black students are right in the middle of the distribution, a fairly small population represented – relative to the total of applications – proportionately to its size.

Here are the admission figures again, this time side by side with the application figures:

Applications Admissions Success Over/under
White 76.9% 84.9% 27.6% 110.0%
Mixed 4.4% 4.6% 26.5% 105.6%
Asian 7.6% 4.6% 15.3% 61.0%
Black 2.0% 1.0% 12.2% 48.6%
Chinese 2.1% 1.8% 21.6% 86.1%
N/K 6.3% 2.8% 11.1% 44.2%

The “over/under” figure gives the relative success of each group as compared with the overall success rate of 25.1%. And it’s an interesting figure. Relative to applications, White students are quite substantially over-represented, while every other group is under-represented, with the exception of the ‘Mixed’ group (the cynical explanation that they’re seen as ‘white enough’ suggests itself).

Here, finally, is what it looks like if you put it all together. (These are the same numbers I’ve been crunching so far. The ‘Over/under’ figure for applications is the ratio between the number of applicants per million in each group and the number of applicants per million UK residents. The ‘Over/under’ figure for admissions is the ratio between the success rate of applicants in each group and the overall success rate of applicants.)

% of population % of applications Over/under % of admissions Over/under
White 92.1% 76.9% 0.835 84.9% 1.103
Mixed 1.2% 4.4% 3.794 4.6% 1.057
Asian 4.0% 7.6% 1.907 4.6% 0.610
Black 2.0% 2.0% 1.038 1.0% 0.488
Chinese 0.4% 2.1% 4.952 1.8% 0.862
Other 0.4% 0.8% 1.966 0.3% 0.428

Every line tells a slightly different story. The Mixed ethnic group comes off best, with a massive over-representation in applications which is entrenched at the admissions stage; Chinese students are also over-represented, with a larger over-representation among applicants only slightly scaled back at the admission stage. A smaller over-representation over Asian students is almost entirely reversed by the rejection of 85% of applicants. The White group is significantly under-represented among applicants, although the admissions process partially compensates for this with a slight over-representation, relative to applications. Alone among all the major ethnic groups, Black students apply to Oxford at roughly the same rate as the population as a whole, neither over-represented among applicants (like most others) nor under-represented (like White students). However, the Black group suffers enormously at the admission stage, with a rejection rate of nearly 88%; this compares with 74.9% for all applicants and 72.4% for White students.

So what is going on? A large part of what’s going on seems to be that White schoolchildren aren’t getting the top grades in the numbers we’d expect – although this is still being compensated during admissions. Where Black Oxford applicants are concerned, it seems undeniable that something is going wrong somewhere in the admission process. The numbers of Asian – and to a lesser extent Chinese – applicants are cut down fairly significantly in the admissions process, but this is compensated by a massive over-representation of those groups among applicants. Black students get hit both ways: they’re not over-represented (although I would find it hard to label this as a fault, particularly given the performance of my own ethnic group), and they’re turned away at an even higher rate than Asian applicants. Oxford’s own investigation concludes that subject choice must bear some (most? all?) of the blame:

BME students apply disproportionately for the most oversubscribed courses. Oxford’s three most oversubscribed large (over 70 places) courses (Economics & Management, Medicine and Mathematics) account for 43% of all BME applicants and 44% of all Black applicants – compared to just 17% of all white applicants.

Well, maybe, but I can’t help feeling that this explanation stops where it ought to start. It’s hard to believe that subject choice is the only reason why Black students’ faces so consistently fail to fit; more to the point, the ‘good’ and ‘bad’ subject choices themselves are not entirely weightless and without a history.  I passed this snippet on to my wife (we met at Cambridge). Apparently Black students aren’t being advised to choose the right subjects, I said, and that’s why not many of them get into Oxford. What, she said, they’re not applying to do Land Economy?

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