Counter-terrorism and counter-law

Earlier this year I was delighted to be asked to contribute a post to Verfassungsblog. The post is here; you can also read a draft below.

Counter-Terrorism, the Rule of Law and the ‘Counter-Law’ Critique

“Counter-law”, as theorised by Richard Ericson, involves “using law against law”: the use of legal resources “to erode or eliminate traditional principles, standards, and procedures of criminal law” and facilitate pre-emptive policing interventions in areas such as counter‑terrorism. This, Ericson argues, threatens the rule of law, defined as the principle that “[p]olice and citizens alike should know what is and is not legally authorized … to ensure a predictable environment in which to make rational choices about rule‑governed behavior”.

Should the image of “law against law” be discounted as a polemical gesture to add weight to a liberal critique – or can it be grounded in a defensible theoretical model of the Rule of Law?

Rule of Law: Minimal, Maximal or Neither?

Ericson’s definition of the Rule of Law (hereafter RoL) echoes Hayek’s formulation: “government in all its actions is bound by rules fixed and announced beforehand”. The content of those rules is entirely undefined: a state under the RoL may impose any combination of duties and freedoms on its citizens, or on different groups of its citizens. All that is required is that everything the state does is first enacted into law.

Spelt out, this minimal definition of the RoL does not seem particularly desirable. It is highly permissive, but at the same time highly restrictive—so much so as to make deviations and trade‑offs inevitable. The question would not be whether government conduct falls short of the RoL but how often, in what ways and with what costs and benefits.

Other definitions of the RoL go considerably further than Hayek’s. Bingham’s widely-cited definition of the RoL includes provision for the protection of fundamental human rights and state compliance with international law, as well as stipulating that laws should be intelligible, apply equally to all and bind the government as well as its citizens. This has been criticised as excessively wide-ranging; Raz criticises Bingham’s definition as “an assembly of diverse principles, with diverse rationales behind them”, arguing that “the law, to be just or legitimate, or fundamentally good, should conform to more than one moral principle or doctrine”.

Raz for his part offered two alternative extended definitions of the RoL. His 1979 definition combines a formal definition in terms of the properties of laws themselves (which should be clear, stable, publicised, prospective and general) with a set of principles of procedural justice. In 2019 Raz again cited the necessary formal properties of laws, then added a set of provisions relating to the reasonableness of government decisions. Ironically, both of Raz’s own definitions are vulnerable to a critique similar to his own. Each of the two definitions is, arguably, not a singular doctrine but a pair of principles, with the first group of stipulations defining good laws in formal terms and the second defining the proper administration of justice and good governance respectively.

The multi-dimensionality which Raz decries in Bingham’s definition of the RoL—and which, to a lesser extent, can also be identified in Raz’s own definitions—makes compliance to the RoL difficult to achieve: the more internal complexity the concept is understood as having, the more likely it is that government action will depart from one or other aspect of it. Once again, the RoL is defined in such a way as to make trade-offs inevitable, reducing the force of any critique which would make departure from the RoL an evil in itself.

In short, the RoL represents either a procedural restriction on government, or a set of principles whose partial or total realisation is conducive to greater government legitimacy. In both cases departures from the RoL are easy to justify on other grounds (e.g. for reasons of public safety), meaning that the RoL cannot be invoked as a stand-alone ground for critique.

A Third Alternative: The Formal Rule of Law

It may be possible to rescue the RoL as a ground for critique by using a purely formal definition, akin, though not identical, to the first half of Raz’s two pairs of principles. The definition proposed here draws (like Raz’s definitions) on Lon Fuller’s eight “principles of legality”. Fuller argues that laws should be general, be publicised and be prospective in effect; should not be unintelligible, mutually contradictory, impossible to obey or so changeable as to be impossible to identify; and should exhibit “congruence between the rules as announced and their actual administration”, to be secured primarily through excellence in legal drafting, interpretation and administration.

I have argued that Fuller’s eight principles can be summed up as the principles that laws should be universal, knowable and followable, and that the RoL also requires a fourth principle of justifiability. In fact, the eight principles reduce to two. Generality, publicity, intelligibility, stability over time and congruence of official action are factors of knowability: only if all these requirements are met is it reliably possible for any individual, in any situation, to ascertain what laws effectively apply to them. Knowability thus entails comprehensiveness: there can be in principle no social situation, and no group of people, not covered by any law.

Secondly, the requirements of prospectivity, non-contradiction, and possible obedience are factors of followability. Followability entails freedom of choice to follow a law (or not to do so): if the requirement of followability is to be met, an individual’s social existence may not be structured to the point where no margin of choice remains, nor may obedience to law generally be secured oppressively, through actual or threatened coercion.

Justifiability is not a separate principle but an implication of the first two. If following the law’s commands is a free choice (followability) based on knowledge and comprehension of the law (knowability), it must be possible to explain the applicability of a law to a given person in a given situation, and for the explanation to be rationally challenged. If law-compliant behaviour is not to be secured by force, it must also be the case that a rational challenge will, in some cases, succeed, and the law be amended accordingly.

Like Raz’s models, this formal model of the RoL does not encompass every standard to which the law in a just society would conform. However, it does not go as far as Raz’s argument that the RoL “has no bearing on the existence of spheres of activity free from governmental interference “, to the point that “[t]he law may … institute slavery without violating the rule of law”. These assertions run counter to the requirement of followability: a freely followable law must guarantee some “spheres of activity free from governmental interference”, while a law to enslave rational and previously free citizens is one that could only be secured by oppressive force.

The formal model does, however, omit most of Bingham’s desiderata, including the fundamental liberal requirement of equality before the law: while it must be possible for each individual in a society under the RoL to ascertain and choose to follow the laws applicable to them, there is no requirement that the same laws apply to all. The formal RoL is thus compatible with a high degree of social stratification—and, as such, with “very great iniquity”, at least if that word is used in the archaic sense of “want or violation of equity”. It grounds only a weak universalism: discriminatory treatment of different groups is compatible with the RoL thus defined, for as long as those groups accept their treatment as just.

However, the formal RoL is arguably better suited than either the minimal or maximal models to be used as grounds for critique. Whatever its other defects, any society operating under the RoL must have laws that can be known and can be followed (and can be justified in response to challenge); defects from any of these properties are identifiable as shortfalls from the RoL.

Counter-Law and Counter-Terrorism: Preventive Offences

Contemporary counter‑terrorist legislation has created numerous offences which violate the requirements of knowability and followability. Examples include the groups of offences classified as inchoate (offences of attempt or encouragement), preparatory (otherwise lawful conduct in preparation for the commission of an offence) and situational (offences defined in terms of a state of affairs).

Inchoate counter‑terrorism offences can involve long and speculative causal chains: it is an offence under the Terrorism Act 2006 to state that a terrorist act is worthy of emulation, if the person making the statement intends, or is reckless as to the possibility, that hearers should be encouraged to commit or instigate terrorist acts. This offence has since been joined, under the Counter-Terrorism and Border Security Act 2019, by the offence of expressing an opinion or belief indicating support for a proscribed organisation, recklessly as to the possibility of others being encouraged to share this support. To commit either of these offences does not require that anyone is in fact encouraged in these ways, let alone that any terrorist act takes place.

The key preparatory offence under counter-terrorism legislation is the catch-all offence of ‘preparation of terrorist acts’ under the Terrorism Act 2006, covering “any conduct in preparation for giving effect to [the] intention” to commit a terrorist act. Given that the goal of counter-terrorist legislation is preventive rather than reactive, the preparation offence makes it possible to criminalise actions which were harmless and otherwise lawful, on the grounds that the offender possessed an intention which these acts would—if they had not been interrupted—have realised in the commission of acts of terrorism.

Situational counter-terrorism offences, lastly, are offences where a guilty act is inferred from a state of affairs, elevating what might more usually constitute circumstantial evidence to an offence in its own right; an example is the offence of possessing information likely to be useful to a person committing or preparing an act of terrorism (Terrorism Act 2000). This offence has been expanded by the Counter-Terrorism and Border Security Act 2019 to include having viewed any such information over the Internet.

Given the crucial importance of the offender’s – unrealised – intention in making out the elements of offences, offences like these are neither knowable nor followable. A law prohibiting the commission of any act which might subsequently be presented as having been preparatory to what might have been a future act of political violence is not a law whose scope can reliably be known. Similarly, a law prohibiting any statement which could be presented as tending to encourage support for one of a designated list of groups (even if no such encouragement had taken place) is not a law that can freely be followed: it enjoins either silence or the affirmative act of a disclaimer.

Instead of the classical requirements of ‘guilty act’ and ‘guilty mind’, these offences share two unusual and complementary characteristics. The acts brought to trial are not themselves harmful and could potentially be proved against a wide range of people, many or most of whom would have carried them out without criminal intent. When charges such as these are brought, the prosecution attests not only to the factual element of these offences but to the correct interpretation of the facts. These are ‘ouster’ offences: the criminal court is ‘ousted’ from its role of determining guilt by the public prosecutor, being presented with offences defined in such a way that only one verdict is possible.

This degree of latitude is only available to the prosecution because—secondly—these are terrorist offences, subject to their own body of legislation. What this means, however, is that not merely intent or recklessness but a specific guilty mental state has been assumed: the defendant is suspected of intending to carry out, or intending to threaten to carry out—or welcoming the possibility of others carrying out or threatening to carry out—one of the broadly defined disruptive acts listed in the Terrorism Act s2, for the broadly-defined purposes listed in s1. The factual elements of the various offences look quite different if this assumption is not made: if the prosecutor is persuaded that the suspect is a harmless fantasist whose professions of innocence can be trusted, no terrorist intent can be inferred and no terrorist charges brought.

The Rule of Law: How to Use

Counter-terror legislation has created a catalogue of offences offering enormous scope for prosecutorial discretion, allowing for individuals to be convicted on the evidence of having committed innocuous acts. Moreover, in an extraordinary irony, suspicious acts and individuals qualify to be considered as ‘terrorist’ on the basis of an act of more or less speculative labelling, which is itself an exercise of prosecutorial discretion.

The Rule of Law, I have suggested, requires that the law be a reliable and non-oppressive guide to how citizens should act: as such, the laws governing every citizen must be rationally knowable and voluntarily followable (and, by extension, open to rational challenge and justification). These tendencies in counter-terrorist legislation clearly run counter to the RoL thus understood. Every move away from knowable and followable laws is a move away from the RoL—and towards a landscape in which police discretion decides not only who will be put on trial but who will subsequently be found guilty. Conversely, every move in this direction can be resisted by reference to the RoL, if this is understood as neither a technical desideratum nor a broad set of liberal ideals, but as the simple requirement that citizens should be able to know, understand and choose to follow the laws that apply to them.

 

 

 

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The radicalisation of Keir Starmer

A few thoughts on Labour’s abstention on the Overseas Operations Bill. (And a thought on initial caps, which is that I’m in favour – I’d read the Graun story twice looking for the title of the bill before I realised that the “overseas operations bill” they referred to was in fact the Overseas etc. I’m not a fan of this wrinkle in the Guardian style guide. Apart from anything else, there could in theory be any number of “overseas operations bill”s; there have certainly been any number of “terrorism bill”s, mostly not entitled Terrorism Bill. But anyway.)

1. Good principles make good tactics

I owe this point partly to noted ex-blogger Dan Davies, on the Twitters. Two things are true about the distinction between issues that fall under the heading of day-to-day political tactics and matters of firm political principle. One is that the gap between the two is obvious to all; it’s not a gap so much as a gulf – an unbridgeable, fathomless chasm. The other is that no two people agree on where it is. Everyone agrees that some things are up for grabs while others are beyond any possible debate – and most people agree most of the time on which side of the line most of those things are – but in any given discussion it’s possible that the person you’re talking to will think your unshakeable commitment ought to be treated as political small change, or vice versa. In practice, a lot of political argument is about making sure an issue is parked on the Principles shelf, out of reach of any possible argument, and stays there.

It seems pretty clear that Labour was whipped to abstain on the Overseas Operations Bill primarily so as to draw a line between Starmer’s “new management” and the Corbyn-era party, and incidentally between Starmer loyalists and the left-wing holdouts who broke the whip; certainly Starmer hasn’t been slow to use the split to this effect. (Given that this was a one-line whip – “Considered advisory, providing a guide to party policy on an issue” – the sacking of Nadia Whittome, for example, has to be seen as a deliberate choice.) In the light of the previous paragraph, though, the question isn’t whether shielding British soldiers from prosecution for war crimes is an issue of principle which should never be instrumentalised in this way. Clearly this can be argued either way, clearly it has been, and some guy with a blog isn’t going to settle the debate for the ages. The question is where you get to if you argue one side or the other, and which way you end up pointing.

To put it a bit less cryptically, you can make a coherent argument that war crimes are among the things the Labour Party quite definitely opposes, and voting against a bill which would make them harder to prosecute is therefore the right thing to do. You can also make a coherent argument that, for the Labour Party in 2020, expressing opposition to war crimes is less important than expressing opposition to Jeremy Corbyn – or if that’s too blunt, that it’s less important than telling former Labour voters that one of their reasons for not voting for the party no longer applies, precisely because the party under Corbyn would have voted against this bill.

Now, these are very different positions, and they express very different commitments – which is to say, they commit the party to different directions of travel. And, while we can take a guess at which one is more ‘principled’ and which more ‘opportunistic’, that doesn’t in itself tell us which one will work – in any sense of the word. There’s certainly no guarantee in politics that you’ll come out ahead by doing the principled thing, but there’s also no guarantee that you won’t. Raw tactical opportunism may pay off in the short term, but it’s liable to bring its own policy commitments with it – if only because people like to make sense of what they’re doing and fit it into a bigger framework – and you may end up committed to a course that you (or your supporters) can’t bring yourself to take. If you avoid that trap (“no, honest, I’m a pure opportunist!“), opportunism may land you with an incoherent bricolage of incompatible commitments. Some combination of these two outcomes accounts for what happened to Yvette Cooper’s career, and to a lesser extent Andy Burnham’s, after they did the smart, tactical thing and abstained on the Welfare Reform and Work Bill in 2015. (And we know what happened to the one candidate for leader who broke the whip and opposed.)

The decision to whip Labour MPs to abstain on the Overseas Operation Bill may have been wrong in principle (I think it was); the decision, as well as the disciplinary actions taken since, was certainly petty and vindictive; and it may have been a tactical mistake.

Also, it may have been doomed to failure.

2. Not weak enough

So far I’ve been talking about ‘tactical’ actions in general terms, but clearly not all tactical moves are alike. If there were a big vote coming up, in a hard-to-fix electorate like the party membership, it might make tactical sense to discredit the Left of the PLP (or engineer a situation where it discredits itself), and the leadership might judge that it was worth burning the odd principled commitment to achieve that.

But that’s not what’s going on here; the NEC election isn’t till November, apart from anything else. With the exception of losing Leftists from three very junior payroll positions – an equivocal gain for the leadership, as the loss frees those MPs to speak out – nothing obvious was either gained or lost through the leadership’s tactical move. This was a particular kind of tactic; one defined in terms of image and credibility.

Credibility can mean two things. To begin with, let’s take the more obvious meaning – let’s assume that being “credible”, for a political party, means being recognised as a legitimate political actor by other political actors. Making tactical moves, potentially at the expense of principled commitments, in the hope of restoring credibility (in this sense) has two closely-related problems. Both were amply visible in the Conservative Party’s response to the vote:

Hashtag Same Old Labour; no change, no credibility gained. But that’s the thing about credibility: like respect, it isn’t granted automatically, it has to be earned. And the thing about earning respect from the Conservative Party is, what kind of idiot are you? To put it another way, if your problem is the school bully calling you names, you’ve actually got a bigger problem than that, which is that he’s the school bully and you can’t stop him calling you whatever he likes.

So: the trouble with taking policy commitments off the Principle shelf, and treating them as expendable for tactical purposes, is that by doing so you are actually making a policy commitment, and one which may not sit well with other commitments – or voters – you want to retain. And the trouble with doing this for the sake of credibility (in this sense) is that your credibility is largely in the gift of your enemy.

Which brings me to those two closely-related problems. The first problem with trading principles for credibility is that there’s no limit to what you may be asked to do, how far you may be asked to go, what existing principles and commitments you may be asked to burn – and this is (a) true in the abstract, (b) doubly true of the Conservative Party, which has never been renowned for playing fair and (c) have you seen the Conservative Party lately? I was reminded of this forcibly by some of the responses to the abstention the other night, to the effect of well, obviously this is something that the Left would want to oppose, that’s just why it’s an obvious trap – this, of a bill which is counter to Britain’s obligations under the UN Convention Against Torture and has been criticised by the EHRC and Amnesty International.

If the Tories want to make minimal adherence to international human rights law the bar that Labour has to limbo under, they will; that doesn’t mean that it’s smart politics to oblige them. Particularly not given the second problem I mentioned, which is, of course,

that they have absolutely no obligation to grant us any credibility if and when we do pass their test, and every reason not to.

3. Down your street again quite soon

There is another way of looking at credibility, however. This has to do with cost: in the criminal underworld, or in situations where credibility can’t be externally verified more generally (the theory runs), a credible signal is one that carries a cost for the person sending it. If I spend money on a joint venture that I may not get back, or if I grass up an ally of mine so as to make your life easier, you’re more likely to believe that I genuinely want to work with you and that I’m not just looking to rip you off.

Now, Nadia Whittome’s a rising star and someone we’re going to hear a lot more from, but I doubt that finding a new PPS will cost Jon Ashworth all that much, let alone Keir Starmer. What might make the signal Keir Starmer has just sent costly, though, is – ironically – what initially appeared as the whole reason for sending it: the fact that it will at best strengthen the Left both numerically and politically (where the Left is defined as “everyone who liked the look of Starmer’s ten pledges but is not intending to give him the benefit of the doubt forever”), and at worst alienate the Left from the party altogether. Bluntly, this will cost Starmer support within the party, and could end up costing Labour members and votes. (It’s not the first time I’ve reminded myself that, as a member, I’ve got a reason to hang on until the NEC election in November – but it is the first time that I’ve asked myself how many more times I’m going to have to tell myself that.)

If we follow through the logic of the second section of this post, this just makes Starmer’s tactic look even more ridiculous: he’s deliberately risked throwing away a non-negligible chunk of votes and members, for the sake of gaining credibility by courting the approval of the Tory Party – an approach which has never worked and never will. But this second model of credibility creates a different possibility. Suppose that the potential loss of support – for Starmer personally and even for Labour – is the stake, the price Starmer is willing to pay to drive the message home; suppose that the message is not “look, we’re credible now (even the Tories say so)”, but a simple and straightforward “look, we’re not that any more”. This would also imply that the chosen terrain of international law and human rights (in the red corner, with the British Army in the blue) was just that, chosen; it wasn’t simply the test that the Tories happened to have set for Labour this week.

But if we’re “not that any more”, what is ‘that’? And what are we instead?

This?

4. The Sound of Ideologies Clashing; Also, The Sound of Ideologies Harmonising, Interlocking, Overlapping, Merging, Splitting And Just Plain Co-Existing

Here’s a thought: people have lots of different views about different things, which fit together in constellations of ideas and commitments; I’m talking about ideologies. Another thought: the natural habitat of ideologies is the social group; individuals see the world through ideologies, but we derive those ideologies from the groups of which we’re members, which (in most cases) existed before we joined them and will exist after we’ve moved on. Ideologies – existing in social groups rather than in people’s heads, remember – have their time; they develop, thrive and decline over time, and in particular settings. Two similar societies, separated by geography or history, may be characterised by similar ideologies, different ones or some of each. Also, it’s possible for one person to see the world – and to interpret the news, and to vote – according to multiple different ideologies, depending which seems the best fit to the situation and/or which is uppermost in their mind at a given time. Hence the sexist trade unionist; hence, for that matter, the picket-line-crossing Guardian-reading liberal.

Political parties generate support and mobilise supporters by appealing to ideological commitments, encouraging people to see the world through one set of ideological lenses rather than another – and in so doing they strengthen those ideologies, making them seem more natural and normal. While “Corbynism” was never an ideology in its own right, when he became Labour leader Jeremy Corbyn was strongly associated with a couple of ideologies which he’d upheld for thirty years as a backbencher: an ideology of human equality, of every person (anywhere in the world) mattering as much as any other; and an ideology of constructive empowerment, of mobilising people to make the world a better place. As Labour leader he found, probably to his surprise (certainly to mine), that appeals voiced in terms of these ideologies were actually quite popular, despite the mainstream media positioning them – and him – somewhere between Fidel Castro and Jim Jones. It didn’t hurt that, in 2017 at least, his outsider status let him appeal – consciously or not – to another ideology that’s flourished in Britain in the last decade: this combines short-term pessimism with an openness to big, dramatic changes, on the basis that, whatever we’ve got when the dust settles, it can’t be much worse than this.

What happened in 2019 and why it happened is outside the scope of this (already fairly long) post. Suffice to say that Labour has a different leader now, and early hopes of ideological continuity have already been dashed – hopes that were initially encouraged, to be fair, by promises of ideological continuity, made in broad terms but made publicly and repeatedly for all that. But we ken the noo; we know now that the ideologies Starmer is articulating are definitely not those Corbyn championed (call them “Equality Everywhere” and “Let’s Get To Work”). Nor, for that matter has Starmer got any sympathy for the “Big Bang? Bring It On!” ideology which Corbyn tapped into (perhaps the only thing he shares with Boris Johnson, and certainly the only shred of justification for calling him a Brexiter).

What does Starmer believe in? I’ve no idea, and I don’t really care. The important question is, what sets of beliefs is the Labour Party under Starmer giving voice to – what ideologies is it articulating, and thereby strengthening and normalising? It’s early days, but the image above contains a number of clues: the reference, not to the people of Britain, but to Britain as a country, elevated over all other countries; the specific reference to “growing old” as a concern that the audience might have; and, of course, the Butcher’s Apron for backdrop, a choice which ostensibly evokes the UK as a whole but actually suggests that the nation being championed is rather narrower than present-day Britain, or else some way in the past. Put that lot together and you have, I think, something close to the diametric opposite of the ideologies Labour upheld under Corbyn; it combines a sense that some people very definitely do matter more than others with a sense that something should be done for those people, as well as an appeal to how the world used to be. (Never mind when, exactly; the point is to look back. A national flag is only a forward-looking symbol when it’s being raised on Independence Day.)

Is this a coherent ideology? We’ll see, but I think it just could be; I think a lot of the grudges being sedulously borne in our society can be brought together under a heading of “When’s Our Turn?” – yes to patriotism, tradition, the armed forces and support for pensioners (they’ve done their bit); no to internationalism, cultural innovation, human rights lawyers and hand-outs for scroungers (let them do some work for a change). And, if I’m right, that’s the direction Labour is heading.

4. The Radicalisation of Keir Starmer

Let’s talk about radicalisation – by which I mean, let’s talk about grooming. If you want someone to do something that they find repugnant, the first thing you do is work on the repugnance, then bring them round from tolerance to approval and hence participation. A good way to do this is to surround the victim with people who will affirm that the repugnant act isn’t all that bad after all, and encourage them to think of it as normal. It’s differential association, really – the more people the victim associates with who affirm the normality of the act and the fewer who deny it, the sooner they too will affirm that it’s normal.

But the key point about that model is not that somebody is manipulating the victim, nudging them over the jumps; the key point is that there are no jumps – no firebreaks, no step-changes. There’s just a continuum of behaviours, each of which has a lot in common with its neighbours. For a less emotive example, imagine a woman who’s had a particularly sheltered upbringing and has always objected to bad language, and who by a quirk of fate falls hopelessly in love with… a docker, let’s say. A sailor. A trooper. Somebody who swears a lot, anyway. Now, what happens as we go from stage one in this person’s habituation to bad language (“remain seated with hands clenched and eyes screwed shut, resisting the urge to flee the room”) to stages two (“remain seated, concealing shock and breathing normally as far as possible”) and three (“express disapproval and continue conversation”)? The key thing that happens, I would argue, is the passage of time. With time, the shock diminishes; the woman’s original, spontaneous responses cease to be triggered; and her own responses progressively frame the repugnant behaviour as a little less repugnant, a little more normal. Nobody is grooming this unfortunate woman, nobody is pushing her through barriers; there are no barriers. Once a direction of travel is set, one stage leads naturally to the next.

And so it is with ideology. I said in the previous section that I don’t care what Keir Starmer believes in; more to the point, I don’t think he believes in anything, other than that a Labour government would be a good thing and that he knows just the boy to head it. But he is happy to work with ideologies; specifically, he’s happy to pitch to the people who the message quoted above resonates with, and happy to cut loose everyone who identifies more with the ideologies voiced by Corbyn.

Which is where radicalisation comes in. Clearly, Starmer has already gone well beyond clenching his hands and screwing his eyes shut if anyone brings out the Union Flag. More schematically, we can distinguish between tolerating a discourse – allowing it to be used in one’s presence, or indeed in one’s political party’s communications; mimicking the discourse, borrowing its terms to jazz up one’s own arguments; using it, articulating one’s own arguments in those terms (modifying those arguments where necessary); and promoting it, centring it in one’s political practice.

The journey from toleration, through mimicry, to usage and finally promotion is a journey of radicalisation. Passage from one stage to another is not automatic, but neither are there any barriers in its way; given habituation, the passage of time and the continuation of the stimuli that initially led to toleration, it will tend to happen. Moreover, given that ideologies are social productions and do not exist in any individual’s head, the radicalisation of discourse users also strengthens the ideology, making it seem more relevant and hence more powerful – more capable of describing the world and expressing users’ beliefs and desires.

As far as the discourses of “Equality Everywhere” and “Let’s Get To Work” were concerned, Jeremy Corbyn was never in any danger of radicalisation, for the simple reason that he was already radical; he centred those discourses in his practice, and worked to affirm and strengthen them in society, quite openly and unapologetically. With regard to the discourse of “When’s Our Turn?”, however, I sense that Starmer – like Gordon Brown before him – has no particular commitment to it and is planning to use it instrumentally: mostly mimicry, perhaps a little use, definitely no promotion.

We’ll see how successful he is in avoiding radicalisation. Early signs, it has to be said, aren’t good. Ideologies are not the kind of thing one can dabble in; if, as Labour leader, you say that you believe in making Britain the best country in the world, people will tend to believe you – and the people who believe in this kind of thing will tend to be confirmed in that belief, and identify Labour with it.

Radicalisation doesn’t stand still, in other words; the process that has been begun under Starmer’s leadership could end up giving us a patriotic, nostalgic, troops-supporting, pensioner-friendly Labour Party. This would be a disaster for Britain – in itself, because of the alternative possibilities being squandered and because of the cultural and political movements which it would embolden. (And it almost certainly wouldn’t win a General Election. It might win back half the people who told me they weren’t voting Labour last winter, admittedly, but it would repel the other half – and we’d never find out, because it would also repel most of the people who do the canvassing.)

Let’s hope that Starmer reverses course before the damage is done.

Rethinking radicalisation – new paper

I’ve got a paper in the current (Winter 2019/20) issue of the (OA) Journal for Deradicalisation.

Here’s the abstract and (some) references:

Antagonism, Conflictuality and Resilience: A New Model of Societal Radicalisation

This paper proposes that, instead of framing radicalisation as a process undergone by individuals, society’s political sphere as a whole should be considered as a site of radicalisation: a social setting built on discourses which can themselves be characterised by their level(s) of ‘radicalism’. The radicalisation of individuals’ patterns of discursive action needs to be understood in the context of (changing) levels of societal radicalisation. Unless they also address this societal context, efforts to counter or forestall the radicalisation of individuals and groups can have only local and temporary success. Any counter-radicalisation intervention conducted purely on the basis of an individualised ‘contagion’ or ‘strain’ model will be unable to envision – let alone address – phenomena of societal radicalisation. Building on the literature on securitization, resilience and agonistic conflict, this paper offers a model of societal radicalisation and of the social and political conditions likely to foster this process. Societal radicalisation is seen in terms of the corrosion of agonistic politics and its replacement by antagonism; this is related to deficits in societal qualities of conflictuality and resilience, which are discussed. The radicalising drift from agonism to antagonism, when promoted at government level, is further related to the literature on securitisation. Lastly, one possible mechanism for societal radicalisation – ‘antagonistic amplification’ – is identified and directions for further work are suggested.

Key references

Bailey, G. and Edwards, P. (2017), “Rethinking ‘radicalisation’: Microradicalisations and reciprocal radicalisation as an intertwined process”. Journal for Deradicalisation 10.
della Porta, D. (2018), “Radicalisation: A Relational Perspective”. Annual Review of Political Science 21.
Demetriou, C. and Alimi, E. (2018), “Relational radicalization”. In: Dépelteau, F. (ed.) (2018), The Palgrave Handbook of Relational Sociology. Basingstoke: Palgrave Macmillan.
Edwards, P. (2016), “Closure through resilience: the case of PREVENT”. Studies in Conflict and Terrorism 39(4).
Edwards, P. (2009), ‘More work! Less pay!’: Rebellion and repression in Italy, 1972-7. Manchester: Manchester University Press.
Malthaner, S. (2017), “Radicalization: The Evolution of an Analytical Paradigm”. European Journal of Sociology 58(3).
Mouffe, C. (2013), Agonistics. London: Verso.
Ruggiero, V. (2017), “The Radicalisation of Democracy: Conflict, Social Movements and Terrorism”. Critical Criminology 25(4).
Stephens, W. & Sieckelinck, S. (2019), “Being resilient to radicalisation in PVE policy: a critical examination”. Critical Studies on Terrorism.
Tarrow, S. (1998), Power In Movement: Social Movements and Contentious Politics. Cambridge: Cambridge University Press.
Tilly, C. (2005), “Terror as Strategy and Relational Process”. International Journal of Comparative Sociology 46 (1–2).

The paper grew out of a suggestion by my colleague Gavin Bailey. “Radicalisation” in its conventional usage is a “black box” concept – an unknown process that must have happened before a violent attack takes place. As such it’s difficult, if not impossible, to identify a process of radicalisation while it’s happening, which is obviously when it would be useful to identify it. In practice a precautionary logic tends to prevail, with the term being applied to behaviours which people think may be associated with political violence. This carries an obvious danger of excessive and discriminatory labelling; it’s tempting just to discard the concept altogether. But, even if we can’t reliably identify a specific series of changes and transitions which add up to Radicalisation with a capital R, might it not still be possible to say that something identifiable as “radicalisation” can be seen happening in people’s lives – taking place, in particular, every time somebody adopts a more intransigent, more antagonistic political framing? Gavin’s concept of “micro-radicalisations” got me thinking about what it was that was being radicalised – the person or the conflict? This in turn led me to the idea that a society’s political sphere can itself be radicalised, in the sense of losing conflictuality – the capacity to articulate and contain polarised social conflicts – and/or losing the resilience to deal with disruption. The more conflicts are excluded from the political sphere, the more disruptive the return of a repressed conflict will be; the lower a political sphere’s resilience, the more it will be weakened further by any disruption. As for what constitute conflictuality and resilience on the scale of a society’s political sphere – and what this ‘sphere’ thing is anyway – I’m afraid you’ll have to read the paper.

I’m quite pleased with the end result (particularly after the rewrites suggested by Reviewer 2; thanks also go to Phil), not least because it represents a return to the social movements literature where my academic career began; it’s nice to be citing Charles Tilly and writers influenced by him again (myself included!). The model I’ve ended up with is rather more austere than is the norm in that school – the people in it are considerably less important than the patterns of discursive action they reproduce – but I believe it’s valid; at least, I believe it’ll make an interesting bit of kit to think with.

As for operationalizing the key variables and testing the assumptions… that’s a whole other project, or two.

You can read the Journal for Deradicalisation here; my paper is here. Share and enjoy!

On the (non-)existence of international law [re-up]

[Updated and moved back to the top 13th August]

I’ve just finished the paper I’ve been working on for the last couple of months (or years, depending how you look at it). I think it’s pretty good, but it’s a bit of a departure, even from the last few things I’ve written (which are broadly about how best to approach political extremism under the rule of law). When you consider that I’m employed as a lecturer in Criminology, this paper is – well, ‘departure’ is scarcely the word. Any (constructive) suggestions as to what to do with it will be welcomed!

It’s also ratheralmost certainly far too long (23,000 words), so some surgery may be required. (Ironically, the sprawling beast I’m looking at now was originally planned as the first part of a two-part paper; in part two I was going to (and indeed eventually will) explore the implications of assuming that international law does exist, a question that I promise you is more theoretically fruitful than it sounds.)

I do think it’s pretty good, though. For info, it divides up as follows:

Introduction: 500 words
Austin and ‘positive morality’: 1000
Kelsen and ‘primitive law’: 1800
Hart and secondary rules: 2700
Realism and neo-realism in IR (Morgenthau and Waltz): 3600
Koskenniemi and the force of the dichotomy: 6200 (!)
Miéville and Pashukanis: 3600
Conclusion: 2700

Here’s the abstract:

New maps of denial: On the (non-)existence of international law

International law is unlike other areas of law in the regularity and confidence with which its existence is called into question. International law’s effective existence has been denied by scholars from multiple traditions, with different presuppositions about the existence conditions for a legal system; their convergence in challenging the existence of international law suggests that entrenched ideological rivals may share certain unexamined foundational assumptions.

This paper will review some of the main ways in which contemporary scholarship challenges the existence of international law, assessing the strength of the arguments advanced to support these challenges, the underlying assumptions of those arguments and the implications which follow from them. Prompted by Miéville (2004a), the paper will consider critiques of international law advanced by Austin, Kelsen, Hart, the Realist school of International Relations, Koskenniemi and Miéville himself. Respectively, these have denied (or have been cited as denying) that international law qualifies as law; that it is law in the same sense as municipal law; that it constitutes a legal system; that it exerts a determinant influence on nation states; that it can offer any coherent and non-contradictory guidance; and that it can be a force for emancipation and progress in the world.

In conclusion, the paper will identify the assumptions required in order to consider that international law does in fact exist – and exists as a coherent legal system with the potential to deliver emancipatory reforms – and the implications of doing so.

and the very end of the conclusion:

As a social achievement, international law is both imperfect and precarious; it is both law “in the making” (Lesser 2014: n.p.) and law which risks being unmade. International law’s relative lack of institutional underpinnings highlights the grounding of law in normative practice:

law ‘governs its own creation’, but not in the sense that the creation of law is made possible by higher legal rules: rather, the idea of law governs its own realization. Law, we may say, is the process of its own becoming.
(Simmonds 2007: 11),

International law must needs wear its normativity on its sleeve, in other words – and it is this, perhaps, which explains why it has proved so enduring a target of sceptical attacks, whether informed by legal positivism, foreign policy realism, deconstructionism or Marxism. The discourses and practices sustaining and reproducing international law are thoroughgoingly normative discourses and practices, impossible to fully understand or even demarcate without some adoption of a Hartian ‘internal point of view’. It is understandable that critics unwilling to buy into what they see as liberal illusions, and alert to the role played by international law in sustaining and ratifying an unjust global status quo, should decline to adopt that point of view – but the effect is to overstate the strength and coherence of the ideological underpinnings of the status quo, and to discard a potentially powerful set of normative resources for change.

and, to give you some idea what area I’m working in, the references:

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Binns, P. (1980), “Law and Marxism”. Capital and Class 10.
Brierly, J. (1955), The law of nations (5th edition). Oxford: OUP.
Brierly, J. (1958), ‘The basis of obligation in international law’ and other papers. Oxford: OUP.
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Finnemore, M. and Sikkink, K. (1998), “International Norm Dynamics and Political Change”. International Organization 52(4).
Fischer Williams, J. (1929), Chapters on current international law and the League of Nations. London: Longmans.
Fischer Williams, J. (1939), Aspects of modern international law. Oxford: OUP.
FitzMaurice, G. (1956), “The foundations of the authority of international law and the problem of enforcement”. Modern Law Review 19(1).
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Gihl, T. (1957), “The legal character and sources of international law”. Scandinavian Studies in Law 1.
Hart, H. L. A. (1957), “Dias and Hughes on jurisprudence”. Journal of the Society of Public Teachers of Law 4.
Hart, H. L. A. (1961), The concept of law. Oxford: OUP.
Hart, H. L. A. (1983), Essays in jurisprudence and philosophy. Oxford: OUP.
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Jenks, C. (1964), “Fischer Williams – The practitioner as reformer”. British Year Book of International Law 40.
Jones, J. (1935), “The pure theory of international law”. British Year Book of International Law 16.
Jütersonke, O. (2010), Morgenthau, Law and Realism. Cambridge: CUP.
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Kelsen, H. (tr. Knight, M.) (1967), Pure Theory of Law. Berkeley, CA: University of California Press.
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Koskenniemi, M. (2006), From Apology to Utopia (second edition). Cambridge: CUP
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McDougal, M. (1952), “Law and power”. American Journal of International Law 46(1).
Miéville, C. (2004a), Between equal rights: A Marxist theory of international law. Leiden: Brill
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Murphy, G. (2010), Shadowing the White Man’s Burden. New York: New York University Press
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Pashukanis, E. (2002 [1924]), The General Theory of Law and Marxism. Brunswick, NJ: Transaction.
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Waltz, K. (1979), Theory of International Politics. New York, NY: McGraw-Hill.
Waltz, K. (1990), “Realist thought and neorealist theory”. Journal of International Affairs 44(1).
Warrington, R. (1980), “Standing Pashukanis on his head”. Capital and Class 12.
Wendt, A. (1995), “Constructing international politics”. International Security 20(1).
Wetlaufer, G. (1997), “Gunmen, straw men, and indeterminacy: H.L.A. Hart, John Austin, and the concept of law”. Iowa Law Review 82(5).
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John Gardner: two responses

Like many, I was deeply saddened to hear of the (early) death of the legal philosopher John Gardner. While I never knew him, I’ve found Gardner’s work consistently lucid, thoughtful and challenging.

Gardner’s work was – and is – thought-provoking in the truest sense: it makes you think. By way of evidence, here’s a blog post I originally wrote in January 2013, when a couple of lines in papers by Gardner had provoked thoughts that wouldn’t let me alone till I’d written them down. (The blog post is as far as they went, unfortunately. I emailed Gardner to let him know about it, but never heard back.)

I hadn’t known, until reading his death notice, that Gardner was ill; on a more trivial note, I hadn’t known that he was younger than me. (Truly, an infant prodigy!) I guess I’d better get some writing done.

Here’s the post from 2013.

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.

I’ll Show You The Life Of The Mind

This account of an awful Oxford interview got a lot of attention recently. The process it describes is not so much an interview in any recognisable sense as a kind of upper-class hazing ritual, beginning with the bizarre seating arrangements

There are three people in the room; a woman is lying on a chaise longue by the door and, standing in the corner a man with a black moustache and curly hair, who I discover is the admissions tutor … There is an empty chair in the room, which when I sit makes me higher than everyone else, and behind this chair, slouched against a bookshelf, sits another man.

and continuing through the ‘shocking’, ‘outlandish’ questions thrown out to challenge the unsuspecting candidate

‘Why do you think people listen to the radio?’

This at least is a question I know the answer to …

“Erm, because they’re lonely.”

She smirks. Naive again, but what else should I say?

“So do you think that the radio should be under the auspices of the Social Services then?”

That kind of “épater les bienpensants” right-wingery seems an even clearer class marker than the chaise longue.

It rang a bell with Adam, even if his experience wasn’t quite so grotesquely awful:

 

This is an excellent essay. A few years before the experience @JuliaBell so eloquently describes here I (nervy suburban teenager from a provincial State school, deeply uncomfortable in my own skin) had a similar interview experience at Brasenose. https://t.co/SWwxAMj2CX

— Adam Roberts (@arrroberts) November 15, 2018

For myself, I was warned by my English teachers that Oxbridge interviews were both tough and weird, with a kind of toughness and weirdness you might expect from gatekeepers of hundreds of years of privilege. One Cambridge interviewer supposedly used to sit reading the paper with his feet up on his desk, then glance across at the candidate and say, “Impress me”. My English teachers liked a good story – one of them specialised in stories beginning “When I was in the diplomatic corps” or “When I was in the SAS” – but even they never suggested that a college admissions interview might be conducted partly from behind the interviewee and partly from a chaise longue. Truth is stranger than fiction.

And yet. Perhaps the people I met at Cambridge had all been unusually lucky, but all that my wife recalls is a fairly ordinary office, with chairs at the same height, and a reasonably relaxed conversation (as much as it could be) about Macbeth’s moral universe, with a rather posh but friendly old man. (She’d applied to Cambridge as a lower sixth-form student at a college in Preston.) My best friend at the time had a slightly harder time of it; his specialist topic was Keats, and he’d armed himself with several quotations from the “Ode to Autumn” – which he confidently sourced to the “Ode to Melancholy”. He didn’t help his case, when the interviewer politely suggested that they turn to the “Ode to Autumn”, by insisting that it was the “Ode to Melancholy” he wanted to talk about. Still, he got in too. Me, I didn’t have an interview – I never found out whether it was in recognition of my performance in the college entrance exam or just an oversight.

Several years later – clearly – our children both applied to either Oxford or Cambridge, and they both experienced pretty much the kind of interview that Oxbridge colleges tell the world that they administer: friendly but persistent questioning, drawing the student out to the limit of their existing knowledge, then pushing them a bit further and seeing how they coped. The main difference from our time was that they each had two or three separate interviews, mostly with more than one person. One thought the interviews mostly went all right, one thought two of them were fine but the last was a car-crash; one got a place, one didn’t. (Not necessarily in that order.) But neither of them was scorned, deliberately humiliated, exposed to ridicule or ambushed in any way.

But I wouldn’t want to end the story there. Take that college entrance exam: I got in on, among other things,

• an essay on doubled perspectives in Wuthering Heights (which I had just read)
• an essay on Shakespeare based on Wyndham Lewis’s The Lion and the Fox (which I had just read)
• an essay on late-Romantic poetry, focused entirely on Edward Lear

My method, in other words, was

1. Read a lot (at the last minute)
2. Come up with some mad idea that people may not have thought of
3. Follow through said idea, taking it completely seriously

The first message I got from Cambridge was that this was in fact the way to do it – and that it was quite in order for me to value the ability to work this way, because Cambridge valued it too. This was also one of the last messages I got from Cambridge. My single best paper in Part II, at the end of third year, was the one where I compared a passage in Melville’s The Confidence Man (a character struggles to convey the precise meaning of the word ‘certain’) with a passage in one of D. H. Lawrence’s essays on American literature (Lawrence struggles with the word ‘nature’); in the same paper I made use of quotations from two separate essays which I’d only read on the morning of the exam (Eliot on Henry James and Henry James on Thoreau). I had fun.

So there was a certain[sic] amount of “Owl Post” about being admitted to Cambridge, for me, and an element of “sorted into Ravenclaw” on top of that; there was a feeling that, now that I was in, I no longer needed to conceal or apologise for the stuff I was interested in or the way my mind worked. What I did have to do was demonstrate that I could get results – and then demonstrate it all over again. Over the three years we were expected to work at a pretty high level, with little or no supervision, and to put in fairly Herculean amounts of reading. Typically you’d be given two weeks to write an essay on an author and then left to your own devices; the first step was to read everything they’d written, or have a good stab at it. A friend who was ‘doing’ Hardy was advised by his supervisor to swerve Jude and Tess and begin with a book neither of us had so much as heard of, A Laodicean. (He said he’d discovered that it was actually the first book in a trilogy – A Laodicean, A Quiet Icean and A Completely Silent Icean.) Given that that was how ‘Cambridge’ worked, the college entrance exam that we took – and, perhaps, the interview too – could be justified as a way of selecting for people who could work, and thrive, under those conditions.

But there was more to ‘Cambridge’ than that. On one hand, what you’d been selected for, or sorted into, wasn’t just an environment where you could get intellectual work done without distractions (although it certainly was that). It was a wealthy and luxurious environment, making it a privileged setting in itself; and it was also, unavoidably, a setting for the maintenance and reproduction of privilege in other forms. On the other hand, in a setting where studiousness and creativity are the price of admission, studiousness and creativity are weirdly undervalued: to stand out you needed to be really good, or else you needed something else to trade on. Flash helped; ‘front’ and a certain amount of extroversion helped; boundless self-confidence helped. (See above, ‘reproduction of privilege in other forms’.)

In the absence of those things you’d find yourself, sooner or later, relegated to the B team – and, labelling processes being what they are, once you were in that position it was hard to think your way out of it, or even to maintain the intellectual self-confidence that had got you that far. One of the English Fellows at my college was notorious among my friends for her unapologetic division of sheep from goats; several of our essays were damned with the faint praise of ‘solid’ (which, as the term wore on, she alternated with ‘stolid’). She was much more impressed by another student’s twenty-minute presentation on food in Shakespeare, which was mainly devoted to exploring the psychic resonances of food and eating through lengthy quotations from Lévi-Strauss and Melanie Klein, touching base with Shakespeare by way of what sounded like a trolley-dash through a concordance (“Come, let’s to dinner” – Henry IV Part II).

It’s odd how intimidating ‘front’ can be – particularly when the person with the front is succeeding and you’re watching them do it. Thinking of that presentation now, I think “lots of reading, check; mad idea, check; follow it through, check” – it’s not as if I didn’t know how the trick was done (see above re: Melville). At the time I felt thoroughly outclassed and resented it deeply: if I’d known that was what you wanted, I would have – well, I couldn’t have done that, obviously, but… I’d never felt overshadowed by the more ‘popular’ kids at school – I always felt that I was a roaring success at being me, and all I lacked was wider recognition of this accomplishment. At Cambridge, quite a large part of what I valued about being me was put in the scales, weighed and found… fine. Absolutely fine. Nothing wrong with it. Solid. Stolid, even. (What would a stolid essay even look like? Not that I’ve borne a grudge for the best part of 40 years or anything…)

By the end of first year Cambridge’s original, welcoming message to me

1. It’s good to think the way you do, and care about the things you care about.
2. There is a place where thinking the way you do is valued, and you’ve reached it.

had mutated into something less benign:

1. It’s good to think the way you do, and care about the things you care about.
2. There is a place where thinking the way you do is valued; not only valued, in fact, but rewarded with luxury and privilege. But it’s not for you.

By the time I graduated, I sincerely and straightforwardly believed all of this, and didn’t even think of returning to higher education for another ten years. (It wasn’t unusual to give up on the Life of the Mind after three years of Cambridge English, if the group of twelve I studied with were anything to go by; only three or four of us went on to further study, and out of those only one was actually studying English.) In the longer term I was left with two antagonistic – but complementary – convictions, both equally baleful: the conviction that somewhere out there, perhaps behind a green door in a sixteenth-century wall, is my ideal career, a career consisting almost entirely of deep academic thought; and the conviction that I personally don’t deserve anything like that and will never see it. (The last of these is almost certainly correct, of course.)

I don’t think that Oxford and Cambridge are just like any other university in terms of teaching, or that their students are no different from other students; I think that they genuinely promote high-quality academic work and that their admissions processes genuinely favour people with the ability to do it. But I also think that they do a lot more than promote high-quality academic work, and that they select for a lot more than academic ability – with the result that, if academic ability is your only strong suit, Oxbridge may make promises it doesn’t intend to keep. So I sympathise with everyone who didn’t get through admissions – everyone who was repulsed (in either sense of the word) by a selection process which was also a rejection process – but I also think that getting in was a mixed blessing for me. The selection process didn’t stop when I got in.

 

 

Aristotelian thoughts, possibly

Alasdair MacIntyre writes in After Virtue:

Aristotle tries to use the notion of a mean between the more and the less to give a general characterization of the virtues: courage lies between rashness and timidity, justice between doing injustice and suffering injustice, liberality between prodigality and meanness. For each virtue therefore there are two corresponding vices. And what it is to fall into a vice cannot be adequately specified independently of circumstances: the very same action which would in one situation be liberality could in another be prodigality and in a third meanness.

This is a decidedly foreign way of thinking to us now; we tend to locate ethical debates at the level of societies rather than individuals, think in terms of individual positive qualities which can each be independently maximised (liberty, equality, security etc), and unpack political disagreements in terms of different orderings of those qualities (putting security above liberty, liberty above equality, etc). Morality for individuals has a similar shape, with unquestioned virtues such as truth-telling and promise-keeping, each of which can be maximised until some unpredictable point where they may turn out to conflict. Whether for individuals or societies, the idea of not maximising anything – of seeking a point between two opposed maxima – seems counter-intuitive. The Aristotelian ‘mean between extremes’ also has overtones of the complacency of moderate centrism – the frame of mind according to which ‘extreme’ political views can be dismissed unheard purely because they are ‘extreme’ – which makes it unappealing, at least if you’re not a moderate centrist.

I think it may be more useful than it looks, though. Here are two cases where this approach has some value, both of which should ring some bells with anyone who’s been involved in political debate recently.

In Saturday’s Graun, Oliver Burkeman wrote about what looks like an interesting paper on “prevalence-induced concept change”. I haven’t been able to access the full text, but here’s the abstract:

Why do some social problems seem so intractable? In a series of experiments, we show that people often respond to decreases in the prevalence of a stimulus by expanding their concept of it. When blue dots became rare, participants began to see purple dots as blue; when threatening faces became rare, participants began to see neutral faces as threatening; and when unethical requests became rare, participants began to see innocuous requests as unethical. This “prevalence-induced concept change” occurred even when participants were forewarned about it and even when they were instructed and paid to resist it. Social problems may seem intractable in part because reductions in their prevalence lead people to see more of them.

Does the point generalise? Is it possible that things are in fact getting better, but that we don’t realise it because we treat whatever our current worst social problem is as the worst social problem? Durkheim certainly thought it was possible; in fact, he thought it was happening in nineteenth-century France:

Imagine a society of saints, a perfect cloister of exemplary individuals. Crimes, properly so called, will there be unknown, but faults which appear venial to the layman will create there the same scandal that the ordinary offense does in ordinary consciousness. If, then, this society has the power to judge and punish, it will define these acts as criminal and will treat them as such. … Formerly, acts of violence against persons were more frequent than they are today, because respect for individual dignity was less strong. As this has increased, these crimes have become more rare; and also, many acts violating this sentiment have been introduced into the penal law which were not included there in primitive times.

(See also “anti-social behaviour”, “problem families” etc.)

The question then is, does this matter? Yes. And then again, No. Burkeman cites a neat analogy from Dan Gilbert, one of the paper’s authors:

an emergency doctor is right to prioritise gunshot wounds over broken arms; but if there are no gunshot wounds to treat, she’s perfectly correct to expand her definition of “what needs immediate attention” to include broken arms. Conversely, a neurologist shouldn’t expand his definition of “brain tumour” simply because he can’t find any.

Unpacking the analogy, we can envisage two main approaches:

A: We can be thankful that problems causing really serious harms have abated, and alert to prevent their recurrence, while still devoting most of our attention to the problems that we face now. This does not mean that major and minor problems are equally serious; to treat them as equivalent would represent not only a loss of proportion but also a betrayal of historical memory. Things can get better; the fact that things have got better is proof of it.

B: We face new types of problem now – many of which we previously saw as minor, as causing less serious harms – but they are just as serious for us. After all, every problem is serious if it causes genuine harm. Not to take our current, supposedly minor problems just as seriously as the old major problems would demonstrate the persistence of outdated ways of thinking and show contempt for the people who are actually suffering now.

Which is right? It’s probably clear that I lean one way rather than the other – indeed, it could be argued that the way I’ve set up the problem is skewed* – but I don’t think one argument is right and the other wrong; indeed, I don’t think it’s possible to conclude that one’s right and one’s wrong. Historical memory, and keeping faith with those we’ve learnt from, are important virtues; so is attention to the present, and keeping faith with people who may need us now. And it’s hard to do both at once; beyond a certain point, it’s impossible to do both. The answer is, frustratingly, somewhere in the middle; even more frustratingly, there’s no single answer that can be applied at all times. Like Trillian’s handbag, life teaches us that there are times when it’s important to keep a sense of proportion and think of the past, and that there are times when it’s important to keep a sense of urgency and learn from the present; what it doesn’t teach us is which is which.

*Have I put an authorial thumb on the scales by insisting that we know which is a major problem and which a minor one? Isn’t the severity of contemporary problems actually unknown, given that they haven’t finished harming us yet? I don’t think so – or rather, I don’t think that the unknowability of contemporary problems is a point at issue between A and B. Someone who maintains that a certain kind of speech act is actually violent, or that failing to affirm Israel’s right to exist is anti-semitism, isn’t generally saying that the unknown longer-term effects of a relatively harmless speech act in the present could ultimately reach the level of a harmful action; that would be a different argument, one which conceded that those speech acts were in fact relatively harmless.

Another example: you support a cause, or a set of inter-related causes; they’re reasonably coherent and comprehensive, so you don’t generally find it hard to read off your position on a contemporary issue. On one issue, however, you find yourself at odds with some – perhaps a majority – of your usual allies; they make arguments that sound familiar, referring back to the broad set of causes both you and they support, but on this issue you find you’re not convinced. On ‘your’ side of the problematic issue, you’re pleased to find a number of people who share those same causes with you; alongside them, however, are people with whom you share nothing but this one issue. What to think? If you believe something, does it matter who else believes it?

A: You can tell a lot about an issue from who supports it. If the far Right are agitating on an issue, that means one of three things: it’s part of a right-wing programme, in which case Leftists should oppose it; it can be twisted to support a far Right agenda (“green belt” campaigning targeting new mosques, “animal welfare” targeting Halal meat), in which case Leftists need to take care not to get dragged in; or it’s just being used to exploit splits in the Left, in which case Leftists shouldn’t play their game for them. Brexit is a perfect example; the fact that the EU is an anti-democratic capitalist institution fooled some Leftists into giving their backing to what was always a neoliberal project exploiting xenophobic nationalism, in which the hopes of the anti-EU Left could play no real part.

B: My political outlook is my own; the issues I agitate on are issues that I believe are important. More importantly, given that I’m a Leftist, these are issues that I believe can – and should – be articulated as part of an overall Left agenda. We should not be put off from doing so by the fact that an issue can also form part of a Right-wing agenda – let alone the fact that it can be exploited by the Right. (The Conservative Party supports full legal equality for gay and straight people; that doesn’t make it a reactionary demand.) The EU is a perfect example: while we need to oppose the reactionary neoliberal project of Brexit, this should not fool the Left into making common cause with the pro-EU ‘remain’ lobby and overlooking the intractable problems which the EU poses for any Left project.

Again, which is right? My discouraging answer is, again, that I don’t think we can say that one’s right and the other’s wrong; in some situations “look who you’re lining up with” will be a correct and appropriate response, in others it will be a distraction that should be ignored. And, again, it’s impossible to do both. Life teaches us that there are times when it’s important to see where your allies and enemies are and form your opinions accordingly, and that there are times when it’s important to keep your wits about you and make your own mind up; what it doesn’t teach us is which is which. Or, as Douglas Adams (and Michael Bywater) put it in Mostly Harmless:

[Trillian] reflected that if there was one thing life had taught her it was that there are times when you do not go back for your bag and other times when you do. It had yet to teach her to distinguish between the two types of occasions.

This isn’t a counsel of despair, or a justification for impulsiveness and actes gratuits; there is still a scale, and it is still possible to hit the right spot on it. But it’s a scale with two ends, and heading for either one won’t reliably get us where we want to go. To complete that MacIntyre quotation:

what it is to fall into a vice cannot be adequately specified independently of circumstances: the very same action which would in one situation be liberality could in another be prodigality and in a third meanness. Hence judgment has an indisputable role in the life of the virtuous man which does not and could not have in, for example, the life of the merely law-abiding or rule-abiding man.

Interesting, no? Reads a bit like a dispatch from a neighbouring universe, but it’s interesting. (Sorry about the early-80s sexism – although, to be honest, I don’t think “the virtuous person” is much less foreign a concept to us now.)

A song of the past

Glen Newey died on the 30th of September, unexpectedly and far too soon (he was 56). Glen and I were acquaintances at best – our contacts between 1982 and 2017 amounted to one brief email exchange and a vague commitment to meet up when it was possible. I didn’t know him particularly well before 1982, come to that.

However, we were at the same Cambridge college for the same three years, and he did make an impression on me then. He certainly stood out. I remember thinking he looked like something out of Cold Comfort Farm – big-boned, raw complexion, blank, unyielding stare – and being surprised to hear through friends that he was one of the brighter and more hard-working students in his subject group, almost certainly heading for a First. To talk to he was reserved and brusque; he didn’t say much or invite small talk. (To talk to he was hard work, to be honest. Mind you, so was I.) He told me once he’d grown up in Guernsey. What was it like? I asked. “A shithole,” he said, then gave a small smile.

It was fourteen years after leaving Cambridge when I saw Glen’s name again, in the letters column, and subsequently in the main body, of the LRB. From his earliest review – of Habermas’s Between Facts and Norms – he had a distinctive style, a kind of punk donnishness. This isn’t just a matter of interleaving tightly-worded argument with references to Harry Secombe and the Great Train Robbery (“eligible conceptions of the good are unlikely to include those of Ronald Biggs”); Terry Eagleton would do as much. Glen went further, as in his reminiscences of a trip to Berlin:

In deference to the BSE brouhaha, posters in every public eatery in town vouchsafed that the dead quadruped on offer was rein deutscher Herkunft – of pure German origin; grim photos in Der Spiegel showed British bovines being shoved into Topf-style incinerators. Irony, or even memory, was at a discount.

The relentless tastelessness of the Nazi allusions here was very Glen, as was the combination of circumlocution and brutality with which it was delivered. When a reader from Frankfurt complained a couple of issues later, Glen declared himself “happy to make with the smoking calumet”, continuing:

I count Germans among my closest friends, some of whom I stay with when in Berlin. My Significant Other herself hails from the tribe – indeed, her mother is a proud alumna of the Hitler Youth’s female branch, with memorabilia which she showed off to me when I was first presented for her approval.

He then pointed out the flaw in his correspondent’s logic. He had fun.

A few years later, an article on the royal family – memorably headed “About as Useful as a String Condom” – gave Glen’s punk-donnish style free rein. Some correspondents found it a bit much, and I was inclined to agree. Well, sort of.

Letters, 20 February 2003
You describe Glen Newey as a reader in politics rather than Reader in Politics (LRB, 23 January). From this, and from his cheerful pee-po-belly-bum-drawers prose style, I infer that he is a first-year undergraduate shaping up for a career as president of the students’ union. It’s not too soon for him to learn some useful lessons.

First, to label a columnist more talented than yourself as ‘drek’, and a political journalist more serious than yourself as vacuous, may not convince your readers that you yourself are free from these defects. Second, it is a long time since anyone believed that abolition of the monarchy necessarily guaranteed the achievement of a democratic and egalitarian society. [continues]
– Anne Summers

(Along the way, Glen had characterised Jonathan Freedland as ‘vacuous’ and Julie Burchill as ‘drek’. Seems fairly mild, to be honest.)

Letters, 6 March 2003
I can set Anne Summers’s mind at rest on one point (Letters, 20 February): Glen Newey served his time as a first-year undergraduate several years ago, in a cohort including such eminences as Anatol Lieven and myself (parsing that last clause is left as an exercise for the reader). Like Summers and others, I found the style of Newey’s piece on the monarchy distracting; it suggested a sustained and ultimately rather laborious attempt to disguise his native tones as those of an intellectual Richard Littlejohn. Ars est celare artem, of course, but another time I’d rather have more of Glen’s own voice and less from his ars.
– Phil Edwards

I know, it’s dreadful. (Even the formulation is wrong – logically it should be ‘and’, not ‘but’.) By way of context, I was 42, I was midway through my doctorate, I was supporting myself as a freelance journalist – mainly writing opinion columns in computing magazines – and applying for interviews for academic jobs, none of which I got. So when the opportunity presented itself to demonstrate that I, too, could put a Cambridge education to the service of being rude in ornate language, of course I jumped at it. Not that it did me any good, and I’m not sure how I thought it would. Sympathetic magic, really; might as well flag down a flying saucer.

And that’s almost all I can say about Glen Newey. He went on writing for the LRB and became an established presence on the LRB blog. (And hey, I’ve written for the LRB blog too! Twice!) He did dial it down – a bit – but never lost that relish for épater le bourgeois, and épater la galérie while he was about it. It was seldom gratuitous. He knew that sometimes – more often than you might think – people need a bit of a shock to see things how they are; sometimes – more often than you might think – telling things how they are is shocking. Our paths crossed briefly a few years later, when he was at Keele and I was applying for a job there; we couldn’t arrange to meet on the day of the interview, though, and I didn’t get the job, so that was that. No ending; the story just stops.

---

Brian Barder died on the 19th of September. Brian started blogging in 2003; he was in his late sixties and a retired diplomat. When I started the forerunner of this blog, a couple of years later, Brian’s was one of the first I added to my blogroll. Back in the glory days of blogging (circa 2006-8), I commented regularly on his posts and he occasionally on mine, sometimes pursuing our debates through email. I agreed with him strongly on the merits and limits of the international legal order, in particular its lack of support for interventionist adventurism; I also shared his Old Labour loyalties and his heartfelt disdain for the New Labour crew, then very much in power.

We disagreed on other things; in particular, Brian took (what I would call) the conventional view that “terrorists” are beyond any conceivable pale, and that for states to take terrorist actors into account in any way when pursuing their own interests would be tantamount to succumbing to blackmail. I argued the opposing position at some length – pointing out, for example, that if an organised crime syndicate has recently started operating in a certain country, that country’s government will naturally take account of this fact when deciding whether to grant new casino licences, if only by managing things so as to frustrate the crime syndicate. Brian was immovable: the only principled response to terrorism was to say “I see no ships”. (And I’m not saying that he was wrong, necessarily. Certainly organised crime syndicates don’t set out to influence governments in the way that terrorist groups do.)

I was twenty-six years Brian’s junior, as well as having neither qualifications nor experience in a field where he had both; I’m sure he sometimes found my questions and comments impertinent or gauche. For all that, I found him almost invariably wise, thoughtful and kind, and was hugely gratified when he endorsed my readings of international law (most recently in 2013, with regard to R2P and Syria). If there was sometimes a touch of de haut en bas graciousness in there, he carried it off well.

Some time in the late 2000s, the glory days of blogging ground to a halt. When the music stopped I found that, as well as posting a lot less often, I was reading and replying to an almost completely different group of bloggers. So, farewell then, James C-M, Justin McK and Jarndyce; hello, Rodent, WbS and Splinty. A few bloggers from the first group made it into the second, and Brian was one of them. Brian last commented here in 2016, while my last comment at his place is as recent as June this year.

By then, however, a new and more serious disagreement between us had arisen. Old Labour though he was, Brian was never especially left-wing, and he had no time whatever for Jeremy Corbyn or his supporters. As well as distrusting Corbyn on foreign and defence policy – no small matters for a former diplomat – I think Brian simply couldn’t be doing with Corbyn as a politician; for him, I think Corbyn’s failure to control the PLP betrayed lack of power, charisma or both, while his personal scruffiness and penchant for mass meetings were the mark of a dilettante extremist.

I myself had opted for Corbyn even before I thought he had any chance of winning the leadership, and hadn’t seen any reason to waver in my support since then – certainly not since the election, in which Corbyn’s leadership was genuinely impressive. Given another couple of years I think even Brian might have been won round. Sadly, he didn’t have another couple of years. I’d known since earlier this year that Brian was suffering from a life-changing illness, but it barely even crossed my mind that the outcome might be worse than that. 83 is what we used to call ‘a good age’, but it doesn’t make the news of his passing any less of a shock. He leaves a gap in my life, even though I never met him, and I can only commiserate with all those who knew him much better than I did.

NB I didn’t ‘Sir’ Brian in life – entirely with his approval – and don’t intend to start now.

Standing in the shadows

More on Eric Kaufmann’s recent research into ‘racial self-interest’.

The concept of ‘racial self-interest’ runs through EK’s research report. In fact, it runs through the research like a barium meal: it goes in at one end and comes out unchanged at the other, after being visible all the way through. A few quotations to give you the idea:

Shadi Hamid … argues that it is important to distinguish racism and racial self-interest, and that Trump supporters, who voted in a racially self-interested way to limit immigration, should not be accused of racism. (Executive Summary)

is it the case that immigration skeptics are majority ethnic partisans who are acting in what Shadi Hamid terms their ‘racial self-interest’: seeking to maximise the demographic advantage of their group (Introduction)

Consider the question: ‘A white American who identifies with her group and its history supports a proposal to reduce immigration. Her motivation is to maintain her group’s share of America’s population. Is this person: 1) just acting in her racial self-interest, which is not racist; 2) being racist; 3) don’t know.’ … First, the words Asian, Black or Latino are swapped for White to see how responses change. Second, ‘decrease’ [sic] is changed to ‘increase’ immigration, and ‘maintain’ to ‘increase’ group share. Thus: ‘An Asian American who identifies with her group and its history supports a proposal to increase immigration from Asia. Her motivation is to increase her group’s share of America’s population.’  (Immigration and Racism: A Conjoint Analysis)

The questions were very explicit about specifying that the subject in each question wants particular policies in order to preserve or enhance her group’s demographic share. In this sense, the ‘correct’ answer is that people are ‘acting in their racial self-interest, which is not racist.’ It is possible – and consistent – for someone to consider all racially self-interested behaviour racist. But the variation in white liberal responses based on whether the question pertains to whites or minorities, belies this rational explanation.  (Immigration and Racism in Britain and America)

On the question of whether group-oriented immigration preferences are racist, white liberals are more biased than white conservatives … imputing white racist motivations to those trying to advance their racial self-interest. … it is important to draw a distinction between irrational racism and rational group self-interest. Wanting fewer people from other ethnic groups or higher numbers of co-ethnics to bolster one’s group share is not racist (Conclusion)

“Racial self-interest? How is that not racist by itself?” (Justify Your Answer: Examining qualitative evidence)

The last one is from a survey participant, not EK; I just thought we needed some fresh air.

The research starts from the assumption that ‘racial self-interest’ is distinct from racism, and that recognising this fact explains – and helps condone – some racially discriminatory behaviour. The survey then prompts participants with the information that ‘racial self-interest’ is in fact distinct from racism, and invites them to apply it to a hypothetical situation which is designed to exemplify racial self-interest. Finally, EK reads the data and concludes that ‘racial self-interest’ is distinct from racism, and that only irrational bias can account for left-wingers’ failure to acknowledge the fact.

This isn’t all that’s going on here, though. A clue is supplied by a passing reference to Kahneman and Thinking, fast and slow. The sucker-punch structure of EK’s question is very reminiscent of the question with which Tversky and Kahneman identified the ‘conjunction problem’:

Linda is 31 years old, single, outspoken, and very bright. She majored in philosophy. As a student, she was deeply concerned with issues of discrimination and social justice, and also participated in anti-nuclear demonstrations. Which is more probable?

a) Linda is a bank teller.

b) Linda is a bank teller and is active in the feminist movement.

The great majority of people consistently get this wrong. The correct answer is – logically has to be – a); “A and also B” cannot be more probable than “A with or without B”, whatever A and B are. But we’re not hard-wired to be good at probability; we seem to read the question as an invitation to fill in the blank in the way that gives the most satisfying story, in this case option b). EK’s question is different, but it has a definite family resemblance; it’s as if we were asked

As a student, she was deeply concerned with issues of discrimination and social justice, and also joined the local Labour Party. Which is more probable?

a) Linda is a Labour Party member, which is not the same as being a socialist.

b) Linda is a socialist.

In EK’s research, in other words, respondents were primed with the ‘right’ answer and duly repeated it back, in the same way that Tversky and Kahneman’s subjects were effectively primed with the ‘wrong’ answer. But this isn’t the point of the research; the point is that a minority of respondents gave the ‘wrong’ answer despite the priming – and it’s these subjects that EK is really interested in. His interest isn’t unmotivated – he clearly believes that the ‘racial self-interest’ model is in fact the right answer, as well as being the ‘right’ answer to the question as he formulated it. This, though, is something that the research as designed can’t confirm or deny; it’s assumed at the outset and assumed in the conclusion.

As, perhaps, it has to be: as the previous post demonstrate, it’s very difficult to separate ‘racial self-interest’ from racism other than by definitional fiat – and even that is liable to collapse if we look at ‘racial self-interest’ from the outside, in terms of its effects on those who are disadvantaged by it. (If I stop my daughter playing with your daughter because of the colour of your skin, do you think that (a) I’m motivated by racial hate; (b) my motives are unknowable and may be nothing more than racial self-interest, which would be perfectly fine; or (c) whatever my motives, my actions themselves are hateful?)

Nor is it clear what the advantage of adopting this concept would be, other than that some people with racist views would no longer be challenged on them. For EK, this in itself would be beneficial:

In one focus group run as part of my ESRC-Demos research, a lady complained of the Croydon (UK) tramlink that ‘I might have been the only English person on that tram… I didn’t like it… I could have been in a foreign country’ was challenged by another participant who asked, ‘Why should that affect you that there’s minorities on the [tram]?’ The woman swiftly changed her narrative to a more acceptable, economic, form of opposition to immigration: ‘It doesn’t affect me. It, um… I’ve got grandchildren and children… I don’t think things are going to get any better or easier for them, to get work.’ In other words, economic but not ethnocultural concerns about immigration are considered legitimate subjects for public debate. This produces dishonest debate rather than a frank and rational exchange between people of all backgrounds – realising they share similar ethnic motivations and must reach an accommodation that is fair to all.

But why would the detoxifying of ‘ethnocultural concerns’ be a good thing? How would the resulting ‘honest’, ‘frank and rational’ debate go?

– Why should that affect you that there’s minorities on the [tram]?
“Well, I’m White, aren’t I. Don’t like being outnumbered by foreigners – stands to reason. It’s against my racial self-interest.”
– Oh, racial self-interest, right. Don’t feel it so strongly myself, but if you do, well, fair enough.

There isn’t that much to debate, at the end of the day: a woman in Croydon didn’t like being – or feeling – outnumbered by foreign people on a tram, and that feeling is either (a) racist and therefore not legitimate or (b) not racist and therefore legitimate. It doesn’t matter how many people might frankly and honestly admit to racist sentiments, if encouraged to do so; if those sentiments are racist, they shouldn’t be publicly legitimated. Really, this is just “you can’t say that any more” in more sophisticated language.

The notion of racial self-interest also carries the unwelcome implication that there are such things as races which can have self-interest. EK has gestured towards the classic sociologist’s answer to this kind of question – that if people believe things are real and act accordingly, they are real in their consequences – but in this case it won’t really do. To believe in ethnic groups – even to believe in one’s own – is not necessarily to believe in ethnic group interests. If people believe that the Black British identity, the Muslim identity, the Welsh-speaking identity (etc) are real and act accordingly, no harm necessarily follows: everyone is free to maintain, develop and celebrate the identities which they feel to be theirs, and to seek out like-minded people to support them in doing so. No harm necessarily follows, up to the point where they start believing that identities like these have interests and are in competition. It’s this additional belief that leads people to act hatefully to people of the ‘wrong’ group, and it’s this belief that we generally call racism.

The one situation where ethnic group interests can become a reality, ironically, is when the ethnic group is under threat – which may be the end result of racism. Where a particular group is threatened with extinction, or its existence is denied, or its identity is treated with contempt, all members of that group have a genuine common interest in group preservation and self-assertion. But this interest is met by physical and cultural survival; there is no intrinsic interest in group expansion, except so far as necessary to assure bare survival. Moreover, the group interest is secondary; it is derivative of the fundamental individual rights which everyone has, to life and to self-actualization through culture. If those needs are met in ways that don’t perpetuate the group, the group has no independent interest in survival. There may be a thousand nominal Muggletonians in Britain, but if none of them feels that being a Muggletonian is an important part of their identity, the extinction of Muggletonianism is inevitable and is not to be regretted (except by historians).

The group extinction scenario clearly has no relevance to the position of Whites in Britain and the USA. EK invokes it nevertheless, noting that Zoroastrians frown on exogamy for just this reason. A similar logic presumably underlies an otherwise puzzling formulation, when EK argues that if someone objects to their child’s chosen partner on the grounds that the union would “defile their race’s purity”, this is racism, but that if the motive is “to preserve the vitality” of their ethnic group, this is “group-interested behaviour”. (Got that, everyone? Purity bad, vitality good.) EK seems to wish to help himself to the genuine issues faced by groups which are so small as to be in danger of extinction; he manages it by blurring the difference between genuinely preserving an ethnic group from extinction and preserving its “vitality”, or believing one is doing so. But the threat to the survival of Zoroastrianism is a reality, not merely something that becomes real by being acted on. If you act as if being English is ‘a thing’, you’re creating the social reality of being English. If you act as if the English are under threat of extinction, you’re creating social reality based on assumptions which you know to be false – in other words, you’re acting in bad faith.

At the end of the report we still have no clue as to why EK believes that ‘racial self-interest’ is a valid model, to the point that people who fail to believe in it can be labelled as biased and irrational. It’s clearly not because he believes that discrete human ‘races’ actually exist, in the sense that distinguishable noble gases or species of lizard exist. Certainly, many people believe in and identify with ethnic groups (defined in a variety of different ways). And certainly, a lot of people believe that ethnic groups have interests – at least, that their ethnic group does – and that the pursuit of these interests is entirely distinct from racism and should not be given such a pejorative label. But it’s not the role of the social scientist to give scientific credibility to widely-held errors – least of all errors as dangerous as this one is.

Next: but what about multiculturalism, eh?

You’ve got ventriloquists

My previous post is now approaching 3,000 reads; it’s now the best-read post in this blog’s history, passing the previous record-holder – which was (bizarrely) my annotated “There There, My Dear”.

I’m pleased with the impact the post has had and very pleased with its reception (I’ll write about some critical responses in another post), but since I wrote it I’ve felt that more was needed. The post was a line-by-line fisking of David Goodhart’s column, following the twists, feints and occasional leaps of the argument, so it wasn’t a very systematic presentation of my disagreement with his and Eric Kaufmann’s ideas. I hadn’t read the whole of EK’s report when I wrote it; I’ve now made good that omission, which in turn has prompted further reflections. Also, DG complained about the post’s facetiousness, which is fair enough; I was trying to raise a smile quite a lot of the time, if only to keep the anger at bay.

So this and the next couple of posts will be devoted to my considered, and reasonably straight-faced, thoughts on this whole ‘racial self-interest’ thing. First, let’s talk about the vexed issue of racism and how to define it. Here’s the OED definition, one more time:

A belief that one’s own racial or ethnic group is superior, or that other such groups represent a threat to one’s cultural identity, racial integrity, or economic well-being; (also) a belief that the members of different racial or ethnic groups possess specific characteristics, abilities, or qualities, which can be compared and evaluated. Hence: prejudice, discrimination, or antagonism directed against people of other racial or ethnic groups (or, more widely, of other nationalities), esp. based on such beliefs.

Needless to say, this isn’t the definition DG and EK prefer; on Twitter, DG ridiculed my reliance on ‘dictionary definitions’ – which is fairly rich coming from somebody who’d relied on a definition plucked out of the air. For DG the ‘normal definition’ of racism is “irrational hatred, fear or contempt for another group”. EK, in the project report, quotes DG (it’s a small world) hypothesising “someone who identifies loosely with their own ethnic group … [and] wishes to live in an area where the group is predominant”; this person, however, “holds no negative views of other groups”, and as such we are invited to consider him or her not to be racist. EK for his part notes that different people do in fact define racism differently – although “most agree that someone who does not want to live next to a person of a different race is racist” – and offers to resolve the problem by coming up with a narrower, core definition on which we can all agree. In his words,

the central question concerns motivation. Do [people who want to reduce immigration] fear, hate or look down upon those of other ethnic backgrounds? If the answer is yes, they are racist by any definition of the term. Or is it the case that immigration skeptics are majority ethnic partisans who are … seeking to maximise the demographic advantage of their group[?]

And in this case, again, we are invited to consider that these people are not racists.

Now, you’ll have noted the absence from the OED definition of any reference to fear, hatred or contempt, so central to both EK’s and DG’s version of the term (DG’s formulation in fact specifies irrational hatred, etc, implying that in some situations he might not even consider those negative emotions to rise to the level of racism). So how can this definition be valid? Let’s suppose that you are one of our putative non-racists, feeling no animus towards any other group but identifying with your own group, wishing to maximise its demographic advantage and preferring to live in an area where the group is predominant. Let’s suppose you live in a street with nineteen houses, ten of them (your own included) occupied by people who identify with the same ethnic group as you – White British, Bosnian Serb, Loyalist, Hutu, whatever it might be. Now suppose that one of those ten families moves out suddenly – trading up to the outer suburbs, relocating for a job in another town, whatever – and the house is bought by a family from the other group. They’re perfectly nice people – you’ve got nothing against them as individuals; the thought of hating or fearing them personally has never crossed your mind – but they’re not from your group, and that matters to you; you want to maximise your group’s demographic advantage, and to live in an area where your group predominates, and while their group has the majority in your street that isn’t possible. You hear on the grapevine that the location is really convenient for them, the house is the house of their dreams and they got a really good deal on it; you’re happy for them, really you are, but still.

Now suppose that your street is a gated community, and buying a house there isn’t just a matter of putting the money down: the residents’ committee have to agree on any newcomer. Or suppose that they’ve got the house fair and square, but you hear rumours that they’re not really happy there and they’re thinking of moving out – they hadn’t expected their new neighbours to throw so many loud parties. Decision time: if you’re going to act on your preference for a community numerically dominated by your group, your course of action is clear. You regretfully vote against the newcomers in the residents’ committee; you find the first excuse to throw the loudest and longest party you can manage. Let’s face it, the new family was never going to fit in – it’s a kindness, really, to let them find out sooner rather than later…

I respectfully put it to DG, EK and their co-thinkers that, from the point of view of the newcomers, it doesn’t make much difference whether you consciously hate them or not. There is very little difference between being coerced into giving up something valuable by people who genuinely hate you, and being coerced into giving up something valuable by people who just don’t want you around. In any case, hatred is as hatred does: if somebody denied you the house of your dreams just because they didn’t like the look of you, I think you could be excused for feeling that they did in fact hate and/or look down on you. In point of fact, if the history of ghettoisation and ethnic cleansing tells us anything, it’s that terrible things can be done by people who don’t consciously hate or fear anyone, but just think it’d be better all round if those people were somewhere out of sight.

It could be argued, conversely, that this is all a dreadful misrepresentation – when we talk about wanting to maximise demographic advantage we’re not actually talking about people who would do nasty things like veto new residents on racial grounds. But if we’re not talking about that, what on earth are we talking about? I may have a deep-seated yearning to surround myself with fans of Cannon and Ball (no ironists or timewasters please), but if I never act on it in any way it’s not of any interest to anyone. We’re surely talking about beliefs that people are prepared to act on – or that they genuinely want politicians to act on on their behalf. That being the case, the difference between being an ‘ethnic partisan’ and ‘irrational hatred, fear or contempt for another group’ is vanishingly small.

DG believes this is all a terrible mistake, tactically as well as normatively: “To describe as racist what many ordinary citizens regard as reasonable anxieties about rapid change is simply wrong, and a cause of great resentment”. EK: “Real racism exists and is dangerous. All the more reason to refine the term, using it precisely rather than permitting it to be stretched by political entrepreneurs”. Both seem to be backed up by a former Labour voter, quoted by US academic Justin Gest: “I think the anti-racists have made it worse. They look for trouble. They construe everything as racist.” Labelling people’s views as racist both alienates those people and makes them less sensitive to the actual danger of racism; instead, we should keep our definitional powder dry, abandoning the OED definition for the higher ground of a hatred-based definition. DG again: “The point is precisely to cordon off racism as far as possible into a place where everyone can recognise it and reject it, and then place linguistic and intellectual barriers between it and other forms of thought and behaviour that may involve race but are not racist”. Or rather, to relocate the linguistic and intellectual barriers which make racism taboo, putting some of the forms of thought and behaviour currently regarded as racism outside them.

There are two arguments here, both of them fairly confused. Whether ordinary citizens regard their views as ‘reasonable anxieties’ has no bearing on whether or not those views are in fact racist. (And let’s face it, most people have always regarded their own views as reasonable.) Calling their views racist may cause great resentment, but that doesn’t mean we shouldn’t do it (although it may call for a degree of tact). It certainly doesn’t mean that we should redefine racism so as not to offend anyone(!). DG argues both that racism has no intrinsic meaning (but that we should redefine it to exclude anything that ‘many ordinary citizens’ currently think), and that it has an intrinsic meaning which is much narrower than its current usage. EK for his part argues that the current definition has been deliberately stretched out of shape, apparently for partisan advantage, and that this over-extended definition tends to discredit the whole concept (although in that case it’s not clear where the partisan advantage is coming from).

But the whole argument’s moot, given that – as we’ve seen – there is no significant distinction between the broad and narrow definitions. To stop somebody getting what they want, not because it directly benefits you but because of who they are, is to treat that person hatefully and contemptuously. Whether you’re cackling evilly while you do it, or mentally reassuring yourself that you’re acting for the greater good, is not the deciding factor; in fact it’s a very trivial factor, of little interest to anyone but you.

As for the “anti-racists make it worse” argument, I think we should call its bluff – particularly bearing in mind that the “former Labour voter” quoted had subsequently transferred her loyalties to the BNP and then to UKIP, and that Gest also recorded her making comments such as

there were dozens of Romanian women with children, and it’s clear they had been on the nick. Vile people, Romanians. Then you walk outside, and it’s so loud with all the halal shops and rubbish in the streets. We look like a suburb of Nairobi.

Are people really being alienated by anti-racists insisting on labelling harmless traditional preferences and turns of phrase as ‘racist’? Or is it just a case of people expressing racist views, being told that those views are racist and being – or acting – mortally offended?

Next: ‘racial self-interest’ and how to ask a silly question.

Ouster!

‘Twas the voice of the Wanderer, I heard her exclaim,
You have weaned me too soon, you must nurse me again
– Stevie Smith

I’ve been following the developing saga of Article 50 through a variety of sources – notably the UK Constitutional Law Association blog, Mark Elliott’s Public Law for Everyone, and the invaluable commentary on Twitter from Schona Jolly, Jo Maugham, Rupert Myers and others. (Exeter! Who’d have thought it?) For what it’s worth I’m inclined to think that Mark Elliott and Hayley Hooper‘s reading of the constitutional position is correct – that the UK’s EU membership is ultimately a matter of treaties concluded between governments, and that any individual rights arising from it were available to be applied from the moment membership was agreed, but were not (and could not be) applied until they had been brought into domestic law by Parliament. This being the case, if membership were to cease, the applicability of those rights would remain in law until such point as the European Communities Act was repealed, but it could have no effect, as the rights would no longer be available. To put it another way, any invocation of a right – or any other legal provision – which exists as a function of Britain’s membership of the EU must implicitly be conditional on EU membership subsisting at the time the invocation is made; to say otherwise would be to say that all EU-based legislation must be repealed before Britain could leave the EU, a proposition which (as far as I’m aware) nobody has advanced. This being the case, it must be possible for EU membership to cease and for EU-derived rights subsequently to be invoked (unsuccessfully, of course).

If the existence of EU-derived rights is no bar to leaving the EU by executive decision, neither is the principle of parliamentary democracy. It is true that the peculiar mechanism of Article 50 – with its inexorable two-year time limit – carries the risk of truncating Britain’s EU membership without any kind of Parliamentary agreement or even consultation, but this is only an idiosyncratic example of a much broader principle: it is governments, not Parliaments, that make treaties and dissolve treaties. Nor does the executive require Parliamentary approval for the making of treaties (as distinct from the enactment of those treaties’ effects into domestic law). Not only could the government have triggered Article 50 the morning after the referendum, as David Cameron originally suggested that his government would; in purely legal terms, Article 50 could have been triggered at any time, including before or even during the referendum campaign. This would certainly have been politically unwise, but it would have been within the competence of the executive; the “constitutional requirements” referred to in the text of Article 50 are undefined, and it would be decidedly courageous to argue that the British constitution requires respect for a specific referendum result. In this perspective, it could even be argued that the current appeal rests on a category error: the EU-derived rights which are at issue are not being disapplied in British law but extinguished at source, and there is – as a matter of constitutional principle – very little that Parliament can properly say about it. As a firm – not to say terrified – opponent of Brexit I don’t take any pleasure in this; nevertheless, it seems to me that this is where the law leads us. The current appeal, for me, is an eminently political case – and one which I strongly support on political grounds – but argued on legal grounds which are dismayingly weak. But we shall have to see what the SC makes of it. (I suspect that the interventions of the Scottish and NI governments may end up being a stronger part of the appellants’ case than their original argument.)

For now, here’s an argument that occurred to me recently, and which I don’t think I’ve seen anywhere else (although I admit I’m not quite up to date with the UKCLA blog); it suggests that, despite the constitutional argument advanced above, the primacy of Parliament may still have a role to play.

Consider the Alternative Vote referendum of 2011. (For anyone in need of a spare rabbit hole, my thoughts on AV are here, and some thoughts on why the referendum was lost are here and here. Note appearance of Matthew Elliott and Daniel Hannan.) It’s commonly acknowledged that the AV referendum, if passed, would have been legally binding in a way that the EU referendum wasn’t; while the European Union Referendum Act 2015 simply enabled the public to express a preference (which we were informally assured the government would subsequently implement), the Parliamentary Voting System and Constituencies Act 2011 actually legislated to introduce AV, with a conditional clause providing that, when the result of the referendum was known, the relevant provisions should either be brought into force or repealed by ministerial order. If the referendum had passed, AV would have been introduced by the executive, without any further parliamentary scrutiny: Parliament had voted (albeit with substantial opposition) for a referendum result to have the power to force the executive’s hand in this specific way.

But there is nothing in the 2011 Act which mandates that the ministerial order should be made immediately, or in any specific time frame; it would have been possible for the government to drag its feet, even to the point where it was (regrettably) no longer possible to introduce AV in time for the next general election. More to the point, nothing in the 2011 Act precluded a future repeal. Even if we assume that the referendum result would have bound the government of the day to implement AV – and to refrain from taking steps to repeal it – the result would have placed no such obligation on individual MPs; it would have been entirely possible for an MP (of any party) to introduce an Alternative Vote (Repeal) Bill, which could then go through the Commons on a simple majority vote. (Anyone who doesn’t think that electoral reforms can be made and then reversed hasn’t been paying attention to Italian politics.) The point here is the obverse of the principle with which I started. Governments make treaties, but Acts of Parliament are made by Parliament – and what Parliament makes, Parliament can unmake.

The constitutional significance of the use of a referendum, in this perspective, is very limited. The 2011 Act specified that a referendum should be held and that its result should determine whether the Act’s AV provisions were brought into force or repealed. The AV referendum itself was thus an event within a process fully specified, and circumscribed, by an Act of Parliament – an Act like any other, available to be amended or repealed by subsequent Acts. Certainly the referendum result was binding on the government, but it was binding in a very specific way, set out in detail within a Bill which was the subject of parliamentary debate and scrutiny. The referendum provisions did not determine the detailed wording of the Act, still less permit the executive to disregard it; they simply modified the procedure for implementing the Act to incorporate two alternative paths and an external ‘trigger’ event to determine the choice between them.

So there is nothing about the use of a referendum which changes the rules of the game, when it comes to legislation made in Parliament. Normally, a Bill is put before Parliament, debated and voted on, and – if not voted down – becomes an Act of Parliament and brings about changes to the law. All of this, including contested votes in Parliament, was true of the 2011 Act; the only difference was that when that Act changed the law, it did so subject to a choice between two possible changes (both specified in detail), that choice being determined by the result of a referendum. There was nothing in the whole process to challenge the primacy of Parliament: the British people chose, but they chose from two alternatives both of which had been minutely specified in advance, and both of which had gained the approval of Parliament.

But this is not the situation we’re currently facing. What about the situation where a referendum result is addressed, in effect, not to Parliament but to the executive – and where what is at issue is not domestic law but an international treaty? Before exploring this scenario, it’s worth recalling that the British system of democratic representation is parliamentary all the way down. When we talk of ‘the government’ taking action, we’re generally talking about action being taken by or on behalf of the Prime Minister – which is to say, the member of parliament who last formed a government, on the basis that she or he was best able to command a majority in the House of Commons. In countries with an elected Head of State, Presidents may have their own legitimacy and exert power in their own right, even to the point of being involved in government formation. It’s impossible to imagine Britain having a ‘non-party’ government – as Italy has done more than once – let alone such a government drawing substantial legitimacy from having been approved by the Queen. Government ministers – even the Prime Minister – are MPs like any other, and they can be held to account by their fellow MPs in Parliament. The executive is whatever remains when the domestic politics are stripped out: the Prime Minister and other key ministers acting on behalf of the country, plus the civil service supporting them. But ‘acting’ is the operative word: no Prime Minister ever ceases to be an MP and a member of a party, and the call of partisan politics can never be entirely silenced. (Winston Churchill, perhaps more than any other Prime Minister, encapsulates our contemporary idea of a Prime Minister acting on behalf of the country as a whole – but it was he who said, less than a month after VE Day, that a Labour government would inevitably bring in “some form of Gestapo”.)

It follows that, while referendums can make demands of the executive, they can only legitimately make a certain kind of demand – which is to say, demands with no possible ambiguity; demands specified to such a degree that nothing is required of ‘the government’ but to turn up and sign on the dotted line. As a rule of thumb, if the action being demanded could be carried out by a senior civil servant, then a demand is being made on the executive. It’s also worth remembering where these demands will have come from. In some countries – Italy again springs to mind – referendums have an independent democratic function and can be initiated at the grassroots level; once a certain level of support is reached, the referendum goes ahead with binding effect. (It makes the Number 10 ‘petitions’ site look a bit feeble.) In Britain, referendums must be backed by specific legislation, which – of course – emanates from Parliament. And if the legislation setting up a referendum is faulty, it’s up to Parliament to put it right.

So, there’s a difference between demands made to Parliament and demands made to the executive. As we saw earlier, if the executive signs up to the UN Convention On Undersized Oily Fish there is nothing, constitutionally, for Parliament to say about it. Equally, if a referendum on whether Britain should remain bound by the UN Convention On Undersized Oily Fish gave a majority for Leave, parliamentary debate wouldn’t come into it; the relevant junior minister or senior civil servant would just have to go and un-sign. But there’s also a difference between the executive and what we think of as ‘the government’. The government, in this sense, generally refers to the PM and Cabinet – a group of elected MPs. Constitutionally, however, MPs are just that – members of Parliament, who debate with and are held to account by their fellow members of Parliament. A demand to the executive which cannot be implemented by the executive – which has to be debated, developed, amended and refined by MPs before it can be actioned – is not a demand to the executive at all. It’s impossible to imagine a referendum on “leaving that treaty we signed on that Tuesday that time, you know, the one with the blue binding, or maybe dark green” – this wording would obviously leave far too much scope for government ministers to identify a treaty of their own choice, effectively frustrating the will of the people (or most of them) while purporting to honour it. But a referendum with precise and specific demands could be equally badly formed, if those demands couldn’t be implemented without political debate and extensive planning – say, “implement a flat rate of income tax and balance the budget”. In effect if not in form, this would also be a demand for ‘the government’, not for the executive: a demand, in other words, for MPs to work out how the stated demand could be met, consistent with other government commitments, and then to meet it. But if something is a matter for MPs and not for the executive, then it is a matter for Parliament. If Parliament is to be excluded, the demand needs to be phrased in a way that obviates the need for debate.

The point about the EU referendum is that it was a lot more like the ‘flat rate tax’ example than the ‘oily fish’ one. What distinguishes the result of the EU referendum from that of the AV referendum is not that the latter was legally binding and the former advisory; both bound the government to a course of action. (Although this binding should not be understood to be permanent; governments can and do change course, as we’ve seen – and, in any case, a government cannot bind its successors.) The key difference between the two is that the course of action to which the AV referendum bound the government was fully and precisely specified, leaving no more work for the legislature to do. The course of action to which the government was bound by the EU referendum is almost entirely unspecified. The referendum question, and in particular the 2015 Act, was badly drawn up – presumably because nobody responsible, the then Prime Minister included, imagined that ‘Leave’ would win. As such, the referendum was, almost literally, half-baked; it was released on the world in an unfinished state, and should go back to Parliament to be specified in the appropriate level of detail. This being impossible, it should be recognised that it is for Parliament to define ‘Brexit’, to plan out what will be involved in leaving the EU, and to publicise its benefits and costs.

At present, far from having its hands bound by the result, the government enjoys an unparallelled degree of freedom to define the result how it pleases, or not to define it at all – all the while refusing to grant Parliament any substantive oversight. Constitutionally, this is a monstrous power-grab – not by ‘the executive’ but by a group of MPs – and it should not be tolerated. Parliament needs to have a say on the referendum result, not because leaving the EU will mean that certain rights are forfeit, and not because the referendum was advisory, but simply because the referendum was a badly-formed question. It was posed in such a way that the implications of a ‘Leave’ victory, and the precise nature of a ‘Leave’ settlement, could only be worked out after the fact, in a political debate among MPs. But if such a debate is to happen – and it is happening already – then it must happen in Parliament, not between the Prime Minister and her trusties. We should not permit the ouster of Parliament.

Instructions for dancing (1)

I don’t think the Appeal Court’s ruling last week – on whether Labour’s NEC had the power to set a retroactive ‘freeze date’ for eligibility to vote in the leadership election, disenfranchising some 130,000 people who are otherwise members in good standing – was wrong in law, as Jeremy Corbyn suggested. But, by the same token, I don’t think we can say it’s definitely wrong to say it was wrong in law. (Bear with me.) There is no law that can only ever be read one way, no case that could only ever have been decided one way. The fact that the Appeal Court reversed the previous week’s court ruling isn’t a demonstration of corruption or incompetence, but one example of a perfectly normal phenomenon in law: one reading of a legal question being superseded by another reading.

This isn’t to say that judges are free to decide cases, and interpret statute, any way that they please; on the contrary, legal rulings – particularly at Appeal Court level – need to be, and are, justified by closely-reasoned argument. When one court’s decision gets reversed by another, it’s very rarely a matter of Judge B announcing “Judge A was wrong, I’m right”. Rather, the higher court examines the argument in which the first judge’s ruling is embedded and puts forward a ruling grounded in a better argument – better in the sense of greater logical coherence or comprehensiveness, greater appropriateness to the situation at hand, better fit to statute and existing precedent, lesser probability of creating problems in future cases, and so on. Sometimes the greater appropriateness/coherence/etc of the higher court’s ruling is glaring and unarguable; sometimes it’s more debatable, and in these cases the original ruling may eventually be reinstated – either through appeal to a yet higher court or, in the longer term, by the precedent set by the appeal being distinguished (i.e. disregarded) so consistently that it falls into disuse.

The key point here is that the question “is this ruling correct?” both does and doesn’t have an answer. An Appeal Court ruling gives a definitive statement of how the law should be interpreted, together with supporting arguments; the Appeal Court ruling is the law (unless it’s reversed by the Supreme Court), and the answer to the question of whether it’s correct has to be Yes (unless the AC has really screwed up). At the same time, the arguments supporting the AC’s judgment give one particular reading of the body of materials which the court had to work with, together with reasons for adopting that reading. It’s possible for a reasonable person to hold that, although the AC has ruled that reading A applies and consequently the law is X, it would have been preferable for the AC to choose reading B, in which case the law would now have been Y. And, as I’ve noted, it’s even possible for the law-making power of that particular ruling to be, in effect, eroded over time, if the judgments of future Appeal Court hearings concur in preferring reading B and law Y.

All this is by way of saying that the Appeal Court judgment in the Labour Party case (Evangelou v McNicol) doesn’t (in my view) correct anything unproblematically identifiable as an error in the original ruling; what it does is propose a different reading of Labour Party rules and – more importantly – a different way of reading the rules. The key passages are in clause 4.II of the rules, headed Procedural rules for elections for national officers of the Party, and specifically sub-clauses 4.II.1.A and 4.II.2.C.vii (!), which respectively read as follows:

The following procedures provide a rules framework which, unless varied by the consent of the NEC, shall be followed when conducting elections for Party officers. The NEC will also issue procedural guidelines on nominations, timetable, codes of conduct for candidates and other matters relating to the conduct of these elections.

and

The precise eligibility criteria shall be defined by the National Executive Committee and set out in procedural guidelines and in each annual report to conference.

A submission from the NEC to the appeal drew attention to 4.II.1.A and the NEC’s power to ‘vary’ whatever is written down in the rules. The claimants objected on the grounds, roughly speaking, that this had not been brought forward before, and their case might have been different if it had. The AC agreed, but with one significant qualification:

In our view, the only relevance of Chapter 4, clause II(1) is an aid to the construction of other powers and requirements in the Rule Book, which has to be construed as a whole.

This brings us to the two different ways of reading the rules which were put forward in the earlier ruling and the AC ruling. The difference hinges on how much importance is given to what’s not in the text – shared assumptions, common knowledge, established practice and so on. One approach – what you might call a purposive approach – would start from common knowledge about what the rules are for and what kind of association the Labour Party is, and skate generously over lacunae in the text. So, we know that the party is a democratic organisation which elects its leaders, and we know that the party’s stated policy is to engage all members in activity and participation in the party’s structures; does it matter that the rules don’t explicitly say that all members get a vote in leadership elections? Similarly, we know that there needs to be a date beyond which new members can’t join the party and expect to get a vote – even if you give a vote to members who join on the day of the election, you need to specify that – and we know that it’s highly unusual, based on past practice, to set a ‘freeze date’ as much as six months in the past: does it matter that the rules don’t explicitly say that freeze dates shouldn’t be set six months in the past?

A purposive approach would say ‘no’ to both of these questions; interpreting the rules, on this approach, is partly a matter of filling in the blanks by referring to the purposes of the rules, the purpose of the organisation and the way things generally work in practice. This is, broadly speaking, the line taken by the original court ruling. It’s worth saying, incidentally, that although a purposive approach in this case favoured the claimants (and by extension Corbyn), there’s nothing inherently radical about taking an approach like this; it could equally well be argued that the purpose of marriage is to support procreation, or that the purpose of trade unions is to promote industrial harmony, leading potentially to highly conservative readings of the relevant laws.

The alternative approach forswears any of this assuming and skating-over; sticking with the letter of the text, it arrives – where the text allows – at results which are clear, definite and hard to challenge. The Appeal Court took a textualist approach in its ruling, albeit a modified, and arguably incoherent, textualist approach (I’ll come back to this). Where the freeze date is concerned, the textualist approach can close the case by asking and answering two questions: Yes, the rules do provide for the imposition of a freeze date; No, the rules don’t state that a freeze date cannot be six months in the past; The End. On the question of whether all members should presumptively get a vote, the AC is unyielding: the rules don’t say that anywhere, but they do say that the NEC has the responsibility of defining “precise eligibility criteria”. A purposive reading would lean heavily on that word ‘precise’ – doesn’t that imply that broad eligibility criteria already exist and are known, even if they aren’t necessarily written down? The textualist reading – and the AC – says that the use of an adjective to qualify X, when X is named, isn’t nearly enough evidence for inferring the existence of a broader, unnamed form of X; that would be like saying that a shop sign advertising ‘high class menswear’ tells you that you can get lower-grade clothing further down the road.

So is this an open and shut case? Not quite. Remember that legal arguments are justified in part on the basis of their potential for creating clear and appropriate precedents; also, remember that I argued that the AC took a modified textualist approach. The key point here is the use they made of that clause 4.II.1. Discussing the rule book at the time of the challenge to Corbyn’s automatic inclusion on the ballot, Carl Gardner drew attention to this clause, pointing out that it effectively frees the NEC from the restraints laid down by its own rules: “The NEC could vary the procedure however it liked, so long as it was reasonable.” This is the ‘power to vary’ which the NEC brought forward – rather late in the day – in this case. There is – potentially at least – an argument here about whether this power to vary the rules simply gives the NEC the power to decide whatever it wishes and ignore the rules, or whether it only empowers the NEC to vary the rules in an individual case having stated that it is doing so; the former reading would be so broad as to make the rules meaningless, but the latter wouldn’t cover anything the NEC has done in this case.

But the point is moot; as we’ve also seen, the AC ruled that this clause would not form part of its decision – except insofar as it was “an aid to the construction of other powers and requirements in the Rule Book”. Now, that’s quite a big ‘except’. What it says is that the entire Rule Book is read from the starting point that the party has both rules and a rule-making body, and the rule-making body can legitimately step in any time the rules need amending or seem to be giving the wrong result. The gaps in the rules as written – gaps which any textualist reading will inevitably find – are plugged by reading the explicit power to vary as conferring an implicit, general power to vary, as and when necessary. In effect, it’s a textualist approach within an overriding purposive approach, and as such arguably incoherent – after all, do the rules say that 4.II.1 is an aid to the construction of other powers and requirements, or is it just one sub-clause among others? A thorough-going textualist approach would surely choose the latter.

The result, in the words of Corbyn’s campaign, is as “a ‘make it up as you go along’ rule”; I wouldn’t go that far, but this reading would certainly make it very hard to win any case concerning the rules against the NEC. Some will welcome this ruling for precisely that reason – the courts shouldn’t be getting involved in the internal workings of political parties; the NEC is an internal party body, and anything that makes it less likely that members will take it into their heads to drag it through the courts is to be welcomed. But I think they should be careful what they wish for. If the NEC is the rule-making body, and if the rule-making body has the power to vary the rules, what limits are there on the power of the NEC? The AC’s ruling addresses this question in terms of the discretion of decision-making bodies and the limits to such discretion. In the words of a 2008 case (Socimer):

a decision-maker’s discretion will be limited, as a matter of necessary implication, by concepts of honesty, good faith, and genuineness, and the need for the absence of arbitrariness, capriciousness, perversity and irrationality

Wednesbury [un]reasonableness is also invoked, if anyone was worried it wouldn’t get a look-in.

Now, these are very broad limits. Restrictions on eligibility to vote are arbitrary if there’s no good reason for the line to be drawn in one place rather than another; they’re capricious if the line is drawn chaotically or at random; they’re perverse if their disadvantages outweigh their benefits; they’re irrational if they have no rational justification; and they’re Wednesbury unreasonable if they are so unreasonable that no reasonable person acting reasonably could have chosen them. But that still leaves plenty of scope. As we can see, a six-month retrospective freeze date doesn’t qualify under any of these headings; how about twelve months? Or how about defining eligibility to vote in terms of attendance at party meetings? contributions to party funds? membership of an approved party organisation (e.g. Momentum)?

I think it’s a very problematic ruling, in short, and one which – given a Left-dominated NEC – may well come back to bite the very people who are now celebrating it. If they are celebrating it.

Next: what was going to be parts 2 and 3 of this post. Let’s face it, this is quite long enough as it is.

Counter-terrorism and counter-law

Quick one: here are the title, abstract and references of a paper I’ve just submitted for publication. (Fuller, Hegel and Bhaskar, together at last!)

Terrorism: that obscure object of counter-law

Contemporary counter-terrorist legislation is characterised by inchoate, preparatory and possession offences, which make it possible to convict individuals without proving that harmful acts have taken place. Following Richard Ericson, this tendency is analysed as a form of ‘counter-law’: law making designed to circumvent legal principles and erode the rule of law. It is argued that contemporary counter-law, unlike the Schmittian ‘state of exception’ model to which it is often related, is a purely conservative tendency, routing around the law to preserve order. The paper calls for counter-law tendencies to be identified, justified where possible and, if not justifiable, reversed.

Agamben, G. 2005. State of Exception. Chicago: University of Chicago Press.
Bhaskar, R. [1975] 2008. A Realist Theory of Science. Abingdon: Routledge.
Cameron, D. 2011. Statement to House of Commons. HC Deb 3 May 2011 cc 461, 473.
Cameron, D. 2013. Statement to House of Commons. HC Deb 3 June 2013 cc 1235, 1245.
Carter, H. 2011. “Jihad Recruiters Jailed After Anti-Terror Trial”. Guardian 9 September
Cole, D. 2001. “‘An Unqualified Human Good’: E.P. Thompson and the Rule of Law”. Journal of Law and Society 28(2): 177-203.
Crown Prosecution Service 2011. CPS Statement on R V Farooqi and Others.
Crown Prosecution Service 2012. The Counter-Terrorism Division of the CPS: Cases Concluded in 2011.
Dodd, V. 2014. “Soldier Jailed for Making Nailbomb Avoids Terror Charge”. Guardian 28 November.
Edwards, J. [no relation] 2010. “Justice Denied: The Criminal Law and the Ouster of the Courts”. Oxford Journal of Legal Studies 30(4): 725-748.
Elmer-Dewitt, P. 1993. “First Nation in Cyberspace”. TIME International 49.
Ericson, R. 2007a. Crime in an Insecure World. Cambridge: Polity.
Ericson, R. 2007b. “Rules in Policing: Five Perspectives”. Theoretical Criminology 11(3): 367-401.
Fuller, L. 1964. The Morality of Law. New Haven: Yale University Press.
Guinness, S. 2009. “The Universal Soldier”. Dublin Review 36, Autumn.
Hegel, G. W. F. [1820] 1991. Elements of the Philosophy of Right. Cambridge: Cambridge University Press.
Hodgson, J. and Tadros, V. 2009. “How to Make a Terrorist out of Nothing”. Modern Law Review 72(6): 984-1015.
Kostakopoulou, D. 2008. “How to Do Things with Security Post 9/11”. Oxford Journal of Legal Studies 28(2): 317–342.
Schmitt, C. [1922] 2004. Politische Theologie. Berlin: Duncker & Humblot.
Simmonds, N. 2007. Law as a Moral Idea. Oxford: OUP.
Waldron, J. 2008. “The Concept and the Rule of Law”. Georgia Law Review 43(1): 1-61.
Zubrinic, D. 2010. “481 Foreign Volunteers from 35 Countries Defended Croatia in 1991-1995”. Croatian World Network.

When is an extremist not an extremist?

Cross-posted from the blog of the Manchester Centre for Youth Studies, of which I am a member.

When is an extremist not an extremist? If violence is dangerous, is non-violence safe?

Earlier this year, Gavin Bailey and I organised a seminar (with support from the British Society of Criminology North-West) focusing on myths and realities of extremism and counter-extremism. The event was attended by academics from across the region, with lively debate on topics ranging from the “Trojan Horse” affair to the peace process in Northern Ireland. But what we kept coming back to was the government’s Prevent programme, particularly as it affects schools and young people.

Prevent is the counter-terrorist programme that counters extremism at the individual level. The aim is to prevent people from becoming involved in political violence by intervening ‘upstream’, at a point when they are beginning to develop extremist sympathies. Last year the government imposed a ‘Prevent duty’ on schools and many other institutions. This is a duty to “have due regard to the need to prevent people from being drawn into terrorism”; the scope of the duty “includes not just violent extremism but also non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit”. In other words, children and young people are now being monitored – by law – to ensure that they don’t express ‘non-violent extremist’ opinions, and inadvertently give popularity to views that terrorists may be able to exploit. We already have numerous examples of where this can lead: the ten-year-old interviewed by police after he wrote about living in a ‘terrorist house‘, the four-year-old whose mother was threatened with referral to social services after he mispronounced ‘cucumber’ as ‘cooker-bomb‘.

Here’s another story, involving a different kind of radicalisation. Aged 14, P becomes interested in Communism; he reads around a bit and decides that he is a Communist. Over the next couple of years, P develops a fascination with the guerrilla forces who were then fighting US-backed regimes in central America; he even daydreams about going out there himself. A teacher intervenes, but he isn’t discouraged. Wider reading persuades him that Communism isn’t the answer after all – only anarchism will do. He buys anarchist magazines and grows interested in the urban guerrillas operating in Italy and Germany at the time…

How does the story end? I’ll tell you how it ends: P (wannabe Communist, age 14) is now Phil (lecturer at MMU, age none of your business). It ends with P – me – going to university, writing a lot of poetry, getting a girlfriend, graduating, moving to Manchester and getting a job. My teacher’s intervention, incidentally, consisted of telling us it was nice to see a bit of Communism in class, even though he didn’t agree with it himself; everyone moves Right as they get older, he said, so at least some of us would still have somewhere to move to. (Thankyou, Mr Fairman!)

How many ‘P’s are out there now, inspired by jihadism instead of Communism, watching IS videos on Youtube instead of reading anarchist magazines? And how many of them would, left to themselves, leave it all behind them as a natural part of growing up? (My guess is: almost all of them.) Several participants in our seminar argued that Prevent discriminated against young British Muslims, putting thousands of innocent young people under surveillance for no good reason – and with the risk of creating alienation. But there’s a bigger question: should we be monitoring children for signs of extremism at all?

Kids break laws; offending is far more widespread for people in their late teens and early twenties than it is in any comparable age-group. If you think about it, this also tells us that almost all of those offenders grow out of it. There are many reasons for this – physical maturation brings more considered thought processes; leaving the parental shelter of childhood makes rebellion seem less attractive; legal adulthood opens up legitimate opportunities; long-term relationships give people a stake in society. And if this is true of crime – which can have life-changing consequences even for very young offenders – surely it’s all the more true of nebulous things like ‘views which terrorists exploit’ and ‘non-violent extremism’.

So I worry about the effects of Prevent on kids – not just four-year-olds who aren’t even talking about bombs, but teenagers who are.  I’d expect any class of 14-year-olds to contain several kids who would tell me (for example) that the CIA blew up the Twin Towers, a few who had watched IS videos, and at least one who sincerely believed in implementing Shari’a law in the UK – just as I believed in the dictatorship of the proletariat when I was that age. Under the law as it stands, unfortunately, I’d have a legal duty to report every one of them.

Kids should live their teenage years in safety, even (especially?) at school. Prevent is often justified in terms of safeguarding – as if being drawn into terrorism was the same kind of risk as being groomed for abuse – but trying to protect kids from thinking the wrong thoughts strikes me as precisely the wrong way to go. Young people need to be able to experiment – make a bit of noise, flare out, mess up and try something different. And, for some kids, political extremism is a great way to experiment – just as it was in my day.

Affordable reading

We interrupt your scheduled rants and grumbles for a quick commercial break.

This summer, all Manchester University Press titles available at the Manchester University Press site have 50% off the price. And ‘all’ includes this one.

Sympathetic Magic ‘May Be Real After All’ – Author’s Shock Claim

Normally this is priced at £65 – a price which will either make you think “huh, hardback pricing” or “sixty-what now?”, depending how familiar you are with academic publishing. For now, it’s £32.50. Which is interesting. I’m convinced there’s an audience for this stuff – not an audience like Gillian Flynn has an audience, but an audience nonetheless. There are people out there who are curious about Autonomia Operaia, the Metropolitan Indians, the “can’t pay? won’t pay!” period, the Red Brigades, all the (many) armed groups who weren’t the Red Brigades, and the relationships between all these groups and movements and the mainstream Left. My book has something to say about all of this, and I’ve always thought that an affordable paperback edition could find its readers. We haven’t got a paperback, but what we have got – for the next couple of months – is a hardback edition going for £30-ish. I think that’s pretty affordable; it’s not as affordable as a vote in the Labour leadership election, say, but it’s certainly a lot more affordable than it was.

So: here’s some more about my book, including links to some reviews (“a serious piece of work that deserves a much wider readership” – Red Pepper).

Here’s the link to the page where you can buy it: ‘More Work! Less Pay!’.

Here’s the link to Manchester University Press.

And here’s the code to enter at the checkout: Summer16.

I don’t know how long this promotion goes on – the site doesn’t specify. This offer ends at the end of August 2016 – if you’re reading this in September or later, I’m afraid you’ve missed out. If not – and if you’re curious & have the odd thirty quid to spare – you might as well get in there now.

NB This is advertising – I will be paid something for every copy sold. But at this rate the royalty will, basically, be buttons, and I won’t see any of it unless/until enough is payable to make it worth MUP’s while to write a cheque. My main motivation is, quite honestly, to get the ideas out there.

Not writing

“I haven’t written a thing since last October!”

The thought came to me with an alarm-clock-like jolt: – yes, it really is that time (of year)! And what have I been doing?

When I was insecurely under-employed, I shared an office for a while with a rather senior but semi-retired Law lecturer. When lecturing ended after Easter, he was off, generally in a camper van: “I aim to spend the dark months teaching and then spend the light months travelling”, he told me once. If that were me, I thought at the time, I’d at least spend the light months writing…

Here we are in the middle of June – pretty light – and I haven’t written a single damn thing since October. What have I been doing all this time? Teaching, obviously – this year just gone, I delivered all the teaching (and assessment) on two optional third-year units, along with sizeable chunks of a Foundation Year unit and an MA unit. Then there was marking, which remains the single most intellectually exhausting task I’ve ever carried out in my life. But none of that’s writing.

At least, it’s not writing writing. But some of it does involve writing, in the old-fashioned sense of forming words out of letters in a visual medium. Here’s a rough list:

Review of a new edition of a textbook: 1,000 words
Student references: 1,000
Small grant bid (successful): 2,000
PG Cert ‘reflective writing’ assignments: 8,000
Contribution to large grant bid (unsuccessful): 8,000
Assessment feedback: 144 essays + 40 exams + 6 dissertations = ~20,000 words
Emails: 1200 emails = ~60,000 words

Fair amount of writing involved in assessment, it turns out. (Not many words per essay, but you do have to choose the right ones.) And those emails! Never mind the constant drizzle of incoming email (28 yesterday, none of them from students); I’ve sent 1200 emails in those eight months. That’s 150 emails per month – five a day, seven days a week. For comparison I totted up the number of emails I’d sent from my personal account; the total was 150 for the entire eight-month period.

So it turns out that I have in fact been ‘active’, as they say, when it comes to putting words on screen (and in some cases even on paper). I’ve written around 100,000 words since last October – twelve academic papers’ worth. It’s just that three-fifths of them have been in emails – and most of the rest were ephemeral too.

Oh well, back to work.

Mostly harmless

At the LRB blog, Bernard Porter reminisces:

When I went up to Cambridge in October 1960, I found myself, for the first time, in the company of public schoolboys. … They were all very pleasant to me, despite my ‘Estuary’ accent and the fact that I had lived at home during my school years, and I made close friends with a number of them. But there was always this barrier – of adolescent experience – between us. They knew things that I didn’t (and vice versa? perhaps).

One thing was the proclivities of one of the fellows, the Rev. E. Garth Moore, notorious in public school circles as a sexual predator: they felt they needed to warn me, as a comparatively plebbish ingénu. ‘If Garth invites you to tea in his rooms,’ one of them told me on my first day, ‘don’t go. We know about him. You won’t understand.’ I think they were trying to protect me from embarrassment more than anything. It was kind of them. Anyhow, I did get the invitation, and politely turned it down.

This prompted a memory which I’ve never written about before. It wasn’t so much submerged, let alone repressed, as ignored; not in a locked cupboard of memory but in plain sight on a neglected shelf. I’ve never told anyone about it, but there’s a lot on those shelves that I’ve never told anyone about – the time the electricity meter broke, the time I nearly didn’t see Douglas Adams, the time we found the funniest line in Shakespeare… As a rule I haven’t told anyone because I didn’t think anyone would be interested. But maybe this one is worth bringing out.

So. Quite soon after I went up to Cambridge in 1979, I received an invitation to breakfast with Dr Pars, one of the college’s two resident retired fellows; the story was that the college had done away with lifetime residence and dining privileges several years earlier, but that Pars and one other don had hung on to theirs and were determined to exercise them to the last (as indeed they did). Dr L.A. Pars – Alan to his friends, ‘Pars’ to everyone else – was 83 at the time.

Pars, anyway, entertained me and another undergraduate to breakfast in his rooms; I gathered on the grapevine that he was working his way through the first year intake. It was a civilised but not particularly comfortable occasion. The other student was a woman – the college had just started admitting women – and Pars seemed very solicitous in pressing food on her (“I do hate it when people die of hunger at my breakfasts”); she was rather posh and was very gracious with him. I remember there was a fruit course, complete with appropriate cutlery; I ate a banana with a knife and fork, which was fun at least. Then there was a second breakfast invitation, for me and another undergraduate (another man this time); he was a third-generation student at the college, and Pars had known his father (and quite possibly his grandfather). This somehow led to a theatre outing for the three of us (Frederic Raphael’s From the Greek). When Pars sent me an invitation to afternoon tea in his rooms – just me this time – I thought things were looking up. The cakes were nice, the tea was good quality and Pars confided that he too preferred China to India; it was all very civilised.

In retrospect it looks very much like a selection process, but nothing of the sort occurred to me at the time. The breakfasts – and the play – were rather a bore, but having a (very) senior don take an interest in one and serve one China tea in his rooms… well, I was on the Left, but I wasn’t immune to this kind of thing; I’d read a bit of Dornford Yates in my youth and always thought it sounded like fun, the fox-hunting apart.

Then I got a letter from Pars, saying that he’d previously sent me an invitation to the Club (or possibly The Club) and been disappointed to have no reply – but, “as an invitation to the Club was not the kind of invitation one refuses”, he would expect me anyway. Date, time, place – it may even have been at the Master’s Lodge – guest of honour so-and-so, dress lounge suit. (I don’t know if the lost invitation was some sort of ploy or if Pars forgot to send it. There’s very little chance of it actually having got lost, en route from one side of the college to the other.)

Now, I’d never heard of The Club – I’ve never heard of it since, come to that – and had no idea what I was letting myself in for. But I thought it sounded appropriately privileged and inner-circle-ish, and I thought I’d give it a go; I was also slightly concerned about the potential ramifications of refusing, given that this was not the kind of invitation one refuses. My main worry was establishing what a lounge suit was, and – once I’d worked that one out – checking that I looked OK in one of the old suits my father had presciently given me before I went up. (I’d had them altered to fit my measurements, which at the time included a 28″ waist. I didn’t get much wear out of them.)

It was all very new and mysterious. I wrote, asking for advice, to a family friend named Keith – the son of a friend of my mother’s, to be precise. He wasn’t a personal friend – he was nine years older, a daunting gap at that age – but he’d graduated from the same college a few years earlier with a degree in archaeology, and had been very helpful when I was about to go up. I wanted to check out what I was getting into, and possibly show off a bit (“been invited to this thing called The Club, whatever that is…”). He replied, “I wouldn’t worry, Pars is pretty harmless these days.” Worry? Pretty harmless these days? I knew what Keith was – what he must be – referring to, but the thought had never crossed my mind until that moment; I hadn’t been worrying, but I was now (pretty harmless, these days?). What kind of ‘Club’ was this?

Keith was living at home at the time, in between research trips centred on shipwrecks, so I was able to ring him and ask what, precisely, he was saying about Pars. He laughed it off – oh, there were stories, you know… I didn’t know. Oh, you know… choirboys running screaming from his room in a state of undress… It’s all a while ago now – I mean, he’s an old man! I should go, it’ll be fine. Talking to Keith – who was a lovely bloke – reassured me greatly, even though he was actually confirming my suspicions. I rang my mother; she was rather brisk, and said that at this stage I was probably going to have to go, but pointed out that if necessary I could always make my excuses and leave.

So I went. It was a piano recital; there was assorted seating dotted around a rather large (and well-lit) room, there were twenty or thirty people, and I think there was wine. Looking around, I could see that the company was mostly male, but not entirely; some of my more lurid fears dropped away. I could also see that everyone else there was in their thirties or over; I was the only student. I didn’t recognise anyone, with one inevitable exception: Pars. He was sitting on a sofa, and patted the cushion for me to sit next to him. The pianist was introduced and began to play – some classical piece that I didn’t recognise. I noticed Pars nodding and tapping his foot to the rhythm of the piece; I thought this was surprisingly uncultured and concluded that he wasn’t really enjoying the music. Then I noticed his hand, which was on my thigh, just above my knee. He let it rest there for a while then squeezed, as if he was assessing the meat on a cow’s hindquarters. Then he patted my knee a couple of times, and left his hand there.

After the recital I made straight for the door. The Club seemed to be a perfectly innocuous cultural society, and perhaps it really was a privilege to be invited; I hadn’t actually been molested as such, either – nothing had happened. All the same, I had had my leg fondled in public – and, what was worse, Pars had effectively shown me off to the assembled company as his latest (potential) conquest. It was a deeply humiliating experience, and I wanted no more of it. Happily, Pars didn’t pursue me – literally or metaphorically – and I never had anything to do with him again.

I wasn’t angry, though, so much as ashamed; the indignity had been forced on me, but it felt as if the resultant shame was all mine. Shame led to guilt and self-reproach – why didn’t I say no? why hadn’t I said no before? why did he pick me – was there something about me? I told my parents and friends about what had happened (I don’t think I said anything to Keith), but the idea of reporting Pars in some way never occurred to me, and if it had I would have dismissed it. After all, what could I accuse him of? What had actually happened, really? No bones broken, eh? And I’d done all right out of it, hadn’t I? Poor old Pars, he’s harmless enough, it’s sad really when you think about it… So people would have said – or so we thought people would say – back in the 1970s. Even writing about it now, my initial impulse was to change names and details, to protect the… well. So hard to think of it as something that he should have been ashamed of, not me; so hard to think of it as something to feel angry about, not guilty.

Dr L.A. Pars – Alan to his friends – died in 1985, aged 89. The saddest part of the story is that he outlived Keith, the maritime archaeologist. Keith died in 1980, aged 29. He’d just surfaced from a dive in a Scottish loch and was standing in shallow water in a ‘hard’, pressurised diving suit, with the helmet off. A freak wave knocked him off his feet, the suit filled up and he couldn’t get back to his feet; he drowned in four feet of water. Although I never knew him well, I still think of Keith from time to time – I’ve never forgotten him and hope I never will. I’ve never forgotten Pars, either, but I live in hope.

 

Many a deed and vow

Getting to the march wasn’t easy. There was a long wait for the bus into town; when it came it stopped at every stop. After three or four stops a small boy, whose family had got on – complete with home-made placards – at the stop after mine, started tugging at his mother’s sleeve and asking urgently, Was that the first stop? Was that the first stop? Mum… Mum, was that the first stop? She tried to ignore him, possibly because (like me) she couldn’t work out what he was asking or why. Ignoring him didn’t help; fortunately, about five minutes later the bus stopped and we all had to get off. I measured the distance we had to walk to get to the march afterwards; it was the best part of a mile.

The route of the march itself was a mile and a half, give or take; it took us about an hour to get round, ‘us’ meaning me and the people I happened to be walking alongside. There was a contingent there from my local Labour Party, which – having just joined – I was hoping to find, but I never saw them. More by luck than judgment I’d ended up towards the head of the march. At one point, feeling a bit exposed out at the front, I stopped and let the march go by for ten minutes or so before rejoining it, but even then I was well up towards the head of the march, relatively speaking. When I decided to knock it off and go home, two hours after I’d first got to the end of the route, there were still people arriving. I stood and watched them for a while, thinking I was seeing the last few stragglers; a knot of people representing the chiropodists’ and podiatrists’ union seemed to be bringing up the very end of the march, which seemed fitting. Then I noticed, a hundred yards behind the podiatrists, a group of a couple of hundred marching under the usual assortment of union and SWP placards, with no indication that they were the last. I gave it up and went for a drink. I don’t think anyone knows how big the march was; I’d be surprised if it was less than 100,000 strong (the police estimated 60,000).

The march itself was orderly and peaceful, whatever else you may have read; things didn’t kick off, nobody got kettled or baton-charged, and hardly anyone even got arrested (there were four arrests – out of 60-100,000 – including one for being drunk and disorderly). It wasn’t a fun march, though; it didn’t have a carnival atmosphere, despite the entertainments laid on along the way (here a performance artist, there a samba band, and at the end of the route an extraordinary band playing a fusion of jazz-funk and traditional folk). This was partly because of the purpose of the march, which was antagonistic: it was a march against austerity and against the Tories, whose conference in the middle of Manchester has caused serious inconvenience to a lot of people (and bear in mind that there hasn’t been an elected Conservative councillor in Manchester since 1996, or a Conservative MP since 1987). The mood was defiant, and not defiant in a playful, “Tubthumping” kind of way – more a matter of defying authority, and defying people who think they’ve won. Pig pictures, slogans and masks abounded; one woman walked alone in a full-face pig mask, carrying a placard saying “I prefer apples”. (Think about it.) And this level of ridicule goes along with the mood of defiance – as if to say, why should we listen to you? The old “they say cutback we say fightback” slogan got an outing near where I was walking; the chanting was a bit feeble, but ‘fightback’ was very much the way people seemed to be feeling. This was particularly evident when we got close enough to the conference centre to make some noise in its general direction. For some people all the noise-making was probably energising, but I have to say I found it all a bit wearing; if I never hear a vuvuzela again I’ll be heartily grateful.

Back in the 80s, I remember the BBC taking notice of the peace movement (then in its second prime) by broadcasting a god-awful drama called “The Big March”. The big march in question was ostensibly a peace march, but what were the real motivations of the shadowy left-wing group organising it, eh? What indeed. In one scene the central character – a sincere but ill-informed peacenik – is marching (on a smaller march) alongside a seasoned veteran who periodically calls out “It’s coming yet!”, to cheers and echoing shouts from his fellow activists. She, the peacenik, naturally asks him what it is that’s coming yet, and what it has to do with getting rid of nuclear weapons. He launches into an explanation of how he and his co-conspirators are working within the peace movement for a much bigger goal: the goal of realising the unfulfilled revolutionary hopes of, er, Robert Burns:

For a’ that, an’ a’ that,
It’s coming yet for a’ that,
That Man to Man, the world o’er,
Shall brothers be for a’ that

Terrifying stuff, I think we can all agree. But probably not written by anyone who’s ever been on a march, and not only because slogans aren’t usually written in code. Perhaps I was just in a particularly disorganised part of the march, but the chants and slogans of my fellow activists were more reminiscent of that kid on the bus: I struggled to hear what they were saying, and then struggled to work out why. (What was that – “whose speech? free speech!”? No, hang on – “whose streets? our streets!”. Well, OK.) It just wasn’t that unified; there wasn’t a single revolutionary message that brought us all together (although I have to admit “Tory scum” was pretty popular).

If we weren’t being ruthlessly welded into a weapon of subversion, we didn’t conform to the opposite stereotype either; we weren’t a lawless rabble (although some of the dancing to that folk-funk band was pretty out there). If you’ve followed reports of the march in the press – never mind Twitter – you’ve probably formed the impression that spitting, egg-throwing and close-range intimidation was very much the order of the day. It wasn’t; these stories are so unrepresentative of the march as to be basically false. It’s like the old ‘black sheep’ joke: don’t say “all left-wing protesters are thugs”, say “in one section of one march there were a number of protesters, who may or may not have been left-wing, one of whom spat on Michael Crick at least once”.

Let’s be clear: there was no great failing in the march that ‘allowed’ those individuals to ‘become the story’. On one hand, what is the march supposed to have failed collectively to do? I can’t imagine any feasible mechanism that could have stopped those people from joining the march (as I did), or from doing what they did once there. On the other – more important – hand, that story didn’t just happen: it was written, by people who chose to write it that way and knew (or could have known) that they were grossly misrepresenting the march. And there are reasons why they did this. Often, I think, the reason why right-wing journalists write about violence and thuggery on the Left is that, when they look at the Left, that’s what they see. Whether violent acts are widespread or sporadic, major or minor, real or very largely imaginary is secondary: any actual violent incidents are simply outward confirmation of the violence inherent in the Left. An extreme example: in the late 90s I was on the Steering Committee of the Socialist Society, which involved attending monthly meetings in London. The meetings weren’t eventful; 10-15 people would turn up, we’d get through the agenda by lunchtime, and sometimes someone would give a paper or there’d be a guest speaker. I was pretty chuffed to have got on to the Steering Committee (although it wasn’t actually a contested election) and, before my first meeting, made the mistake of telling someone at work about it. On the Monday morning, another of my colleagues greeted me: “Have a good time in London? Kick many coppers, did you?” I was startled and genuinely confused. “Did you kick many coppers?” she repeated, as if for the hard of hearing. “On your demonstration.” I explained earnestly (clearly there’s been some misunderstanding) that there hadn’t been a demonstration, I’d gone down for a meeting… “Yeah, your socialist meeting – same thing. That’s what you lot do, isn’t it?”

Well, no, it’s not; we know that, and (judging from their firm but low-key presence, and those four arrests) the police know it too. But the Right believe it is, and the Right will always believe it, or affect to believe it. After all, what incentive have they got for not believing it? Define violence as illegitimate – as the mark of political illegitimacy – and then find reasons to denounce the Left as violent: there’s no reason this should ever stop working for them. And the way it works is to put us on the back foot, set us wringing our hands and writing earnest articles about how this sort of thing has no place on the Left. It’s divisive, demobilising and above all endless: they will always come back for more.

The ultimate example of this (so far) is the Tweet in which Dan Hodges announced

The fact delegates to the 2015 Conservative party conference can’t enter without feeling intimidated is a national disgrace.

Now, work with me here: what’s Hodges actually saying? Is protest illegitimate? (Not Hodges’s word, but if something’s a ‘national disgrace’ I think we can assume that whatever brought it about isn’t a legitimate thing to do.) Surely not. Might different considerations apply to protest in large numbers? I think most of us would be reluctant to go down that road, if only from familiarity with the sorites paradox. Is protest only legitimate if it’s targeted at the people directly responsible for the problem in question (viz. the government) rather than ordinary decent people with no direct responsibility (viz. Tory party members)? That won’t work, because the problem people were protesting about was, precisely, the power and prestige of the Conservative Party, in which individual members have a small but definite stake. (If Labour were in power and doing things many people disagreed with, I’d take “Labour scum” as fair comment – it’d be unwelcome and hurtful, clearly, but I’d know where it was coming from and accept that I’d laid myself open to it.) Is protest not legitimate if it hurts people’s feelings? Is it not legitimate if anyone hears? Or is it just flat-out not legitimate, what with the Tories having won the election?

Hodges’s position seems to echo Peter Ramsay’s theory of ‘vulnerable autonomy’, which Ramsay used to explain the rationale of the ASBO; the idea seems to be that making somebody feel unhappy is itself an illegitimate exercise of coercion, against which the previously-happy person has the right to be protected. Carried into politics, and into the field of political protest in particular, this essentially amounts to redefining speech as violence – and, as we’ve seen, violence is the border-post of political illegitimacy, the point where politics ceases. These are deep and dangerous waters, and I recommend my friends on the left to get out of them pronto.

This was a big march; it was a big, well-organised march that went off peacefully; it was a big, successful march. That’s what we need to hold on to, and the message we need to put out. It’s not as if a march like that is going to get a fair depiction in the press or on the BBC. Not in the short term, anyway – in the longer term I’m hopeful, despite all the evidence. It’s coming yet for a’ that.

TCM 4 – This statement is unreliable

Apologies to anyone waiting for the Scottish post, but this came up on Twitter last night and I wanted to write it up properly.

Peter Jukes in the Indie:

Jeremy Corbyn was wrong to even suggest on Tuesday that Tony Blair could face war crimes trials for [Iraq] … Many argue, quite cogently, the Iraq invasion was “illegitimate” without a second UN Security Council vote. But to my knowledge this is not the same as being “illegal” in accordance with any war crimes convention in international law. (Kofi Annan indicated in 2004 it “it was not in conformity with the UN charter” but that is a very different thing.)

There’s a certain amount of double-talk going on here. Here’s Corbyn suggesting that Blair could face war crimes trials:

Asked on BBC Newsnight whether Blair should stand trial on war crimes charges, Corbyn said: “If he has committed a war crime, yes. Everybody who has committed a war crime should be.” … He said: “It was an illegal war. I am confident about that. Indeed Kofi Annan confirmed it was an illegal war and therefore [Tony Blair] has to explain to that. Is he going to be tried for it? I don’t know. Could he be tried for it? Possibly.”

And here’s Annan on illegality and non-conformity with the UN Charter:

In an interview … he was asked outright if the war was illegal. He replied: “Yes, if you wish.” He then added unequivocally: “I have indicated it was not in conformity with the UN charter. From our point of view and from the charter point of view it was illegal.”

It seems to me that the distinction between “illegitimacy” and illegality is a bit of a red herring, as is the insistence on talking in terms of “war crimes”. The jurisdiction of the International Criminal Court formally covers both jus in bello (under the heading of crimes against humanity) and jus ad bellum (the crime of aggression); however, the crime of aggression remains undefined and consequently can’t as yet be referred to the Court. Blair could conceivably be referred to the ICC for illegalities in the conduct of the Iraq invasion, although this seems highly unlikely for several reasons. What can’t happen, pending amendments to the Rome Charter, is an international prosecution for initiating the invasion. And this is what’s chiefly at issue when we’re talking about Corbyn’s position on Iraq: the legality of the invasion in international law is the question on which Corbyn is clearly and unequivocally on the other side of the argument from Tony Blair, Peter Goldsmith, Burnham, Cooper, Kendall et al.

In discussion on Twitter sparked by the Jukes article, Carl Gardner cited this 2010 post in which he came down on the side of the invasion being legal. It’s detailed, closely-argued and well worth reading (as Carl’s posts generally are), although I don’t agree with its conclusions (as I generally don’t). For the purposes of this post I want to focus on a minor point made in the course of Carl’s conclusion:

I agree with Lord Goldsmith’s advice of 7 March 2003, first that the safer course would be to seek a second resolution authorising force; the UK did that, of course, and failed; and second, that the “revival” argument, that further material breach by Iraq would revive the authorisation of force in UNSCR 678, is a reasonable one. I’d go further, in fact: I agree with what Lord Goldsmith seems to have concluded a few days later – that the “revival” theory is the better view, to be preferred to the alternative put forward by Elizabeth Wilmshurst, that resolution 1441 clearly required a further decision by the Security Council. She told the Chilcot Inquiry that the wording of resolution 1441 had this effect … that was what made the position different from 1998 [when the US and Britain bombed Iraq], when as I’ve said she had agreed with the revival theory (though she now thinks it was “strained” even then).
…
In any event, the fact that Elizabeth Wilmshurst’s change of approach since 1998 turns on a detailed construction of 1441 shows the question is not an easy or obviously one-sided one. The fact that two views are possible is enough, in my view, to reject wild, overblown and rhetorical claims that Tony Blair is a “war criminal”, for example.

Carl’s 2010 argument – the minor one at the end of this quote – and Peter Jukes’s argument about what Corbyn should and shouldn’t have said have something in common. As we can see, Corbyn didn’t claim that Blair should be seen as a war criminal – he didn’t take any position on that question at all. What he didn’t do, however, was rule it out: he included Blair among those people who could, in some imaginable real-world circumstances, be prosecuted for war crimes. I don’t think it’s over-reading to say that this – the non-dismissal or failure to exclude – is the ‘suggestion’ which Jukes and others find objectionable. Conversely, Carl in 2010 pointed out – correctly – that there is more than one view on the relationship between UN 678 and UN 1441, and between the pair of them and the Iraq invasion itself; he then argued that this plurality of views was sufficient to rule out the possibility of claiming that Blair was a war criminal. But surely this doesn’t follow: if there are multiple ways in which reasonable people can read the materials that determine whether the invasion was legal, presumably one of those views may be that it was illegal and should be prosecuted as soon as amendments to the Rome Charter make it possible. (At which point claims that Blair was a war criminal would be improper, but only because the matter was sub judice.)

What Carl’s post expresses here, it seems to me, is something similar to Jukes’s objection to Corbyn. The argument (on this point) is not that labelling Blair as a war criminal is incorrect, but that this view should not be held by anyone: this position should not be denied but excluded, dismissed, ruled out of consideration. And it should be excluded because it’s “wild” and “overblown”; it doesn’t have a place on the spectrum of valid and reasonably-held beliefs. Even Corbyn’s mild and measured comments, for Jukes, were a dangerous diversion from how politics should be conducted. It’s as if the expression of some beliefs is, in itself, hostile to all other beliefs – as if some beliefs could not be expressed within a debate but only by heckling.

What’s going on here? Let’s take a quick detour into the philosophy of language. (Don’t ask why I’ve been reading philosophy of language.)

In ordinary usage we tend to think that there’s no difference between making a statement S and making the quotative meta-statement “S is true”: the same information is conveyed by the two statements “There is snow on the ground.” and “If somebody says ‘there’s snow on the ground,’ they’re telling the truth.” But this leads us into some difficulties. Say that your friend Jo asks about your mutual friend Harry’s dog: is it well? You’d heard that Harry was getting a dog but don’t know anything about it; you want to change the subject, so you give what seems the most acceptable answer: “It’s fine, Harry’s dog is fine.” Later you discover that Harry had planned to get a dog but thought better of it and got a cat instead. So there is no dog.

Question: were you telling a lie when you asserted, on no evidence, that Harry’s dog was in good health? Logically speaking, you weren’t. Your assertion wasn’t true, but neither was it false: “Harry’s dog” doesn’t refer to anything in the world, so statements about it can’t be either true or false (since they can never be either proved true or falsified). (Compare “Noah’s Ark was painted in bright colours”.) “Harry’s dog is fine” is neither true nor false. But what if you’d thought Jo looked suspicious and added “I’m telling you the truth, Harry’s dog is fine”? That statement (or meta-statement) would have been false, because the original statement isn’t true (neither is it false). On the third hand, if instead of asserting truth you’d denied falsehood – “I’m not lying, Harry’s dog is fine” – that statement would have been true, for much the same reason.

We seem to have a paradox: we started from the position that (1) “Harry’s dog is fine”,  (2) “It’s true that Harry’s dog is fine” and (3) “It’s not false that Harry’s dog is fine” were logically identical, but we’ve identified conditions in which (3) is true and (2) false while – or because – (1) is neither true nor false.

One way to resolve it would be to look a bit more deeply into our ordinary-language understanding of the meanings involved. Why, after all, would anyone actually say “I’m telling you the truth, Harry’s dog is fine”? Perhaps, rather than being a meta-statement referring to the statement following it, the first clause is doing a separate job, asserting the trustworthiness of the speaker and the speech-act rather than the truthfulness of the statement: perhaps what this speaker is actually saying is “you can trust me to be telling the truth when I make the following statement”. In this case the paradox dissolves: under conditions where (1) is neither true nor false, the distinct statement (2) is false (because it’s asserting that the speaker is stating the truth when asserting (1)), while (3) is, rather sneakily and pedantically, true (because it’s asserting that the speaker isn’t stating a falsehood when asserting (1) – as indeed (s)he isn’t & can’t be, given that Harry’s dog doesn’t exist).

What’s all this got to do with Corbyn, Jukes, Gardner and Iraq? Carl’s post is a good starting-point. On the main point at issue – the legality of the invasion – he made four key assertions: that

1. whether or not the invasion was legal depends on the text of two UN resolutions, the relationship between them and how these things are interpreted;
2. there is room for different and conflicting interpretations;
3. he personally endorsed an interpretation which concluded that the invasion was legal (“I agree with what Lord Goldsmith said was the legal justification for war”)
4. “The invasion of Iraq was lawful”

To put it more schematically:

1. There is an agreed set of facts on the basis of which statements can be made
2. Both statement S and its negation not-S can be argued on the basis of those facts
3. On the basis of those facts, I believe that S is preferable to not-S
4. S.

I’m not criticising 2010-Carl for making the leap from the meta-statement at 3 to the statement at 4 – quite the reverse: I think this is an exemplary piece of unpacking. It’s reminiscent of what we do when we read a Supreme Court judgment: we see an uncontentious stock of facts and precedents construed in two or three different ways and an authoritative reading established partly by consensus and partly by majority vote. Once the decision is made, after multiple more or less plausible readings have been set out, the state of the law is what the SC majority concluded it to be: we proceed from “S and not-S are both arguable” to “S is preferred” and thence directly to S. And similarly with Carl’s assessment of the rival arguments about Iraq, his statement of his preferred alternative and his factual assertion that the invasion was lawful.

The question then is whether this is a game that only lawyers can play – or whether everyone, having made a factual assertion, is capable of clambering back down the ladder from 4 to 3 and back to 2. I think there’s a danger of a lack of charity in the assumption that we hold our beliefs lightly and on the basis of a preferred interpretation of agreed facts, whereas our opponents have positions that they maintain to the exclusion of all others. There’s also, perhaps, a danger of vanity in the assumption that we hold all our beliefs lightly. Related to this last point, I wonder if ‘unpacking’ is the right metaphor. If “S is true” is a different statement from S, presumably the same can be said of “I believe that S is true on grounds which I am prepared to justify logically”. However we arrive at our beliefs, “belief that S” once established is a distinct mental attitude – not an epiphenomenal aspect of a more fundamental “preference for the justificatory grounds for a belief that S“.

So I can’t agree with Carl: to say that Blair is a war criminal is not, in and of itself, to say that no other readings of the facts are possible or to deny that one has reached that opinion by selecting a preferred interpretation of the facts. A fortiori, Peter Jukes’s indignation at Corbyn’s mere failure to rebut the suggestion that Blair might be considered a war criminal is misplaced. (For what it’s worth, I think Corbyn handled the questioning rather well. If the Rome Charter is revised, Blair could be prosecuted by the ICC for waging aggressive war. I doubt we’ll ever see it, and if we do I would expect him to be found not guilty. But ‘possibly’ is about right.)

I think all this relates to a broader point about the Corbyn campaign. Let’s say that the spectrum of acceptable debate runs from position -3 (left of centre) to +3 (right of centre); if I assert position -5, those who hold +1 or +2 (or even -1 or -2) are less likely to argue with me than they are to dismiss my position and demand that I dismiss it too. And if, meanwhile, the centre has been shifting – so that today’s -5s are the -1s or +1s of twenty or thirty years ago – a calm and reasoned statement of -5 is liable to evoke a lot of suppressed demand in some quarters and rattle a lot of cages elsewhere. I think it’s largely because Corbyn’s campaign puts back into circulation positions that have simply been excluded – rather than being controverted or even challenged – that it’s causing such consternation on the Right and showing such power to mobilise on the Left.

 

 

 

Dangerous decisions

Once more on Moohan and Unison (no 2).

In my post on the Moohan ruling last year, I criticised the Supreme Court’s application (or rather refusal to apply) a putative common law principle of universal suffrage. My comment was critical of three opinions which dismissed the possibility of applying any such principle, pointing out that they did so for different and unsatisfactory reasons.

The roadblock in the way of asserting common law rights is not political but statutory, even constitutional: the idea of statute law as bedrock runs through all three comments, and its effects are, if possible, even more conservative than outright deference to the executive would have been. The trouble is, common law rights would mean nothing unless they could be asserted against statute. Lord Hodge, to his credit, recognises that there may be situations in which common law rights must be asserted against constitutionally legal decisions, but he defers any such activist role for common law lawyers to a distant and catastrophic future – just as Lady Hale relocates the common law to a distant and almost pre-legal past. From this decision there seems little hope of the common law playing any sort of safeguarding role in the present tense, as ECHR jurisprudence currently does.

As for Unison (no 2), this concerned the justifiability of the imposition of employment tribunal fees, on grounds other than cost saving (after all, if the government stops funding anything it will be able to show a cost saving, at least in the short term). (Strictly speaking, the issue was whether the benefits of the change could outweigh the potentially discriminatory effects of the imposition of fees, given that women are more likely than men to find the fees unaffordable. Half a cheer for sexism: a universal detriment wouldn’t be actionable in this way – or, perhaps, at all.)

The court accepted the Ministry of Justice’s argument that the new fees regime could be justified on the grounds of promoting appropriate behaviour change. I wasn’t convinced:

The argument is that the fees will change some groups of clients’ behaviour: those claimants with conciliable claims will be encouraged to have them conciliated, while those with unmeritorious claims will be deterred from proceeding and will sling their hook. … But the fee regime is, of its nature, imposed on claimants in general. … Perhaps we could justify treating all claimants as no-hope chancers, on the basis that the good claims would stay in the system; perhaps we could justify treating all claimants as mediation clients gone astray, on the grounds that unmediable claims would find their way back to court. We certainly can’t justify treating all claimants as both these things – and, even assuming that both these groups exist in significant numbers, it’s hard to imagine any possible package of incentives which would address these two groups and nobody else.

In fact these aren’t two distinct objectives but one objective with two benefits. Given the lack of any possible mechanism to single out weak or inappropriate claims, and the lack of any evidence as to the prevalence of such claims in the system before the introduction of fees, the Lord Chancellor’s aim must have been – at best – to reduce the number of weak and inappropriate claims by means of an overall reduction in claims. The objective, then, is to divert people out of the system; the benefits are that these two groups, to the extent that they exist, will be dealt with more appropriately.

In short:

By introducing a fee where none existed before, the government has restructured the terms on which people decide whether or not to go to a tribunal, with the express intention of discouraging them from doing so.

In other words, the court allowed itself to be distracted by incidental benefits of the change – and I don’t deny the possibility that it will discourage some unmeritorious claims and some claims which would fare better in mediation – from the overall reality of a straightforward, and fairly overt, attack on citizens’ access to justice.

Why were these decisions unfortunate? (And why do I say ‘unfortunate’ rather than ‘wrong’?) Essentially, I would argue that they both evince a cramped and timid conception of the relationship between the law, the courts and the government of the day. This timidity – in terms of both deference and lack of imagination – would be regrettable at any time. At a time when the government is openly attacking key elements of the rule of law, and doing so with both imagination and boldness, it is dangerous.

Has the election changed matters? Has the replacement of the appalling Grayling by the emollient Mr Gove improved matters? We shall see. But I don’t believe that Gove cares any more than Grayling for the kind of people whose rights tend to be vindicated by European Convention rulings, i.e. those who don’t have the power, wealth or connections to vindicate them any other way; and I certainly don’t believe that Gove is a secret enthusiast for higher public expenditure. The tone is different, but the battle is going to continue. Better – more assertive, more empowering – decisions than these are going to be needed if the rule of law is to retain any meaning at all.

NB According to Charon QC (no less) the Unison case has its second hearing this month (June 2015); I can’t find any more information about it online, so I assume it hasn’t happened yet. I shall hope for the best and fear the worst; at least that way I’ll be covered.

Play us out, Phil: