SOME CONFIDENTIALITY DILEMMAS

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Most people have their smart phone in their pocket at all times. Most smart phones are also recording deviseS. If there’s any chance it’ll be a “he said, she said”, stick your hand in your pocket and press the record button. And if you’re asked to leave the room, so that Asshole 1 can speak privately with Asshole 2, leave the phone on under some papers, and when the meeting’s over just say, “Oh, ‘scuse me, I think I left my phone in here.”

Eventually assholes will catch on, but if they ask you to leave your phone at the door, just keep a spare on you. What’s he going to do? Pat you down? And if he does then you know he’s going to say something he’s later going to deny saying, so just decline to listen to it. Even without any such device, if he starts a sentence with, “Off the record …” just say, “No it’s not.” If he wants to go ahead anyhow it’s on his head.

As far as I know, there are no conditions, neither under criminal law nor under tort, in which one is required to keep a confidence not agreed to beforehand, either explicitly or by voluntarily accepting the position giving one access to confidential information. It is an article of my contract with the university that I will not disclose information about my students. I entered that contract of my own free will. But were I drafted into the army, I would not be under any moral obligation not to reveal secrets to the enemy, nor am I under any moral obligation to disabuse the enlistment officer of his supposition that I am. This is why the Israelis, at least so far, have had the good sense not to draft its Palestinian citizens into the IDF, though Netanyahu has recently been advocating an end to Palestinian immunity from the draft. Presumably saner minds will prevail.

Non-disclosure agreements aren’t worth the paper they’re written on. “So how much was your payout?” “I’m not allowed to say.” “Fair enough. But feel free to blink when I’m getting close.” What holds people to non-disclosure is nothing more than their having given uptake to it. Don’t give it. If it’s something you think shouldn’t be shared then just don’t share it. If you think it should, then do.

This places the would-be whistleblowing in a very difficult position. Most whistleblowers – Edward Snowden among them – have taken an oath of non-disclosure. But can one take an oath not to disclose a criminal offense? Certainly my having promised my buddy I won’t report his sexual interference with a minor will not save me, neither legally nor morally. It’s easy to say, then I shouldn’t make such a promise in the first place. I won’t ask, you won’t tell. But the breaking of a promise is often the sine qua non of putting a stop to a series of serious crimes. Save for specified cases where the public interest in the crime outweighs its interest in the sanctity of marriage, a spouse cannot be forced to testify against a spouse. But then surely the same rationale should apply to close friendships. And to some extent it does. Judges tend to be very lenient with people who refuse to rat out a friend, because that kind of loyalty is often all that stands between us and 1984.

As with virtually the entire corpus of ethics and law, all of these considerata can only seek some imperfect equilibrium. Reasonable people can and do disagree about where that equilibrium lies. Hence the ongoing debate over Snowden. I can see both sides of the issue. On the one hand he did us all yeoman service. On the other, the next set of loose lips might sink some ship on a mission of unquestionable mercy. Even if we suppose, as does Mr. Spock, that “The needs of the many outweigh the needs of the few!”, it’s not at all clear how many lives Snowden saved versus how many the next Snowden might endanger. So principles don’t offer umuch help here.

My own view, for what little it’s worth, is that Edward Snowden be allowed to disappear in plain view into the streets of his home town back in America, and we all pretend we saw him taken down in a blaze of bullets as he stepped onto the tarmac. Mutatis mutandis this is how we solve the mercy killing dilemma. And some people think this is precisely what we did vis a vis bin Laden. Sometimes a little collective delusion can go a long way.

 

TENNYSON’S ULYSSES

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I’m told that “May you live in interesting times!” was actually an old Chinese curse. I guess seems the Chinese are ill-disposed to excitement. “Soooo,’ I ask my Chinese friend, “what’s happenin’ that’s interesting?” “Nothing,” he answers. “Thank God,” he adds. I guess I’m not Chinese. I’m more like Tennyson’s Ulysses.

How dull it is pause, to make an end,

to rust unburnish’d, not to shine in use!

As tho’ to breathe were life!

But do we live in interesting times? Well, I’m certainly old enough to remember times that were more interesting. February 1968, for example. I wouldn’t know about the wine that year, but the Tet Offensive was kick-ass! Those were very interesting times. Now the only politics and world affairs that grab the headlines is the stand-up comedy inspired – or mostly performed – by the Donald. It’s almost as if we’re living in what was once predicted would be ‘the end of history’, by which was never meant the end of the world, just the end of anything interesting happening in it.

What are the great social movements that will define the current generation, the kids who are morphing into adults as we speak? The rise of jihadist Islam? Not likely. All these young would-be warriors have smart phones. Smart phones access everything. Soon enough they’ll be into internet porn like every other young man their age. Maybe it won’t be “Make love, not war!” But at least it’ll be “Make out, not war!”

Or how ‘bout the fight for LGBT rights? Sure, only a First World problem today. But once from his smart phone Ahmed realizes he could, after all, be the Fatima he always felt he was, it becomes an Every World problem. Though even at that it’s rapidly ceasing to be a problem. Did you know that the country leading the world in the number of sex change operations is actually Iran? Well now, whoduthunkit?!

Borders move this way and that. Passenger planes take down tall buildings. Tanks roll into Gaza or South Lebanon and then back out again. But none of this has the chutzpah of Entebbe or the drama of that scene on the roof of the American embassy in Saigon.

And the music died too. I suppose that with the fall of Saigon it was all inevitable. Lady Gaga is no Janice Joplin. Leonard Cohen is dead. Paul Simon got fat. Even Dylan is no longer Dylan, not really. And without the musical score to make it all mean something, it doesn’t. Occupy Wall Street just meant get a job there. The Idle No More bus is in the parking lot idling. And as it turns out, surprise surprise, Black Lives really don’t Matter.

But then to be fair, neither does anything else. And maybe that’s it. Maybe it’s that, though there’s always something that matters to each of us, there’s nothing that matters to all of us. That’s probably how it was back in the day as well, but that’s not how I remember it. The way I remember it is, we had a war to end, and we did. We had women’s rights and gay rights and the civil rights of blacks to enshrine , and we did. We had sexual taboos to bust, and we did. Obama’s campaign slogan was only Yes We Can. We didn’t need a slogan. We had bell bottoms. And that made us much more effective.

I’m two thirds of a century old. But how did Tennyson’s Ulysses put it? Ah yes,

Old age hath yet his honour and his toil;

Death closes all: but something ere the end,

Some work of noble note, may yet be done,

Not unbecoming men that strove with Gods.

I’m not sure what work of noble note remains to be done. It all seemed so important back then. And it was. And at least some of those things still are. But there’s something else. It’s not unfinished business, nor something new, nor something urgent, nor something blue. Two thirds of a century, and here, such as it is, is the wisdom I have to show for it: What’s yours to do is whatever could have as easily fallen on someone else’s watch but just happened to fall on yours.

I didn’t choose any of the topics I’ve written about in this blog. Nor, in all likelihood, what I’ll write about tomorrow. They’re all things that just happen to have fallen on my watch. If my colleagues weren’t such idiots, or my wife not a fledgling philosopher in need sometimes of a little lift under her wings, I’d be writing about either or both of the two things that have obsessed me, if not my whole life, then certainly my whole career. 1) I’m an atheist obsessed by theodicy, and 2) I’m a man who spent less than an hour in one, and yet is obsessed with understanding war.

Now then, if my colleagues would just stop being such idiots, and my wife would just hurry up and get her PhD, maybe I could get a few words in edgewise about these two things. But I’m not holding my breath.

 

 

THE SAME-SEX MARRIAGE DEBATE

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In the course of his travels, Gulliver came upon an island very much like our own. Not unlike how it was for us, the complementarity of their genitalia was for most of their history the sine qua non of reproduction, and reproduction was serious business for pretty much everyone. But because reliable birth control had long since become so widely available, and because the job of perpetuating the species could be assigned to those who wanted the job, the bivalence of their genitalia had become pretty much vestigial.

Which is not to say their genitalia no longer served a function. On the contrary, the stimulation of their genitalia continued to provide them tremendous pleasure. And mutual stimulation, otherwise known as having sex, continued to encourage and sustain the same emotional bonding between people that it always had. So in these respects these islanders’ sex lives were indistinguishable from our own.

Not entirely unlike us, their society was made up of two very distinct races. And for some reason – Gulliver asked, but no one could remember why – white people and black people had sex with each other, but only about 7% of people had sex with people of their same colour. Though it struck most of these islanders that sex with people of the same colour was a tad odd, generally their attitude towards it was a shrug and a chaque a son gout. But there was a significant proportion who were viscerally disgusted that anyone would want to have sex with someone of the same colour. And that disgust would sometimes escalate to hatred. And that hatred would sometimes manifest itself in violence. The word the islanders coined for those who were prone to such disgust and/or hatred, and/or violence, was – ‘racist’.

When Gulliver returned to his own country he took with him a friend he’d made on the island. The visitor took notes on what he observed, and after a time he reported to Gulliver that he was both amazed and delighted to discover that there was no racism whatsoever in Gulliver’s country. But he was at the same time utterly baffled by something else, which, for want of a better term, he decided to call ‘heterosexism’, or alternatively, ‘homophobia’, by which he meant the visceral disgust that anyone would want to have sex with someone of the same sex. And, he observed, that disgust would sometimes escalate to hatred, and that hatred would sometimes manifest itself in violence.

Being as they were both amateur anthropologists, they discussed these two culture-specific phenomena, racism and homophobia, at great length, trying to come up with narratives that could account for each. Both cultures, the island’s and Gulliver’s, had long since taken the Darwinian turn, so of course the first place they looked was to the evolutionary history of these traits. There were no end of just-so stories that could, perhaps, account for them. But they noticed that for neither the racists on the island nor for the homophobes in Gulliver’s country did any such evolutionary story resonate. This doesn’t mean one or more of these stories couldn’t have been true. Much of our evolutionary history is inaccessible to our conscious reflection. But that was just the problem. There were too many such stories, each as non-falsifiable as the next.

So next they tried religion. On the island homo-racial sex was, at least for many racists, an abomination in the eyes of God, and in Gulliver’s country for many homophobes it was homosexuality that would condemn one to Hell. But both Gulliver and his guest were astute enough to realize that this just begged the question. Even if God’s druthers were not just projections of our own, why was God a racist there and a homophobe here respectively?

But Gulliver and his friend were also astute enough to realize that it really didn’t matter why there were racists and homophobes in their respective countries, because how something came to be says nothing about whether we should hold on to it. And if there’s no justification for holding on to it now – and assuming it makes life unpleasant, even if only for a small minority within our communities – we should probably just let it go. Assuming there’s something deep in their respective DNA’s that’s driving the islanders’ racism and Gulliver’s community’s homophobia, there’s nothing to be done about the former’s discomfort with same-race sex or the latter’s with same-sex sex. Pedophilia might be in our DNA too, but that’s hardly a reason to just let pedophiles have their way with our children.

Needless to say, this chapter of Gulliver’s Travels, like the chapters Swift himself wrote, is meant as a parable. What it tries to argue is that there’s no morally relevant distinction between homophobia and racism, and that if acting on one’s homophobia is justified, so is an islander’s acting on his racism. And the point of racism being defined in the story as discomfort with sex within a race, rather than between two races, was to show that the one makes no more sense than the other.

Like all parables, it’s an argument by analogy. And like all arguments by analogy, it’s refuted if one can find in it something relevantly dis-analogous. I can’t. But maybe someone else will.

The application of the argument to the same-sex marriage debate should be obvious. The islanders’ law doesn’t insist that would-be couples be of opposite colours. Why, then, should our law insist they be of opposite sexes? If state-recognized marriage is an institution worth preserving – and that’s a whole nother issue – then genitalia should be no more of an impediment to marriage than skin colour. Or, if you want to re-introduce genitalia as an impediment to marriage, then you should have no objection to those who’d re-introduce skin colour as an impediment to it.

Come to think of it, that might not be such a bad idea, provided the prohibition runs with the islanders’ intuitions. I’m white. We already have it that I can’t marry my sister. We’re just expanding this to say I can’t marry anyone who looks like my sister. And, well, you know, all us crackers look alike.

THE TRUTH ABOUT TRUTHERS

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Hans Kuhn observed that a scientific hypothesis survives, and rightly so, until a better one comes along. But surely there are some hypotheses which, notwithstanding we don’t yet have – perhaps we’ll never have – an alternative to replace it, can be conclusively rejected because it’s simply falsified by the evidence. In such cases all we can say – and all we do say – is “Damned if I know!” For example, that the socks that have been eaten by the dryer have in fact been abducted by aliens has been empirically and conclusively falsified. And yet the Great Sock Mystery remains.

I suspect it’s this Kuhnian philosophy of science that’s driving many 9/11-Truthers. “No,” they admit, “we don’t have an alternative account that’s ready for prime time. But, dammit, it’s pretty clear that the official story can’t explain Building 7, and so the official story can’t be true.”

The only way around this, I suppose, is to show that the official story can explain Building 7, just as the Warren Commission tried to show that ‘the magic bullet’ wasn’t magic after all. I’m no expert on either 9/11 or the Kennedy assassination. Never will be. Just not interested. But it does seem to me that “Damned if I know!” is the more epistemically defensible response to the Great Building 7 Mystery than “So it must have been Mossad!”

That it must have been Mossad has about as much epistemic warrant as that it must have been Tinker Bell. But it has considerably more doxastic warrant. By the former I mean what one might have grounds to believe is true; by the latter I mean what one might find it most useful to believe. More often than not the two coincide. But not always. And in the case of having epiphenomenal beliefs – and our beliefs about the 9/11 are as epiphenomenal as beliefs get! – truth is pretty much irrelevant. What’s at stake is our knowing nods to our fellow travellers, not whether this knowingness reflects any real knowledge. So, for example, if I already have a bee in my bonnet about Israel, saddling its government with 9/11 – especially when it can never be proven otherwise – might not go amiss.

And this, I think, goes a long way to explaining what drives a lot of these Trutherisms. Unfortunately it also explains what drives a lot of convictions that aren’t called Trutherisms, but share the same etiology. Such as? Such as that anthropogenic global warming caused the Syrian civil war, or that global warming denialism is a wholly owned subsidiary of the evil Koch brothers.

This is not to say that the Syrian civil war was not caused by anthropogenic global warming, any more than it’s to say that 9/11 was not the work of Tinker Bell. Could have been. Neither is a metaphysical impossibility. And neither has been empirically falsified. It’s just that some hypotheses are more metaphysically extravagant than others. And extravagance is not among what W.V.O. Quine calls the virtues of an acceptable hypothesis. All other things being equal, advises Quine, opt for the hypothesis that’s the least metaphysically extravagant, where by ‘metaphysical’, in this context, is meant pertaining to unseen agents like Tinker Bell, or at least unseen agency, like global warming.

The problem with Quine’s advice, however, is that it presupposes we share a common take on what counts as extravagance. But we don’t. To the 9/11-Truther that nineteen ‘dumb Ay-rabs’ could have pulled this thing off is beyond credulity. For me that Mossad pulled it off, and then made it look like nineteen dumb Ay-rabs did it, just adds a gratuitous level of complexity. It wouldn’t be gratuitous if there were something about the hijackings that couldn’t have been pulled off by these nineteen dumb Ay-rabs. But that’s never been the Trutherist claim. Their claims have always been about the impossibility of the consequences of the impact of those planes on the two towers; that on their own those planes couldn’t have brought those buildings down. And certainly not Building 7.

So, it would seem, an implication of the Trutherist view is that Arabs are just too stupid to do what Jews, by contrast, are smart enough both to do and, as icing on the cake, to cover up their having done it. One wonders, then, why 9/11-Trutherism is so widely associated with anti-Semitism, when it should be associated with thinking that the Nazis just had it wrong about which is the true master race.

Most of the people reading this are, I take it, on the left, left in the sense of being pro-Choice, pro-vaxxer, anti-Trump, you know, that kind of thing. And from what’s been just said, they might be rubbing their hands with approval. Until, that is, they realize that this knife cuts both ways. Most of my readers – no, change that to – none of my readers have a shred of epistemic warrant for believing what they do about vaccination safety, the evilness of the Koch brothers, anthropogenic climate change, or pretty much any of the things they flaunt their high dudgeon about. But they have doxastic warrant out the wazoo. They want to believe these things, and they’ll cherry-pick from the orchard whatever they have to to buttress their beliefs, just as the Truthers do to buttress theirs.

So the truth about Truthers is also the truth about Falsers. And so since none of us can be neither Truther nor Falser – because remember: we live in a bivalent doxastic universe – this is the truth about all of us.

Sorry, I meant all of you. I’m not one of us. I’m the alien who’s been tractor-beaming your socks.

THE HOLOCAUST INDUSTRY

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In the same way that my first year students have a penchant for starting their papers with “For thousands of years philosophers have wondered …”, I like to start mine with “Of the things I care least about …” The problem is, that list keeps changing. It used to be the minutes of last night’s city council meeting and – just to piss one of my colleagues off – global warming. But now I want to expand my blast radius. I want to finish the sentence with “… Holocaust denial.”

Do I mean by this that I don’t care that some people deny the Holocaust, or do I mean by it that I don’t care whether the Holocaust happened or not? Both. “What hangs on it?”, I keep asking. And no one seems to understand the question, let alone have an answer to it.

I suppose that if, over a period of six year, six million people just up and disappeared – people for whom there were birth certificates, addresses, in some cases phone numbers, in almost every case people who knew them and saw them being taken from their homes, and if notwithstanding a first-rate telegraph and postal service not a single message arrived to say, “Having a great time. Wish you were here!” – we might be a tad curious about what happened to them. Especially if they were friends or loved ones, or the relatives one never knew but heard tell of; heard tell that they were, at least at the time, from this village or that block, but they just mysteriously seemed to have vanished into thin air. In a war the size of WW II, a couple thousand MIAs wouldn’t be all that remarkable. So neither would a couple thousand missing persons be amiss. But six million?!

The average German on the Wannsee omnibus claims she didn’t know. I’m not buying it!

To some, gas chambers and alien abduction seem equally implausible. But what if, there being no third and better explanation, some of us decided to go with gas chambers and some of us with alien abduction. Either way I have far fewer relatives than most of my gentile friends. And surely if half of our race had been abducted – and probably eaten – by aliens, we’d be as entitled to the world’s sympathy as had they’d been instead gassed by Earthling aliens called Nazis. So the justification for the State of Israel – assuming it needs one – would be secure in either case. So when I consider the mountains upon mountains of evidence and counter-evidence that have been compiled to settle the gas chambers vs alien abduction issue, I can’t help wondering what all the fuss is about.

Yes I know. I’m probably a Philistine that somehow got mistaken for a Jew. If I were a real Jew I’d care deeply about setting the record straight. And about heartfelt one-liners like “Never again!” Or my personal favourite: “We need to understand the Holocaust so it can never happen again!”

But wait a minute. It has happened again. And again. And then again … Nor is it a great mystery why. Herds sometimes have to be culled. When you’re culling a herd you don’t go after the strongest. They’ll take too many of you down with them. Rather you go after the most vulnerable. First you disarm them, then isolate them, then vilify them, and only then do you exterminate them. Happened before, happened since, and will happen again. And again. And again …

Sometimes it’s race, sometimes it’s religion, sometimes it’s the language you speak, sometimes it’s the relative grandeur of the house you live in. What’s to be learned is not not to let it happen again. That’s no more in your power than the weather. What’s to be learned is not to let yourselves become that most vulnerable.

The Israelis have certainly learned that lesson. They’re dealing with the Palestinians in Gaza pretty much the way the Nazi dealt with the Jews in the Warsaw Ghetto. Hell, I wouldn’t be surprised if they learned it from the Nazis. Disarm, isolate, vilify, kill. It’s a formula. It works. Live with it. Move on.

Okay, that was harsh. But sometimes people need to have their heads pulled out of their asses. The historicity of the Holocaust, not unlike the facticity of global warming, is a self-perpetuating industry, giving plenty of people something to do, and some of them – let’s face it – a few shekels for doing it. The Holocaust industry is particularly sexy precisely because it’s so taboo, taboo in much the way that the historicity of the Alamo is not. If this be doubted, ask yourself what would happen to the proliferation and sales of Alamo-Truther literature if it were a criminal offense to deny the Alamo.

Do you really want to shut those Holocaust-deniers up? Then stop prosecuting them. The operative logic here is simple. If you’d made it illegal to say p, then chances are there’s some truth to p. Otherwise you’d have just ignored it. That’s why film producers head straight to the bank when their film is banned somewhere. Holocaust denial, along with any other banned material, just gets sent over to the dark side of the Internet. It becomes one of our guilty pleasures, like reading Conservapedia or – dare I confess this? – watching Friday Night Fights.

Did the Holocaust happen? I dunno. I wasn’t there. Were you?

Certainly something happened. If not gas chambers then alien abduction. Same thing with our missing socks. Either the dryer ate them or they were tractor-beamed. Either way I’m now holding a pair that don’t match. I was a single father. What did I tell my kid when he was holding a pair that didn’t match? “Either wear them or put on a pair that do. But hurry up. The school bus is coming.”

MATTERING

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I trust it will be granted that there are things that matter to no one, that there’s nothing that matters to everyone, and that there are things that matter to some people but not to others. What may not be so readily granted is that there are things that shouldn’t matter to anyone, or things that should matter to everyone, or things that should matter to those to whom as a matter of fact they don’t.

For example, some people think that what Satan wants shouldn’t matter to any of us, whereas what God wants out of His creation should matter to all of us. The latter and I are like ships passing in the night. Whenever I’ve asked them why it should matter to me what God wants out of us, all I get is that, “Well, because He created us.” Obviously what I don’t get is the connection between the explanans and explanandum. And obviously what they don’t get is why I don’t get it. At points like this the Serenity Prayer counsels us to just walk away.

But that’s not so easy when one’s interlocutors have an answer to why we should care about what they’d have us care about. Notwithstanding that I don’t, why should I care about anthropogenic climate change? Because even if, touch wood, I’m too old to be affected by it, future generations will be. And only a philosopher pretending to be a total psychopath would say he doesn’t care about future generations.

Okay, so I do care about anthropogenic climate change. But only in the sense that I care about nuclear warfare. It may or may not happen. There’s nothing I can do about it. So put it on the back burner and think about what’s in the fridge for lunch.

But these proselytizers won’t let it go at that. They want me to treat it like a planet-killer asteroid just twenty minutes from impact. All right, I tell them, but first I have to pee. The end of the world may have more cosmic import than my having to pee, but even if it’s only twenty minutes away, it’s still not as urgent as my having to pee. I have to pee now, dammit! And if I had to pee twenty minutes from now as desperately as I have to pee now, then I guess I’m just going to meet my Maker with my schlong hanging out.

But putting the question of urgency aside, there are far too many things I should care about for me to care about all of them. So I have to prioritize. And this is where a little live and let live wouldn’t go amiss. You care about anthropogenic climate change and I’ll care about Guantanamo Bay. Deal?

Of course when I say “care about” I don’t mean “take care of”. Neither of us is in any position to take care of what we care about. We’re just going to care about it, not unlike the medieval theologian who takes God to be sustaining the world by holding it in His consciousness. Well, thank you, God, for that. And thank you, Tom and Dick and Harry – not their real names – and all the rest of you. Thanks for caring. And at your rallies – not to mention the save-the-world conferences you fly to in places like San Francisco but never Cleveland – thanks for showing up. And I’d like to stay and chat about anthropogenic climate change. Really I would. But you’ll forgive me, I hope, if I have to run. I think I have to pee.

Well, I guess I’m no better. Would that I could just let it go at that. But I can’t. I can’t because two hours down the coast from our summer digs in south Italy, at this very minute lungs are filling up with salt water. And they’re filling up by the thousands! In fact this will be the seventh year in a row that they’re filling up by the thousands. And those who do make it to Lampadusa have little more to look forward to than an indefinite sentence in a tent city by the tracks in Ventimiglia or in the ‘Jungle’ just outside Calais.

A friend of ours, when asked rhetorically whether anthropogenic climate change should be for those whose lungs are filling up with salt water the most urgent problem facing their world, she answered, “Yes, even for them!” To be fair, she said this in the heat of debate. But there are people who actually believe this shite. It’s global warming, they say, that’s driving these desperate people into those dinghies. Not, apparently, tyranny, nor civil war, nor the absence of the fossil fuels required to manufacture and run a modern agricultural infrastructure. It’s anthropocentric climate change, without which all of Africa, the Middle East, and south Asia would be as until recently it was, the Garden of Eden God intended.

All right, I’ve taken my shots. So time to cut and run. But I can’t. I can’t because much as my own moral intuitions tell me that Tom and Dick and Harry – and oh yes, now Jane – have the moral maturity of five year olds, I’m unsure that I can defend that intuition. Other than the vagaries of one’s personal exposure to some of the atrocities of human life, is there a principled way one can lexically order the moral demands being made on us, be they on our pocketbooks or even just our epiphenomenal caring?

Some people crusade against capital punishment, notwithstanding that more die in the crossing from Tripoli to Lampadusa in a day than by lethal injection in America in a decade. Some worry about a sarin gas attack in Syria that killed a dozen, notwithstanding that even a localized nuclear war would incinerate millions. So is it the numbers game we should be playing, like kids playing War with a split deck of cards?

I have a colleague who’s been suspended for exercising his academic freedom, and many of us are fighting to have him reinstated, notwithstanding he’s continuing to draw a six-figure salary, while in Turkey hundreds of thousands of civil servants have been sacked on suspicion of being less than fully sympathetic to the Erdogan regime. Women in Afghanistan are still chattel, but Canadians were obsessed by the Jian Ghomeshi trial. Should we have given the Ghomeshi affair a pass and railed instead about the Afghan women, or does Think Globally Act Locally have a say here?

Some people think that since ought implies can, likewise does concern. We should concern ourselves with what we can do something about. Otherwise we’re just hobbying. But that’s obviously too restrictive. We need to rehearse what we would do if we could do it in the event that some day we can do it, even if that day may or may not be over the horizon. Human beings anticipate, and make plans accordingly. Crossing that bridge when we come to it saves on mental resources, but it hasn’t always served us well.

So say I – and I suppose this is all that can be said – let each of us tend to his own moral garden. I’m out of line carping at Tom and Dick and Harry and Jane for being oblivious to what’s happening two hours down the coast from me. But then again, they’re out of line for carping at me for not tending to their garden. I understand that Jane just got carried away. But I can’t say the same of Tom and Dick and Harry. They should know better. One’s passion is no more license today for them than it was five hundred years ago for Torquemada.

IN MY UNQUALIFIED OPINION …

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If I asked your opinion of the various candidates in the upcoming municipal elections in Otterpiddle, Ontario, I’m guessing you’re going to say you don’t have one. In fact I’d be pretty gobsmacked if you did. But if I asked whether you thought the Holocaust did or didn’t happen, and you confessed you have no opinion on the matter, you’d have instantly made yourself a social pariah. It’s not just that you’re expected to have an opinion; it’s that you’re required to. And you’re required to have the right opinion, namely that it’s not a Zionist myth that six million European Jews were systematically murdered from 1939 to 1945.

But be honest. What more do you know about the Holocaust than you do about the candidates in the upcoming municipal elections in Otterpiddle? It’s true that you’ve been told more about the former than the latter. But by whom? Probably Mrs. Krabappel, your Grade Five history teacher, right? And how did she come by this information? Assuming she’s still alive and remembers, go ahead and ask her. And then ask the same question of her source, and so on. I’m guessing you won’t be able to trace the storytelling back to the original storyteller. But even if you did, how are you going to fact-check his report?

But, you say, surely you could research the matter on your own. By this I hope you don’t mean you can parrot what has itself been just parroted from still other parrotings, and so on. That’s what most of my colleagues mean by “I’ve done the research.” Rather I take it you mean doing actual first-order historical research. Well, as you say, you could do the research, if you had a couple of lifetimes to spare. But you don’t. And so you won’t. And yet, on the basis of no evidence whatsoever beyond this chain of say-so’s, you’ll remain absolutely convinced of the historicity of the Holocaust.

And you’ll do so against all comers. That is, if someone cites an alternative chain of say-so’s that she, given her epistemic situatedness, has as much grounds to trust as you have to trust yours, you’ll dismiss her out of hand as an obvious anti-Semite.

And so will I!

Why? Probably because as a Jew the Holocaust sits at the very core of my self-understanding. But you’re not a Jew. So why will you dismiss the Holocaust denier out of hand as an obvious anti-Semite? Because the Holocaust sits at the core of your self-understanding as well? I doubt it. I suspect you could get along just fine without believing in the Holocaust, were it not that the belief-community to which you belong has decided otherwise.

And why has your community decided as it has? Well, some revisionists chalk it up to an international Zionist conspiracy, a conspiracy intent on, and apparently quite successful at, cathecting your Christian guilt for something you didn’t do. To what purpose? To help establish and maintain the State of Israel. And the fact that you don’t believe them just confirms that they’re right, right?

But hold on. You do believe – do you not? – that the Kuwaiti government in exile made up the premie ward story to garner popular support in the U.S. for its invasion of Iraq in 1991, and that the Bush II administration cooked the intel on Saddam’s weapons of mass destruction so it could finish the job in 2003. So why do you believe some conspiracy stories but not others?

Because, as on any battlefield, some propaganda campaigns win the day and others don’t. Which is not to deny that some have truth on their side and others don’t. It’s to say only that you’re in no position to know which is which because you don’t have a couple of lifetimes to spare. And because it just isn’t all that important to you. All that matters is that you have your albeit-highly-unqualified opinion, and that it’s the one that keeps you in good standing with your peeps.

There’s a growing consensus, amongst scholars who have spent their lives studying such things, that the Exodus never happened. That it’s a myth. But it’s been a myth worth living by, both for Jews and – judging by the lyrics to many of their spirituals and the heart-swelling rhetoric of Martin Luther King – American blacks alike. Not unlike the Cross and Resurrection for Christians and the Alamo for Americans, the Exodus is for us Jews our foundation myth. And the Holocaust is just a renewal of that myth. One which I happen to believe is true. But then I would, now wouldn’t I?

Impressions to the contrary notwithstanding, this is not a declaration of historical skepticism. I’m not saying that the past cannot be known. All I’m saying is that what we think we know – and by the ‘we’ here I’m referring to you and me – we only believe. And we believe what we believe about the things we’re required to have a belief about because we’re required to have a belief about them. And because we’re required to have this belief about them rather than that one.

And why do we do this? Because we have no other choice! We don’t have the resources to do anything more than parrot what we’re told by those who are holding us to account for our beliefs. Nor are they allowing us to suspend judgment. We are facing what Intro to Critical Thinking teachers call an ad baculum. “Believe what I say or face the consequences!”

But an ad baculum is not a fallacy. It would be a fallacy if the objective of belief acquisition was truth. But not if its objective is what belief one is well-advised to adopt. In fact I can’t think of anything more instructive in the adoption of a belief than the consequences of doing so. So all of belief acquisition is driven by an ad baculum. And that’s precisely as it should be.

But if this is right – and it is! – then it applies not just to beliefs about the past, but also to those about the present and the future. The tribe upon which I depend for my survival, delectation, and companionship, is demanding that I have an opinion about all kinds of things, not only about the past, like the Holocaust, but also about the present, like vaccination safety, and about the future, like anthropogenic climate change.

These are all things about which I know nothing. These are all things about which I will forever know nothing. But fortunately they’re all things about which I’m not being asked to actually do anything, other than believe what I’m being asked to believe about them. That is, I’m required to believe in global warming, but I’m not required to do anything more about it than my global warming advocate peeps require of themselves, which is, so far as I can tell, absolutely nothing. In other words, belief is cheap. In fact it costs me nothing. So I might just as well fill my pantry.

Okay, so that’s me. But what about the themselves-parrots who’d have me parrot them? Their pantries are full too. They’ve got their requisite beliefs about vaccinations, climate change, the stupidity of Donald Trump, the irredeemable evil of the Koch brothers … There’s not an issue in the news they don’t have their tribally sanctioned position on.

But they seem to want something more. They want respect. They demand it. They demand that I join them in their delusion that they’ve filled their pantry with honest epistemic toil. I try to give it to them. Honest I do. And more often than not I can pull it off. But every now and then I can’t do it. Every now and then I just can’t stop myself from blurting out, “The Emperor has no clothes!”

And then, sometime last fall, it hit me. Call them out on their nakedness, but do it in a blog. After all, no one’s going to read it. Right?

CHALLENGE versus RIDICULE

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Much as I’d sometimes like to be, I’m not a knee-jerk civil libertarian. I understand that the maintenance – and before that the promotion – of a civil society sometimes requires limits to freedom of movement, of association, of expression, even of thought. But I want to see if I can draw some lines here, beyond which state interference with some of these freedoms undermines rather than protects the kind of society we want.

I could include in this analysis interference authored by agents other than the state, for example an LGBT group shouting down a homophobic speaker. But I’m going to leave that kind of thing outside of my analysis, not because being shouted down can’t sometimes be even more silencing than governmental censorship, but because the most one can do is entreat these viglante would-be censors to let the man have his say. That is, one can hardly protect freedom of speech by violating the freedom to protest what’s being spoken.

What we can try to do, of course, is make attendance at certain events conditional upon respect for certain protocols, as we do, for example, in a university classroom. “If you’re not going to allow the speaker to speak,” we might say, “you won’t be allowed in the door. And if you flout these conditions you’ll be forcibly removed from the hall.” But this hasn’t proven all that effective, has it? Protesters see to it that the commotion of their removal does as much to silence the speaker as would just letting them shout him down.

We certainly don’t want speakers preaching only to the converted. We want to be proselytized to. We just have no practical way – neither in the town square nor in church – to silence those who would silence the preacher. So as I say, the best we can do is entreat. We’ll listen respectfully to what you have to say if but only if, mutatis mutandis, you do likewise.

So that said – and that’s really all that can be said about this kind of vigilante censorship – let me start with the actual case that’s set me on this exercise.

* * *

Down the hall and around two corners, I have a colleague named Tony Hall, who’s publicly and insistently conjectured that 9/11 – and pretty much every terrorist attack since – has been the false flag operation of the Israeli government, and/or of Israel’s not-so-rogue neocon allies within the American government. I say ‘conjectured’ because even he admits he doesn’t have the smoking gun. He’s just – how shall I put this? – a tad more latitudinarian in his inferencing than most pundits would allow themselves. So needless to say Tony bears the brunt of a lot of eye-rolling, a goodly share of it, I confess, from me.

Actually I should have said I had a colleague down the hall, because on October 4th of last year, the President of the University of Lethbridge, one Mike Mahon – in a lame attempt to I know not what, but I’m guessing it was to protect the University from the embarrassment of Tony’s online idiocies – took it upon himself to suspend Tony from any and all of his duties and privileges.

Of course in so doing Mahon has incurred far more embarrassment for the University, his action having attracted the censure of pretty much every academic in the country. At the end of the day heads will roll, and one of them won’t be Tony’s.

Now then, I’m not asking whether Mahon thought he was within his rights – perhaps even duty bound – to do what he did. Nor whether he was within his legal rights, as defined by the collective agreement between the University and the Faculty Association. That issue will eventually be resolved in court. And, in the highly unlikely event the court sides with Mahon – which it won’t – it’ll be resolved by the political action of members of faculty, myself included, who’ll take whatever measures necessary to put an end to Mahon’s presidency. Rather I’m asking the philosophical question of whether the likes of Tony Hall should be silenced for the likes of what he’s publicly and insistently conjectured.

The obvious answer is no. And in this case the obvious answer is the right one. Tony is an historian. Not a very good one, perhaps, but an historian nonetheless. It’s his job to challenge the received view of history. Not only in so doing is he protected by his role as an academic, but he’s protected as well by the Supreme Court of Canada’s ruling in Zundel (1992), which was that what was then s. 181 of the Criminal Code pertaining to the spreading of false information, was unconstitutional. It was ruled unconstitutional for a number of reasons, not the least of which being that the Court did not consider itself – and so a fortiori not any inferior court – competent to pronounce on matters of historicity.

The court could have – and in fact some courts have – taken (what’s called) ‘judicial notice’ of some fact or other, historical or otherwise. But the taking of judicial notice – at least under British common law – does not preclude a defendant from challenging that notice. In other jurisdictions – the ones you and I rightly condemn – such a challenge is itself a criminal offense. But I’m assuming – I know, assuming makes an ‘ass’ of ‘u’ and ‘me’ – that we don’t want to join those jurisdictions.

By contrast, in Keegstra (1990), the same court ruled that s. 319 of the Criminal Code pertaining to the incitement of hatred, is constitutional. The distinction, then, is between

1) challenging some received fact –

which you and I agree is to be if not encouraged then at least tolerated – and

2) incitement to physical harm, or even, in some cases, mere deprecation –

which we think is actionable, provided such action isn’t overridden by its invasiveness.

But this is where things get tricky. Prohibition against physical harm is clearly among the conditions sine qua non any civil society. And so since, as Thomas Hobbes observed, “a man’s actions proceedeth from his opinions.” – well duh, why else would one bother to have opinions?! – incitement to physical harm is actionable as well.

Well sure, provided such incitement has a demonstrable track record for inducing such harm. For example, I’ve joked with my students that we should kill all Scots, my argument being, “Rolled oats in sheep gut? Gee, doesn’t that sound yummy?!” But this is not incitement. Neither is telling them that all Mexicans are rapists, because it’s clear I’m just making mock of Donald Trump. But telling some people in this town, even if only tongue in cheek, that we should’ve exterminated the Blackfoot rather than signed treaties with them, could have consequences both reasonably foreseeable and serious. Fortunately prosecutors understand the role of context, and if they don’t judges do. So in Canada at least, political correctness has yet to put the kibosh on humour, as it’s done in some more ‘enlightened’ jurisdictions.

* * *

But deprecation is a trickier matter. It’s true that we live in a symbolic universe. Names can hurt me, in some cases far worse than sticks and stones. As the Court ruled in Butler (1992), upholding s. 163 of the Criminal Code pertaining to the purveying of pornography, there need be no preponderance of evidence that pornography increases the likelihood of sexual assault. It’s sufficient that it undermines the perception of women’s equality. By parity of reasoning, then, under s. 319 a court needn’t find that anti-Semitism threatens a Jew’s physical safety. (After all, that would require there’d been a history of convictions for racially motivated assault where that racism was incited by the activities of people like the accused currently in the dock.) Rather the court need only find that the racial incitement in question undermines the perception of Jews as citizens in as good standing as anyone else.

Fair enough. But the law against incitement to deprecation has a prima facie strange logic to it. Nothing in the criminal code stops me from deprecating you for being you. “That So-and-So, she’s such a bitch!” Not actionable. Nor does it stop me from inciting others to deprecate you for being you. “Don’t hang out with that bitch!” Not actionable. Nor does it stop me from deprecating you because of your race. “Those damn niggers, always suckling from the public tit!” Not actionable. It only stops me from inciting others to deprecate you because of your race. And this might seem odd. If it’s illegal to incite deprecating you because of your race – because, presumably, it undermines the perception of your equal standing – why isn’t it illegal just to deprecate you because of your race?

The answer is as simple as it is instructive. It’s simply too invasive to criminalize my privately deprecating you because you’re a ‘bitch’, or because you’re a ‘nigger’. But because incitement is, by definition, a public act, a) it’s more likely to be a multiplier of harm, and b) it can more readily and less invasively be monitored.

Are these defensible considerata? Of course they are. But the trickiness remains. For surely we don’t want to say – and in fact we don’t say – that every group is to be protected from being publicly deprecated. After all, some groups, like the Westboro Baptist Church, deserve to be. And the public deprecation of others, like the KKK or the Neo-Nazis, might actually be needed for the maintenance of the kind of civil society we want.

It goes without saying that we can with impunity publicly deprecate those who cannot publicly deprecate with impunity. Otherwise no judge could wag a finger at the Neo-Nazi or KKK member she’d just convicted of a hate crime. And it would seem too, then, that we can publicly deprecate with impunity those who themselves publicly deprecate with impunity, like the ‘fag-hating’ Westboro Baptist Church. And because we fag-lovers can with impunity publicly deprecate them, they can likewise with impunity publicly deprecate not just ‘fags’ but also us.

And this strikes us as only fair, notwithstanding that in publicly deprecating them, we clearly intend to undermine their standing as equals in the community. So, it would seem that, as in Orwell’s Animal Farm, all animals are equal but some animals are more equal than others. You can’t with impunity publicly deprecate me for being Jewish, but with impunity I can – and regularly do – publicly deprecate you for your Christian fundamentalism.

Is there some principle that can ground this asymmetry? Or is it simply the product of history and clout?

Needless to say, I’d like to say the former. And I’m certainly going to give it a try. But at the end of the day this might turn out to be one of those don’t-ask-don’t-tell kind of questions. Let’s see.

* * *

If the asymmetry lies anywhere, surely it lies in the distinction between challenge and ridicule, or rather ridicule as instrumental to challenge and ridicule as an end in itself. If you want to challenge my Judaism, you might to that end, and rightly so, ridicule it. Even God knows it’s a ridiculous religion! But mocking to no purpose other than ridicule the (even more clearly ridiculous) way some Orthodox Jews dress and comport themselves, is another matter entirely. Likewise, then, to point to the unsustainability of Christian biblical literalism is precisely what I do and should do in my Phil of Religion classes. But telling Christ-on-the-Cross jokes – some of which, c’mon, admit it, really are hilarious – I only do in private.

Likewise only in private do I tell Holocaust jokes. But Amy Shumer told one on stage. Does the fact that she’s Jewish mean that she’s allowed? If so, then so would I be.

But jokes told by Jews about Jews, or blacks about blacks, don’t challenge anything. They certainly don’t challenge stereotypes. In fact they depend on them. So why are they allowed, indeed welcomed? Because they’re designed to endear ourselves to ourselves and others. And that’s precisely why they work. But the same joke told by a gentile or a white has a very different meaning.

The question, then, is whether we can take our understanding of racial self-mockery and import it into our jurisprudence. And the answer seems to be that we can. A white man asking “Why can’t these inner city blacks speak English?!” falls short of inciting hatred of blacks, but asking “Why don’t they get a job?” or “Why don’t black men take care of their own children?” is getting close. For the issue, remember, is not incitement to physical violence, like “We just need to kill all them niggers!” It’s whether such publicly posed rhetorical questions deprecate black men. And arguably they do.

Similarly, then, asking “Why don’t those Hasidic Jews snip those ridiculous ringlets?” – they’re called ‘payot’, by the way – is not a challenge to the Orthodox interpretation of Leviticus 19:27. Most people who ask this question have never read Leviticus. Nor, for that matter, any of the Hebrew Bible. In fact it’s not a question at all. It’s a remark. And that remark is not that Hasidic Jews are ridiculous. (They are, by the way, but that’s not what’s being said.) The way my dog sometimes sleeps on her back is ridiculous. Payot are not. My dog’s posture symbolizes nothing. Payot symbolize a rejection of the gentile aesthetic, and so by implication everything else gentile. They are a “Fuck you!” to everyone who’s not of the tribe. They may not be intended that way. But every Hasidic knows perfectly well that’s how it’s taken. So if Hasidim can with impunity publicly hate gentiles – and they do! – why can’t gentiles with impunity publicly hate Hasidim? Well, they do too. And we allow it.

So, it would seem, gratuitous ridicule is not the marker we’re looking for in determining actionability. We need something else.

* * *

One question we might ask is whether there might be something doctrinal to a religion – or other ideology – that entitles us to our hatred of it. So, for example, Hasidic Jews are not going to go war to defend their host country from its enemies. So we can with impunity hate, and advocate hate, against any group that rejects our civic values. And this, presumably, would include immigrants who would have themselves and us governed by Sharia law.

Note that we’re not challenging their fidelity to Sharia law, so it’s not our being critical of it. And yet hatred of Moslems for wanting to be thus governed is likewise non-actionable. So, as it turns out, contrary to my original conjecture, we needn’t appeal to the notion of challenge to immunize ourselves from a charge of hate speech.

In fact my suspicion is that asking what we need to appeal to for such immunity is asking the wrong question. Rather we should be asking what the government needs to appeal to to withdraw that immunity from us. And the answer, I suspect, is the one proffered by Hobbes in support of his Sixth Power of the Sovereign. To explain:

From the most conservative to the most liberal, all philosophers of law are of a mind that all is permitted save what is prohibited. There’s a very simple reason for this. There isn’t enough ink the universe, let alone on the planet, to write down all the things we can do. Moreover, from the most conservative to the most liberal, all philosophers of law are of a mind that the state must have a reason to prohibit the behaviour it prohibits. Where they differ is over what can count as such a reason. John Stuart Mill thinks the state should only interfere to prevent harm to others. John Locke thinks it should confine itself to enforcing the natural law. And Thomas Hobbes thinks it’s whatever it takes to maintain the peace. That Mill and Locke are wrong and Hobbes is right I take to be a duh. So I’m entitled to move on to …

But if, as Hobbes thinks, the question is what’s likely to keep the peace and what’s likely to disrupt it, then we needn’t appeal to any ‘principles’ whatsoever. It’s a purely empirical question, and as such it could vary from place to place and from time to time. For example, I don’t challenge haggis, I ridicule it. But we could imagine circumstances – could we not? – under which such ridicule would constitute actionable deprecation. Imagine that Scotland secedes from England, as well it might, over Brexit. A bloody war ensues. A highly fragile peace agreement is reached. Then my comments about haggis aren’t so funny any more, are they?

If this is right – and I think it is – then the question we have to ask is not whether Tony Hall’s saddling the Israelis with all these attacks is likely to cause hared of Jews. I’m a very hateful person. I hate all kinds of people. But I’m not going to go to war against any of them. Nor am I even going to publicly deprecate them. I’m just going to silently seethe. No harm in that. And, say all three of Mill and Locke and Hobbes, no harm no foul.

So rather the question has to be whether saddling the Israelis with all these attacks is likely to cause either physical harm to Jews-qua-Jews, or at least deprecation of Jews-qua-Jews, as distinct from physical harm and/or deprecation of those putatively involved in these attacks. But surely those who are involved, assuming they are, should be punished, or at the very least deprecated. So the charge against Hall has got to be either that a) these people are being falsely accused by him, and therefore unjustly exposed to violence or deprecation, or else b) whether falsely accused or not, his accusations are exposing them to vigilante justice or deprecation.

But neither of these charges against Hall makes any sense. No one could be charged with 9/11 without first being suspected of it. And the police hold no monopoly on suspicion. Nor on publicizing their suspicions. And besides, who exactly is being exposed to violence or deprecation by Hall publicizing his suspicions? Presumably the government of Israel. But surely every government on the planet exposes itself to violence or deprecation. That just goes with the territory of being a government.

Of course every government on the planet makes it a criminal offence to commit violence and/or incite violence against it. It would be an odd government indeed that didn’t. But so far as I know, Hall hasn’t advocated violence against the Israeli government. And even if he had, advocating violence against the Israeli government is not an offense here in Canada. In some countries, by the way – North Korea, China, Turkey, to name just a few – it’s also a criminal offense to deprecate the government. But I don’t think we’d want to express our solidarity with these regimes by going after Hall on their behalf for deprecating them.

So when all is said and done, it strikes me that the case against Hall is dead in the water. It’s dead in the water not because s. 319 of the Criminal Code, Canada’s hate speech law, is incoherent. It’s dead in the water because Hall hasn’t contravened it and, given his particular beef, which is political rather than racial, he couldn’t contravene it if he tried.

THE TONY HALL CASE REVISITED

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I made a stab at this in my blog in an earlier post entitled “Holocaust Denial and Anti-Semitism”. Since that post, an internal investigation of an internal complaint against Tony Hall has exonerated him, and the Administration’s complaint against him to the Alberta Human Rights Commission has been rejected, both pretty much on the same grounds I laid out in that post. But now I want to go a tad deeper into the issue. Not the issue of denying the Holocaust or of being an anti-Semite. On those scores I’ll stand by what I said in that earlier post. Rather what I want to know is this: Assuming I wanted to deny the Holocaust or reveal myself as an anti-Semite, how would I go about it?

Being that I’m Jewish it’s unlikely I’d want to – though there are Jews who would and have. Rather I’m asking because – see that earlier post – my colleague is being accused of both, and I want to know if there’s any way – any way at all – that accusation could stick.

To this end I want to grant to his accusers everything that can be granted, beginning with the concept of conversational implicature.

Suppose you ask whether I think it’s going to rain tomorrow and I answer, “Is the pope Catholic?” Have I asserted that it’s going to rain? Yes I have. That’s because “Is the pope Catholic?” is an expression we use to say yes to whatever question was just asked.

Suppose you ask whether so-and-so is attractive, and I answer that she has a wonderful personality. Have I changed the subject? No I have not. I’ve answered your question in the negative. To claim afterwards that I never said she was ugly would be disingenuous. I did say it, even though I didn’t ‘say’ it. One can say without ‘saying’. In fact one can say without ‘saying’ anything at all.

But to know that “Is the pope Catholic?” means yes to whatever question was just asked requires that one be party to that convention. By this I don’t mean one must think it’s a good convention. Some overly devout Catholic might think it’s disrespectful to the pope. All I mean is that one is aware that the convention is in place. So if I answer a question with “Is the pope Catholic?”, I know perfectly well that I’ve just answered in the affirmative to the question that was just asked.

But it’s not always easy – is it? – to know what conventions are in place, or at least what conventions are taken to be in place by one’s interlocutors. For example, a couple of U.S. elections back, I was surprised to learn that Democrats take “New York values”, when spoken by a Republican, to be code for Jewish values. And I suspect it came as a surprise to a lot of Republicans as well. And so the question naturally arises: Are we accountable for what was said, or for what was heard?

Certainly in the case of “Is the pope Catholic?” and “She has a wonderful personality!”, what was said and what was heard are one in the same. But what about “The Holocaust, like every event in history, should be open to new research, and our understanding of it open to revision.”? In the same way that Democrats take “New York values” to be code for Jewish values, some Jews – and apparently, with a little urging, some of their gentile supporters too – take that statement as code for “The Holocaust is a Zionist myth!” And one of the to-be-made-explicit premises underpinning Tony’s accusers’ argument is going to be that Tony knew this. Or if not, then – like the reasonable man on the Clapham omnibus – he should have known it, and therefore what he said – said without scare quotes – was that “The Holocaust is a Zionist myth!”

Let’s suppose, however implausibly, that they’re right. Not about Tony saying that the Holocaust is a Zionist myth, but that the convention is in place and that Tony should have known it. How, then, could Tony say that “The Holocaust, like every event in history, should be open to new research, and our understanding of it open to revision.” and mean that the Holocaust, like every event in history, should be open to new research, and our understanding of it open to revision!? If his accusers don’t want our understanding of the Holocaust to be open to revision, then they’ll decide that any way of saying it will be code for “The Holocaust is a Zionist myth!” And that’s precisely what they’ve decided. It’s a great trick, if anyone’s stupid enough to let them get away with it. And apparently some people are that stupid. Let’s just hope no judge is among them.

But now let’s suppose, albeit counterfactually, that Tony had said – and by said I mean said – that the Holocaust is a Zionist myth. How exactly does this count as hate speech? What would have to be shown – and this is an empirical matter – is not that Holocaust denial is associated with hatred towards Jews – that, I think, can be granted – but that it causes hatred towards Jews. And this would require an experiment involving some kind of control group. Take a non-biased sampling of a hundred people, disabuse half of them of the historicity of the Holocaust – including, if you like, that it was a Zionist invention to guilt the world into backing what would become the State of Israel – and see whether they, but not the control group, begin to exhibit signs of hating Jews. My guess is that most of the disabused group will be gobsmacked by the brilliance of the subterfuge, just as I would be if I were convinced that 9/11 was the work of Mossad.

In a world of realpolitik, the exposure of subterfuge has never of itself been grounds for hatred. At most it adds insult to what’s already regarded as an injury. So no, Holocaust denial may be a consequence of anti-Semitism, but it can’t be the cause of it. So even if Tony were denying the Holocaust – whatever that might mean – that would not constitute hate speech.

All right, so Tony’s off the hook vis a vis his alleged Holocaust denial. But what about dumping 9/11 – and the lion’s share of the little 9/11’s that followed in its wake – on Mossad?

As often as not Tony’s trutherisms are expressed as conjectures rather than assertions. But as we did earlier, let’s grant, for the sake of argument, that conjecture can be taken as code for assertion. So by conversational implicature, Tony has accused agents of the State of Israel of murdering thousands upon thousands of noncombatants in the furtherance of the interests of that state.

But hang on a minute. I make the same assertion every day. Well, okay, maybe not every day. But certainly whenever the subject comes up. I’ve made the same assertion, mutatis mutandis – and I’m hardly alone in these accusations – about the United States, about England, about France, about El Salvador, about Myanmar, about Syria … In fact pretty much about every state in the world. So clearly there must be more to hate speech than the banal observation that rulers of countries sometimes feel a need to kill people, people both outside the country they rule and within it.

Some of these accusations will turn out to be false. But the spreading of false information, other than in the service of fraud, is for very good reason not an actionable offence, at least not in Canada. And even if it were, the onus would be on the state – or in Canada the Crown – to prove beyond a shadow of a doubt that Mossad wasn’t involved in 9/11. And how could it do that? It couldn’t. Even if some Israeli agent was acquitted in a court of law, that would show not that he was innocent, but only that there was insufficient evidence to convict.

So if Tony is guilty of hate speech, the truth or falseness of his various trutherisms is irrelevant. What’s needed is the connection between claiming malfeasance on the part of the Israeli government and promoting hatred of Jews, in a way that claiming malfeasance on the part of, say, the American government, does not constitute the promotion of the hatred of Americans, the latter being, of course, ridiculous. That is, heaven forefend we should think that criticism of a government is criticism of its citizens. On the contrary, don’t we regularly criticize a government for beings at odds with the druthers of its citizens?

About a fifth of the Israeli citizenry are (mostly Moslem) Arabs. Of the four fifths remaining most are Jews. But about a third of these are staunchly opposed to Netanyahu’s ultra-Zionist policies. So even if we hold those who support Netanyahu responsible for those policies, that’s about the same percentage of the Israeli population as was the percentage of the American population that supported Obama. Did we hold the American people – Democrats and Republicans alike – responsible for the policies of the Obama administration? And even if we did, did we, as a consequence, hate all Americans?

So even supposing Tony were able to convince us of his trutherisms, how would this constitute hate speech against Jews? Against the Jewish perpetrators of these attacks, perhaps. But then surely, if your loved one was in one of those towers that morning, or in that nightclub in Paris that evening, that hatred would be warranted. But against Jews-qua-Jews? And if Jews-qua-Jews, then surely the official 9/11 story likewise promotes hatred of Arabs-qua-Arabs, or perhaps even Moslems-qua-Moslems. And yet that’s precisely what defenders of the official story take pains to deny that their story should promote.

So having given them everything they could ask for, what’s left to Tony’s accusers? Well, apparently, Tony’s conjectured – remember: that’s code for he’s accused – B’nai Brith of having false-flagged that virulently anti-Semitic attachment to one of his Facebook posts, the attachment that Tony claims got this smear campaign against him off the ground. But once again, how does this accusation constitute hate speech? And that question stands as a rhetorical one whether B’nai Brith was involved or not.

That is, let’s suppose that I did it. After all, I’m Jewish, and many if not most Jews are staunch Zionists. So it’s perfectly plausible that I did it to smear that anti-Zionist bastard Tony Hall. Now that I’ve confessed I should hardly be surprised that Tony now hates me. But why would Tony hate my brother, who happens to be a staunch anti-Zionist Jew?

All right, now let’s suppose I didn’t do it. It was done by some pimply-faced never-out-of-his-parent’s-basement adolescent shit-disturber for the sole satisfaction of disturbing shit. Probably the same pimply-faced never-out-of-his-parent’s-basement adolescent shit-disturber who’s photo-shopped Pope Francis giving head to Bashir al Assad. So Tony’s mistaken about me. Does his falsely accusing a Jew of malfeasance promote hatred of Jews?

Well, it would, I suppose, if Tony were saying – or for that matter even just saying – that wherever there’s malfeasance, chances are there’s a Jew behind it. And to be fair to his accusers, Tony does sometimes come across as thinking this. But according to his narrative it’s not Jews – or least not Jews-qua-Jews – who are trying to take over the world. It’s the point-zero-zero-one-percent. These neocons and Zionists just happen to have found common cause, at least for now.

But this idea that there’s a worldwide conspiracy of point-zero-zero-one-percenters – see my entry on the subject – is by no means unique to Tony. Most of my colleagues in the Philosophy department – being almost as idiotic as Tony – share this idiotic view. So if Tony’s going down, oh please please please, take my colleagues with him!

Your Honour, I move to dismiss. It’s not that my client is innocence of the charges against him. It’s that those charges – I think the legal term is – fail to disclose an offense.

TWO LECTURES YOU WON’T GET AT LAW SCHOOL

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 LESSON 1: NATURAL LAW AND POSITIVE LAW

There are, among the Great Unwashed – that’s everybody except me, by the way – some pretty serious misconceptions about law. Some people, including some philosophers, think there’s something called natural law, by which they mean rules that govern how we should behave – and would govern how we should behave – even in the absence of any kind of civil authority to promulgate those rules and to enforce them. Thus, for example, if it’s wrong that “a man should lie with a man as with a women”, then it was already wrong, even before the law of the land thought to outlaw it, as it did in Canada until 1982; and it remains wrong, even after the law of the land now permits it, as it does in Canada since 1982.

Let’s put the ontological status of these rules aside for a moment. The plausibility of this view hangs on how we might come to know what these rules are. Presumably we don’t want to let someone just pull them out of his ass, because there’s not a whole lot that can’t be pulled out of one’s ass, including that it’s wrong that “a man should lie with a man as with a women.” So to avoid this reaching in and just pulling out whatever one wants, some people think a law is only a law if it’s pulled out of God’s ass.

But these Divine Command Theorists, as they’re called, don’t like that characterization of their position, and so they modify it a bit. God wouldn’t be just pulling it out of His ass if instead He had some kind of privileged epistemic access to these rules. So their claim is rather that there are things God knows that we don’t. Or at least that He knows them more reliably than we do.

But in that case we can’t put the ontological status of these rules aside. We need to know what kinds of things are such that some observer, say God, can see them but the rest of us can’t. So most natural law theorists – Thomas Aquinas, John Locke, and so on – hold that the rest of us can see them, if only we take the trouble to look.

What would we be looking for? Well, remember that whatever they are they have to be such that having seen these rules we’d consider ourselves subject to them. That is, they have to be such that they’re normatively incumbent upon us. Well then, how ‘bout they’re the rules which, experience tells us, best serve our survival, delectation, and civility? That would make them empirically discoverable by pretty much any of us. And so we wouldn’t need God to tell us not to “lie with a man as with a woman.” We’d have figured that out ourselves.

Or, perhaps, we’d have figured out that that would be a stupid rule. That is, since these rules are empirically discoverable, and hence not self-evident, it shouldn’t surprise us that – contrary to Aquinas and Locke and thinkers of their ilk – reasonable people can and do disagree about what they might be. Not only that, but the rules might change over time. Or they might differ from place to place. Where there’s no refrigeration – as was the case three millennia ago – pork and seafood don’t keep. Now we do have refrigeration. In the absence of birth control premarital sex wasn’t such a great idea. Today saving yourself for marriage is just an invitation to disappointment. And so on.

Nevertheless, in a given place at a given time, there are better and worse decisions about what rules we should be imposing on each other, and these can be convincingly argued for. There is no case to be made that a man ought not to “lie with a man as with a woman.” There is no case to be made – at least here in the West in the early part of the 21st Century – that a woman ought not to be free to end a pregnancy or carry it to term. For the issue, recall, is not what may or may not be “an abomination in the eyes” of some real or imagined god, or what may or may not be the metaphysical status of the fetus. Rather it is, as already noted, what best serves our survival, delectation, and civility. I suspect that at this point in our history – and thankfully so do most of our parliamentarians – recriminalizing homosexuality and abortion would just provoke civil war. And as Thomas Hobbes observed, civil war is not exactly conducive to survival, delectation, and civility.

But the stupidity of recriminalizing homosexuality and abortion is a contingent matter. That is, we can easily imagine times and places – because there have been times and places – where heterosexism, pro-natalism, even slavery, made perfect sense to us. I suppose, as did Locke, the only rule that would be nigh-universally insisted upon would be respect for private property, without which civil society would be impossible. But everything else, including how property is to be assigned in the first place, is pretty much up for grabs.

Here again, is there a fact-of-the-matter about how the dividends of civil society are best divvied up between us? Yes in the sense that there’s a mind-independent fact-of-the-matter. But no in the sense that any of us – least of all any of these self-styled economic experts – has apodictic access to that fact. And it’s because there’s no universally shared view on how best to divvy up the goodies of civil society – and yet these goodies must nonetheless be divvied up – that we have (what we call) positive law.

Most positive laws are enacted with an eye to what our rulers take to be the best-making features of this divvying up. But some positive laws, like whether we drive on the right or the left, are simply solutions to pure coordination problems, and so can be entirely arbitrary. They’re what we might call merely regulatory laws. So, why do we need positive (i.e. posited) laws? Because without solutions to these coordination problems there could be no cooperative enterprise at all, and hence no cooperative dividends to divvy up.

It’s true that some people would prefer we do things this way rather than that, and others that we do them that way rather than this. So Hobbes acknowledged that, relative to any alternative positive law, every positive law produces winners and losers. But, he pointed out, relative to any alternative to positive law, every positive law produces nothing but winners.

So insofar as a) there’s nothing ‘natural’ about natural laws, that b) they’re nothing more nor less than what experience tells us are good rules of thumb by which to arrange our interpersonal affairs, and that c) any positive law, if it stands a hope of being respected, will likewise have to be sensitive to these rules of thumb, there’s really nothing left for natural law to be. Which is not to say that all rules are posited. It’s to say only that some of the rules by which we get along with one another have to be. And those that don’t, like queuing up for coffee, take care of themselves.

LESSON 2: THE SOVEREIGN AND THE HIGHWAYMAN

In the 19th Century, John Austin proposed (what came to be called) the command theory of law. And this resurrected a worry that had been around for centuries. Baruch Spinoza was exercised about it back in the 17th Century.

The difficulty with thinking of law as “the commands of the sovereign” is that there doesn’t seem to be a way to distinguish the commands of the sovereign from the demands of the highwayman. This is because sovereigns typically come by their power over us, and maintain that power, pretty much the same way highwaymen do, namely at the point of a gun, or by what Hobbes called acquisition (a.k.a. conquest) rather than by institution (a.k.a. election.)

More recently, in The Concept of Law (1961), H.L.A. Hart set himself to task providing that distinction. According to Hart, a command/demand is a law if and only if a) it’s embedded in a legal system, and b) those subject to it give it uptake, by which is meant they consider themselves subject to it. This doesn’t mean they need consider the law in any wise legitimate. Nor need they consider themselves morally obligated to obey it. It requires only that if they’ve defied the law they acknowledge that it was the law that they defied. So, for example, were it not that the smell of marijuana makes me nauseous I probably would smoke the stuff, because I consider its prohibition an illegitimate law. But I speed, notwithstanding I regard speed limits as perfectly legitimate. Neither the French during the War nor the Palestinians today consider the Nazi and Israeli occupations legitimate But that has nothing to do with whether resistance is or is not legal, except to say it might be illegal under Nazi and Israeli law, and yet perfectly legal under the laws of war.

And this raises the central question of the relationship between law and morality. Can we be simultaneously subject to two conflicting normative regimens? Apparently not, at least according to Jesus. “Render unto Caesar that which is Caesar’s, render unto God that which is God’s.” Or, less theologically, “that which is dictated by your conscience.”

Some philosophers of law – Justice Devlin, for example – hold that if the law requires us to do something egregiously immoral, it can’t be a law, and therefore one needn’t obey it. Others, including Hart, insist that it’s a law all right, but some laws ought not to be obeyed. What’s at issue between them, it seems, is whether one minds being a criminal. Devlin does, Hart doesn’t. Which is a tad ironic – is it not? – since it’s Hart, not Devlin, who thinks it’s being a law requires my giving it uptake.

In any event, what distinguishes the commands of the sovereign from the demands of the highwayman is that in the case of the former, but not the latter, we give it uptake. This does some work, but not enough. We still need to know at what point might the demands of a highwayman become the commands of a sovereign, and vice versa. That is, is the IDF in the West Bank and Gaza and the Golan an occupier or merely a highwayman? If the former then Netanyahu is right to call Hamas criminal terrorists. (Though, as we’ve just seen, on Hart’s account that can be a badge of honour.) But if the latter – if the IDF are just thugs – then the ‘occupation’ can rightly be treated as one would a home invasion. As with the Stand-Your-Ground laws in many parts of the U.S., feel free to just shoot the fuckers!

And those collaborating with these thugs are likewise fair game. So insofar as international law – assuming such a thing exists – is largely derived from Just War Theory, and insofar as 9/11 would seem to have satisfied the just cause condition, it was a perfectly legitimate military operation.

Or at least it would have been were it not for the non-combatant immunity condition. That is, international law has no problem with the Palestinian resistance targeting Israeli and American soldiers. But to deliberately target civilians is a war crime, right?

Well, maybe not. During the Indian Wars in the American West, their soldiers burned out ‘our’ settlers, and ‘our’ soldiers burned out their villages. Were these war crimes? Well yes, as long as you grant that not all crimes are created equal. That is, it’s hard to imagine how the West could have been won without such ethnic cleansing. In fact conquest invariably requires the targeting of non-combatants. How else can they be induced to “Move along now!”? And so if the targeting of non-combatants is a war crime, conquest is a war crime. But since, Antarctica aside, there isn’t a square inch on the planet that hasn’t been, at one time or another, conquered, the history of civilization is just one extended war crime. But if everything is a war crime then nothing is.

For most of human history the conquest of one people by another fell outside the range of any moral assessment. Today, for some reason I’ve never understood, conquerors have to tell themselves they have justice on their side. And so when the not-yet-entirely-vanquished hit back – as they’ve done in Palestine and Afghanistan and Iraq – they’re dubbed criminals and terrorists. This is hypocrisy to be sure, not to mention a tad unseemly. But what necessitates it, if not this puerile need to think oneself just and therefore so terribly hard-done-by?

There is no entitlement to the other guy’s land. But then neither is there entitlement to our own. As Hobbes put it, it’s ours “onely for so long as [we] can keep it.” Any other notion of ours-ness is the invention of children!

Of course it must be pointed out that though respect for the law – especially as it pertains to what belongs to whom – is not incumbent on those who decline to give it uptake, the law, to count as such, must treat those who don’t give it uptake the same as it does those who do. That is, one can say to the judge that “I don’t recognize the jurisdiction of this court.” And that might well be true. But if any judge took that as grounds to remove the matter from his court and refer it to the laws governing prisoners of war, then every accused could rightfully demand to be treated as a prisoner of war rather than as a criminal. Then, the next morning, he could simply concede defeat, and so an end to hostilities, and so invoke his right to go home. So we need a way to distinguish between a captured soldier and a convicted criminal. And that can’t depend on how the captive self-identifies.

This isn’t just an issue in jurisprudence; it’s the issue. And it came to a head with Bobby Sands during the Troubles in Northern Ireland. To this day the issue has never been resolved. But how can it be? Jurisdiction isn’t something about which there’s a mind-independent fact-of-the-matter. Rather it’s something that’s simply declared. But then the highwayman can declare himself authorized as readily as can the judge. So, it would seem, a law is a law just in case both a) the jural agent in question declares himself competent to enforce the rule in question, and b) the subject in question gives uptake to that declaration. Otherwise, no matter how much one’s robes might attest to his holding an office in a legal system, for all intents and purposes he remains nonetheless a highwayman.

It could be argued – indeed it has been argued – that what makes the highwayman a highwayman is that there’s someone, namely the sovereign, who can be appealed to to forcibly override the highwayman’s demands, whereas one cannot appeal to the highwayman to override the commands of the sovereign. But that merely begs the question. Of two pretenders, which is the sovereign and which is the highwayman? Both might declare themselves the former. Prince John declared Robin Hood a simple outlaw. Robin Hood proclaimed himself a servant of the absent king. But to ask who’s right and who’s wrong is just to misunderstand the problem.

It should come as no surprise, therefore, that some ‘critical legal theorists’ regard law as a blind for power. We talk the talk with bromides like “the rule of law”, “equality under the law”, and so on. But beneath this rhetoric lies something far less laudatory, namely brute raw power.

But even if this is so, what lies beneath this power? What underpins it? Force of arms, certainly. But also what Hart called “the internal point of view”, or what I’ve been calling uptake. If this be doubted, ask yourself what would happen if one day we all just decided not to recognize those pieces of coloured paper as tradable for our goods and services, or those badges on those chests, or the titles by which one claims his authority? We give uptake because it serves our purposes to do so. And only for as long as it does.

Well no, not always. Sometimes – perhaps far too often – we’ve become so habituated to our having given uptake that it doesn’t occur to us that we can withdraw it. This is how sovereigns become highwaymen. It’s done in increments. Not unlike frogs, who have mechanisms for detecting rapid changes in temperature but none for detecting temperature itself, we allow ourselves to be boiled.

This is what happened to the Jews in Germany between 1933 and 1939. The sovereign morphed into a highwayman. This regularly happens with liberators turned tyrant – Mugabe in Zimbabwe, Gaddafi in Libya, Saddam in Iraq. But the creation of a dystopia is not always as Mephistophelian as that. As often as not we boil ourselves. Hence the oft-cited distinction between George Orwell’s 1984 and Aldous Huxley’s Brave New World.

So the bottom line, it seems, is that for all our efforts – Spinoza’s, Hobbes’, Hart’s – there is no distinction between the sovereign and the highwayman save that our thinking makes it so. If all things considered you like the rules you’re being expected to follow, then follow them. If all things considered you don’t – but make sure all things have been considered – then feel free to just shoot the fuckers!