Everything You Wanted to Know About What’s Going On in the World But Were Afraid to Ask

SARAH BRAASCH AND THE BURQA BAN

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Sarah Braasch, bless her cotton socks, is the self-styled social justice warrior who recently got herself driven out of a doctoral program at Yale by her pitchfork-wielding fellow students, and brutally pummeled in social media, for having called the cops on a black student for being where she had every right to be.

The world is not always kind to those who can’t quite live up to their own ideals.

But that’s an old saw, and I turned in my own pitchfork years ago.

Instead what I want to blog about here are two opinion pieces that Braasch contributed some time earlier, one to the Humanist and another to Daylight Atheism, on the Patheos site, in which she advocated a worldwide ban on the burqa. The Humanist has recently deleted her post for its racist content – of which there was none, but that hardly matters once the mob is intent on a lynching – whereas Patheos, to its credit, stuck to its mandate to post arguable arguments. Here, at the risk of incurring a charge equivalent to distributing child pornography, are the URLs for both:

https://www.thefreelibrary.com/Lift+the+veil%2C+see+the+light.-a0236631549 and

http://www.patheos.com/blogs/daylightatheism/2010/05/yes-thats-me-in-the-burqa/

Braasch’s case for the burqa ban was not the first time she revealed herself as perhaps not the sharpest pencil in the box. But though the argument is flawed, it’s by no means stupid. Nor is it in any way racist. The pitchforkers who think it is just don’t know how to parse an argument.

Which, to be fair, requires training they simply don’t have. This is why only at one’s peril does a philosopher – in her case an aspiring one – advance an argument in the public forum. For the hoi polloi the unit of meaning is the sound-bite, not the sentence, so a ‘not’ can go entirely unnoticed. One dare not use irony, or speak in voce. So in failing to anticipate the literacy level of her readership, Braasch has no one to blame but herself.

That was irony, by the way. There is no way to outsmart the stupidity of stupid people.

Fortunately, unlike Braasch, I can get away with in voce, irony, and embedded negations. This is because I’m tenured, and I’m in the autumn of my career. I figure if you’re too stupid to follow any of the arguments I’ve made on these blog entries, well, in the words of Rhett Butler, “Quite frankly, my dear, I don’t give a damn!”

This is not to say tenured professors can’t get into trouble. A certain Tony Hall was recently railroaded out of the University of Lethbridge for suggesting that the job of the historian is to revisit what happened, which, at the urging of a certain Goldie Morgentaler in the English Department, and B’nai Brith Canada, was interpreted – go figure! – as Holocaust denial.

So how does an historian or philosopher go about doing his job? I guess by speaking only to other historians or philosophers. But that leaves the widow to wonder why she’s paying the mite she can ill-afford to this navel-gazing echo-chamber. So we really are damned if we do and damned if we don’t. Braasch did and got damned for it. If she’d kept her pen in its quiver she’d have been fine. So note to all would-be bloggers. Be careful what you write because somebody might actually read it!

Okay, enough throat clearing. Let’s look at her argument.

To her credit Braasch does not hang her case on the burqa being a symbol of Islamic misogyny, though she clearly thinks it is. She may think she’s qualified to pronounce on what’s being symbolized by the practices of others, but she knows perfectly well that for the law to so presume, well, this way there be dragons!

Nor does she argue that the wearing of the burqa is intended to thwart the capacity of the rest of us to know who we’re interacting with. After all, such asymmetry of knowledge would empower women, not disempower them, and Braasch is all for the empowerment of women.

Rather what she argues is that, even if only as an autonomous effect, the burqa does thwart the capacity of the rest of us to know who we’re interacting with. And, she seems to think, the rest of us have a right to know who we’re interacting with.

We wouldn’t have the right to ban the burqa if doing so would violate a competing right that would trump our right to know who we’re interacting with. Suppose, for example, that the very sight of a woman’s face would drive any and every man to rape. Then a woman’s right not to be raped would clearly trump our right to know who we’re interacting with. But, she argues – quite rightly, I think – not that there couldn’t be such a trump card, but that as a matter of fact there isn’t. For example, the right to practice one’s religion does not entitle one to deprive her child of a life-saving blood transfusion, nor to mutilate the genitalia of one’s pre-pubescent daughters. So, to paraphrase Braasch, Jehovah Witnesses and Somali Moslems, if they want to live in anything even marginally resembling a civil society, are just going to have to suck it up!

So given that she’s premising her argument on “the public’s right to know”, so to speak, Braasch acknowledges that the ban would have to apply to face covering in general, rather than the burqa in particular. Fair enough, say I. But do we always have a right to know who we’re interacting with? In some contexts, like making an over-the-counter withdrawal from a bank, certainly. But when blind-refereeing a paper for publication in a journal? Just as certainly not.

On the one hand, I like this end-run around the First Amendment. Instead of banning the KKK for their views we ban them for their hoods. Smooth! But hold on. In the final scene of the film V for Vendetta, thousands upon thousands of people march on the Houses of Parliament wearing Guy Fawkes masks. Why? Because under the regime being demonstrated against, being identified invites arrest, followed no doubt by something worse. Braasch seems to be insisting that oppressed people either suffer the courage of their convictions or continue to cower in their hovels. So what could she be hoping? That the very government that imposed the ban in the first place would lift it for, but only for, the purposes of its own overthrow? Defenders of the Second Amendment argue that the first thing a would-be tyrant will go after is our guns. They’re wrong. It’ll be our anonymity. And as Thomas Hobbes observed, surveillance is invariably the very first act of war.

So much for the premise that we have a right to know who we’re interacting with. But suppose, however reluctantly, that premise is granted. Now let’s consider the exceptions Braasch would have to countenance, and see what if anything would be left.

Start off with people who need to cover their faces not to hide their identity but to protect themselves or others. Me when it’s minus forty with a wind chill of minus sixty. Sunglasses. Pollution masks. Welders. Health care workers. Swat teams. All exempt.

People who can invoke the artistic defense, however widely construed. Actors in Greek tragedies. Clowns. Mascots. Santa. Mardi Gras. Kids out trick-or-treating on Halloween. All exempt.

Now let’s move on to costume parties and sex clubs. And what about people with severe facial disfigurements? And I’m pretty sure there’s a thousand more I haven’t thought of.

So who’s left? Moslem women who elect to wear the burqa, and Haerdi women who elect to wear the frumka. Well now, fancy that!

But it gets worse. Covering the face is not the only way one can disguise it. And disguising the face is not the only way one can thwart identification. Cognitive psychologists who work on understanding our facial recognition protocols – protocols naturally selected for given the centrality to our survival of being able to distinguish friend from foe at a distance – have told us that hairline is one of the first things we look at. So no covering the hair. Face painting. Highly questionable. Makeup, but not too much. Body shape. So the muumuu is out. Apparently even your gait can either give you away or disguise you. So, at the risk of flogging a dead horse, if the justification for the ban is the facilitation of identification, the argument proves too much.

Braasch makes the standard undergraduate mistake of hand-waving about how these exceptions are to be accommodated. How exactly would the law be written so I could wear a balaclava when it’s minus forty with a wind chill of minus sixty? Or is her claim that there’s no need to be identified when it’s that cold because no one thinks of misbehaving?

No, Sarah, hand-waving won’t do. If prosecution were left to the discretion of the police and conviction to that of the courts, we’d be back to banning the burqa qua burqa, which is precisely what she claims she doesn’t want to do.

In The Concept of Law H.L.A. Hart argues that hard cases make for bad law. He was wrong. It’s bad law if it can’t handle the hard cases. So if a law can’t be written to do what we want it to do – in this case facilitate identification – without doing what we don’t want it to do – namely fill our emergency rooms every February with victims of frostbite – then we’re simply going to have to live with what I’m sure will be a spate of bank robbers making it from the getaway van to the front door by masquerading as Somali immigrants.

But look. I am not among those accusing Braasch of being a racist or an Islamophobe. Neither then, would I expect her to accuse me, in offering the following counterproposal, of being a sexist pig. Instead of banning the burqa tout court, I propose the compulsory wearing of the burqa for, but only for, women who are, let’s face it, just butt ugly. That way if she’s wearing a burqa I won’t waste my time hitting on her. But when, and only when, it comes to women I would hit on, then I’m with Braasch. Thus understood, and only thus understood, her argument is a good one. It just needs to be, as just noted, a tad more fine-tuned.

 

 

 

THE MONUMENTAL CRISIS

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The recent spate of monument toppling in America – which has just recently made its way up into Canada – has rendered a long-standing question in social and political philosophy just a tad more urgent. What are we to do with our heroes who, as it turns out, weren’t all that heroic after all? Well, let’s see.

It’s not that we didn’t know, back when these monuments were erected, that these men were racists or misogynists or homophobes or whatever. It’s that we didn’t care. Now we do. So whether we’re erecting monuments or toppling them, we’re not trying to change public perceptions of history. General So-and-So on horseback doesn’t tell you anything other than his name was General So-and-So and he may or may not have ever ridden a horse. If you want to know what happened, look to the bookshelves inside the library, not to the statue in front of it!

Think about who, among our erstwhile contemporaries, we’d want to memorialize. Nelson Mandela? Mother Teresa of Calcutta? And what will our grandchildren do with these monuments when it’s revealed that …? No, I dare not impugn the unimpugnable. Except to say that it’s quite the opposite of what Mark Anthony said of Caesar. It’s the good that men do that lives after them. The evil Is oft interred with their bones. But, apparently, not forever.

No, in erecting or toppling we’re making a statement of approval or disapproval. But not of what happened back then. What sense does it make to approve or disapprove of the roles of Harold or William in the Battle of Hastings in 1066? Or of Napoleon or Blucher at Waterloo? Nature’s red in tooth and claw. And so is human history. If you win you get a statue. If you don’t you don’t. Unless you’re Robert E. Lee, or Silent Sam, or Louis Riel.

No, in erecting or toppling we’re expressing public approval or disapproval of what’s happening today. We approve of women’s equality, so up goes Nellie McClung. We disapprove of slavery, so down comes Silent Sam. Notwithstanding we hung him back in 1885, we now support the struggle of our Metis brothers and sisters, and so up goes Louis Riel. We’re all paying for the detritus from the treaties our First Nations signed with cannons trained on their villages, so down comes Sir John A. MacDonald. And so on.

If public statues were lessons in history, then by all means let’s have a bronze black man in chains, cuz maybe little Cindy-Lou didn’t know her black playmates were descended from slaves. Of course then we’d also have to put Silent Sam up again. But if the sculptor made sure the slave looks appropriately noble and Silent Sam slack-jawed – and he’d be sure to hear about it if he didn’t – we’re not doing history, we’re doing propaganda, not all that dissimilar to the cartoon renderings of Adonis-like Aryans and hook-nosed Jews under the watchful eye of Joseph Goebbels. Either you’re telling what happened or you’re telling what to think about it. In a book you can do both. In a statue you can’t.

That ‘we’ approve? That ‘we’ disapprove? Who is this ‘we’? More often than not it’s some committee of ‘engaged’ citizens. But no committee can ever reflect the full spectrum of our disparate judgments. So whatever some committee will put up today, someone can be counted on to vandalize it tomorrow. It’s just freedom of expression.

No it’s not. It’s silencing expression. It’s silencing the expression of those who put up the statue. It’s the same as crashing the hall to prevent a reviled speaker from speaking. Freedom of expression is not the freedom to prevent the expression of others. It’s the freedom to speak when it’s your turn. And, of course, to have your turn. It’s the freedom to erect your own statue.

And therein lies the rub.

A statue in the town square is a piece of public site art. Let’s put aside for the moment the distinction between public site art and public sight art. All that need be acknowledged for the moment is that display is an exclusion-conferring concept. That is, unless I can distinguish between what’s on display and what isn’t, it isn’t. So a statue set cheek-to-jowl with a thousand other statues in the public square is not being displayed.

It follows that a license to display is simultaneously a license to exclude others from displaying, at least in the same space and at the same time. That’s why municipalities have a duty, a duty not to vet would-be demonstrations – that would be censorship – but to coordinate them. For example, to confine the Alt-Right to this side of the street, and the Antifa to that side of it.

The problem, then, is not so much those who have a contrary opinion to that of the town councilors who’ve just erected a monument to Martin Luther King. The problem is those who’d deny these malcontents the right to be afforded another square in which to erect a monument to George Wallace.

It would be sound, but I think spurious, to object that there’s not enough park space in the city to accommodate all the statues deserving of erection, including the one to my own sacred mother. (Okay, she was no Martin Luther King, but she did make great dill pickles.) The problem is that communities want the right to approve of some things and disapprove of others, and to do so as a community. They want to be able to say that this is what we stand for, where by ‘we’ is meant an exclusion-eschewing concept.

Public dissention on a community-defining value betokens that we’re not a community. As things stand, if there’s been a terrible tragedy, the mayor can express his condolences to the families on behalf of all of us. But not if some of us are publicly celebrating. How would it have been received if on 9/11 Rudi Giuliani had to preface his outrage with, “On behalf of only some New Yorkers …”? He’d have been better off saying nothing at all!

Similarly, then, a statue of George Wallace at one end of the park defeats the purpose of the Martin Luther King statue at the other. It announces that we’re not one community but two. And that the two are hostile to each other.

So one of the core questions in social and political philosophy is whether, among the rights an individual acquires by entering into civil society, is the right to a social identity, an identity that can only be afforded by her belonging to a particular community, a community stable and homogenous enough in its values to offer its members a social identity. I need to be able to tell myself that I belong to that community that honors the memory of Martin Luther King, and if anything dishonors that of George Wallace. But I can’t say that if King and Wallace are being given equal time, or in this case equal space.

The existence or nonexistence of this right sits at the core of the debate over what’s come to be called identity politics, be it the identity politics in Europe and America that’s driving the resistance to immigration, or the identity politics of blacks or Jews or homosexuals, each playing their own special victim card with a view to guilt-ing concessions out of white male heterosexuals, who are just now cottoning on to how to play this game themselves.

Identity politics isn’t about the right to be who we are. It’s about the right to be who we think we are. And, of course, to be ‘respected’ for it. There’s a Seinfeld episode in which another comedian converts so he can be funnier. Jerry is rightly outraged.

We Jews can’t cook. Italians can but they’re not funny. Germans? Neither. These properties only replicate if present in both parents. Hence Italian Jews are as kitchen-challenged and dour as Germans. I know all this because I took biology in high school.

In Political Science 100 we’re taught that a nation is a people, a government, and a territory. No it’s not. Unless we all believe some of the same things, we’re not a nation. The question is always what beliefs need these be? We signal these minimal commonalities by our creeds, or our pledges of allegiance, be it to the flag or to the Queen. I can’t stop myself snickering when I hear an American trying to sing his national anthem, or a Canadian drone through hers like a Gregorian chant. But even if I can’t engage in these rituals myself, even if I wouldn’t fight for my country, I’m glad, though proudly ungrateful, that there are people who would. And I know that these rituals are important to them.

If you take a knee you’re not putting your hand on your heart. If you don’t doff your hat on Remembrance Day you’re saying they didn’t die for you. And that means you wouldn’t die for the rest of us. These gestures are not trivial. They matter. Trump’s outrage may be a performance, but the outrage of the people who elected him is genuine. And as just argued, it needs to be.

Most Canadians, myself included, regard America as a nation of five year olds. But for that very reason especially dangerous, as evidenced by its current courtship with fascism. Fascism cannot abide dissent because it can’t survive it. Neither can virtually any ism, be it on the so-called right or the so-called left. The social justice warrior is no more tolerant than the racist or homophobe she takes such self-righteous pains to silence. The only ism that may be exempt is liberalism.

Why only maybe? Because the only way liberalism can be exempt is if it’s become, and if it can remain, definitive of our national identity. But can it? Not much more than four score and seven years ago our fathers [sic] brought forth on both sides of the 49th Parallel two new nations, conceived in liberty and dedicated to the proposition that neither Congress nor Parliament shall make any law establishing any doctrine. Now we are engaged in a great culture war, testing whether these nations, or any nation so conceived and so dedicated, can long endure.

On its own, the fight over monuments is trivial. But it’s as good a stand-in as any for the struggle between those defenders of liberalism who are hanging on by their fingernails, and the ever-recurrent forces of communitarianism. And then within the latter, whether it’s to be a fascist communitarianism or a Soviet one. So if finding a solution to the monument crisis is the test of whether liberalism can long endure, then we liberals better get cracking and find one.

To that end, let’s thinkfor a moment about public sight art. Let it be granted that I can’t run a swastika up a public flag pole. But what about in my own picture window? Germany had good reason not to allow this. It was occupied by those who had good reason to fear the resurgence that might have coalesced around that symbol. And in Germany that’s still the rationale for the ban on Nazi symbols. But in North America the official worry is incitement, and incitement is actionable under Mill’s Harm Principle. (Though it’s unclear who’s more likely to be incited, the neo-Nazis or the Jews.)

I say the ‘official’ worry because I suspect that incitement is really just a beard. The swastika doesn’t incite. Certainly no more than does the crescent. It doesn’t undermine national identity any more than the Confederate flag, or the Cross, or the Star of David. No, it’s that the swastika offends. Public sight art, if it’s to be actionable, is actionable not on Mill’s Harm Principle, but on Joel Feinbergs’ Offense Principle.

But freedom from offense is not a communitarian value. What could it mean to say a community is offended? And so citing offense escapes the charge of courting communitarianism’s tyranny of the majority. Freedom from offense is only of value to an individual, and so making offense actionable need not do violence to our liberal commitments.

Thus what remains to be shown – and this is no small task – is that a) freedom from offense is one of the reasons we enter civil society in the first place, and b) this freedom can be protected without doing violence to another reason we enter civil society, namely to provide some protection to freedom of expression.

I can’t presume to answer either of these questions here, except to point out that defenders of the Offense Principle argue that offense is provocation – usually but not exclusively to anger – and that provocation is not expression. This is because I can piss you off without in any wise expressing myself, for example by cutting you off in traffic. Fair enough. But what about inadvertent provocation, i.e. provocation which is the autonomous effect of some expression? For surely there’s a difference between my saying something that offends you and my saying something to offend you

Thus the argument is that since the only reason I could be displaying my swastika in my picture window is to offend you, if it succeeds it may therefore be actionable. I say “if it succeeds” because if no one’s offended it’s unlikely an information will be made. (That is, we can safely rule out the charge of attempted offense,. Surely failure to offend should be punishment enough.) But if I paint my house lime green because I like the color, then, on my account, even if I anticipate it’s likely to offend the neighbors, it’s not actionable.

So on my account actionability hangs on intent. Establishing intent is often a challenge for the law. But the law is no stranger to this challenge.

Do I like this solution? Not one whit. But I think it’s the best we can do. And, as it happens, it’s by and large what we do do.

Are there people who would like to express their admiration for George Wallace? Certainly. And they have plenty of mediums by which to do so. But erecting a statue to him is not among them. Erecting a statue to him could only be an attempt to offend. By contrast, the statue to Sir John A. was never intended to offend, neither when it was erecting, nor today. The fact that it does offend doesn’t cut the mustard. So he stays. And the same goes for Silent Sam. Are there people who would like to express their admiration for the Confederacy? So a Confederate flag in the window stays. And so on.

Are there people who would genuinely like to express their admiration for Osama bin Laden? I know there are, because I’m one of them. So a portrait of him in my picture window stays. But now comes the distinction between public sight art and public site art. What argument can be given for why those of us who admire bin Laden can’t put a statue of him in a public park? I can think of only one. It wouldn’t last the night. But given the way I’ve reluctantly parsed the issue, as a liberal I couldn’t countenance the town prohibiting it.

That’s the problem with liberalism. It’s easy to preach. It’s not so easy to practice.

 

 

OWN-PETARD-HOISTING

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The #MeToo movement took a serious hit the other day when it was revealed that Asia Argento, one of the accusers of Harvey Weinstein’s ‘rapacious’ behavior, had herself, even more recently, paid $380,000 to silence a then under-age young man who’d otherwise have gone public about her behavior, namely her having committed statutory rape.

What is it about moments like this that I find so deeply satisfying? Is it that, unbeknownst even to myself, I’m an incorrigible misogynist? Or is it because I like to see MeToo-ism – like so many other social justice movements that feel compelled to so mindlessly overstate their case – finds itself hoist by own petard?

Some people are knee-jerkedly on the side of the underdog. I’m not. My knee jerks for own-petard-hoisting. That’s why 9/11 was so satisfying. That’s why I’d like to see a typical Islamophoic American family, with non-refundable reservations for a chalet on some ski-hill in the Canadian Rockies, turned back at the border because they have one of those Christian fish symbols on their rear bumper. Or, apropos the refugee crisis, how ‘bout Air Force One, having just crossed the Atlantic, being denied landing rights anywhere within its remaining fuel supply radius? Or after the latest shelling of Gaza, an appropriately small nuclear device detonated over, say, downtown Tel Aviv.

We’re told to be careful what we wish for. Wasn’t that the message of the giant marshmallow in Ghostbusters? Ah, but if only! Still, 9/11 and Asia Argento. That’s only two in seventeen years. It’s hard learning to settle for what one can get. But the Buddhists are right. That’s the secret of happiness.

FATHERS AND SONS

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Only those with a long memory will get the reference, but in the same way Haiti’s Baby Doc Duvalier was not his father Papa Doc, neither is Justin Trudeau his father Pierre Elliott. Papa Doc and Baby Doc were both very bad men. Pierre was, and Justin is, I suspect, both good men.

But whereas Pierre was a thinker, Justin doesn’t have those chops. Whereas his father did better than could be done, Justin, not unlike Ulysses’ son Telemachus, is doing the best he can. The beauty of Canadian politics is that there’s not a whole lot of damage that can be done. And so the most and the least that can be said for Justin is that, unlike his counterpart south of the border, he hasn’t been an embarrassment, either to the office or to the country.

I didn’t vote for the boy, but only because I don’t vote. In short, God is in His heaven, and all’s well with the world. Well, at least here in Canada.

But there are some very nasty things happening elsewhere in the world. Nastier than ever before? No, I’m pretty sure that ’39 to ’45 were worse. As un-nasty as ever? No, I think ’89 to ’91 were a better couple of years, all things considered.

But the nastiness in Palestine, off the coast of Libya, at the US-Mexican border … None of these top the charts in terms of human suffering. But they have a symbolic nastiness that’s taking the wind out of the sails of those who’d hoped, however naively, that the world was on a moral arc taking US to a better place. Perhaps the rhetoric is the wrong measure, but assuming it’s not, we seem to have retreated back to the tribalism that gave rise to some of those nastier moments, moments that that I, for one, would rather not revisit.

To his credit, Justin Trudeau is no part of that retreat. In both his defense of Canadian immigration policy, and his damn-the-torpedoes upbraiding of civil rights violations in Saudi Arabia and elsewhere, his has been a voice we could be proud to call our own, even if these utterances were more knee-jerk than thoughtful. Sometimes it’s what we say without having thought that tells us what we really think.

That’s what makes it so transparent that Donald is a Duvalier, and Justin is a Trudeau.

OF CRIMES BY ASSOCIATION WITH CRIMES

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Definitive of the Millian liberalism to which most of us purport to subscribe is the view that a) all is permitted save what is prohibited, and that b) a necessary, albeit insufficient, condition of some behavior being justifiably prohibited is that it be demonstrably harmful to others.

Not unlike any one of the Ten Commandments, the devil is in the details, and details are what the Decalogue assiduously avoids.

“Thou shalt not kill!”

Anything? Ever?

“Well no. Obviously there has to be exceptions.”

Which are …?

“Well, that’s something you’re going to have to work out amongst yourselves.”

So we shouldn’t kill who and when we’ve decided amongst ourselves that we shouldn’t kill. Is that the divine advice for which Moses spent forty days and forty nights without the conform of his tent?!

God has said some pretty vacuous things, and so, apparently, has Mill. According to the Harm Principle, what counts as harm? Typically but not necessarily tissue damage, But what about symbolic harms, like the subordination of women through their representation in pornography? What about offense, like the words nigger and kike?

And what counts as demonstrability? Is it sufficient, as the Supreme Court of Canada ruled in Butler, that notwithstanding the absence of a preponderance of evidence, the state need only have a reasonable apprehension of harm? And is an apprehension reasonable just in case it’s not unreasonable? If so, what is there that couldn’t be judged not unreasonable? Given that the words nigger and kike are known to be highly provocative, surely it’s not unreasonable to likewise worry that a human sneeze might be misunderstood as the ultimate insult when interpreted by the highly sensitive auditory apparatus of our brothers and sisters on Mars.

All right, let’s take a look at a more real world case in point. Let it be supposed, however fatuous or spurious the arguments for this may be, that

1) using a sleeping infant as a visual masturbatory aid is some kind of harm to that infant.

And let us further suppose, however unsupported this might be by any data, that

2) exposure to child pornography increases the likelihood that one will engage in that purportedly harmful behavior.

And, just to be jurisprudentially rigorous, let us also suppose that

3) the criminalization of such exposure is likely to reduce the incidence of such exposure, and that

4) any right one might have to such exposure is outweighed by the harm cited in (1) above.

 

It follows from (1) through (4) that the criminalization of exposure to child pornography satisfies Mill’s Harm Principle.

But now consider this. As is well known, there are fetishes, some of which we share, some we don’t share but understand, and some we couldn’t share because we don’t even understand them. As it happens I’m not a pedophile, but I understand it. I’m also not into ladies’ shoes and, to be honest, I don’t understand those who are. As it happens I’m an out-of-the-closet vanilla heterosexual. But I don’t condemn people who are sexually aroused by young children or ladies’ shoes, any more than I condemn people who are aroused by adults of the same sex or, like myself, adults of the opposite sex.

Not being a sexologist I neither know nor care whether our sexual orientation is something we’re born with or is socially constructed. For that matter – and again I have to be honest – of all the things I care least about, your sexual orientation, whatever it may be, is pretty much right at the top of the list. Unlike some people, I just don’t find sexual orientation all that interesting.

But what I do find interesting, and what I do care about, is jurisprudential reasoning, and more particularly what jurisprudential reasoning might be involved in parsing the following case:

Suppose that in the same way that some people are into ladies’ shoes, I’m into infants’ clothing. Pictures of naked infants leave me absolutely cold. Pictures of their clothing, with or without them in it … well, there are just no words to describe my excitement! Am I a pedophile? Absolutely not. In fact I don’t even understand it.

Now suppose I’m arrested for exposing myself to child pornography. Notwithstanding I don’t understand pedophilia, I acknowledge that it’s not unreasonable for a judge or a member of a jury to suppose that my fetish for infant clothing is just a variation on what must be my pedophilia. My question is: ought that association be regarded as defeasible in a court of law? And if it is, on whom falls the burden of proof? That is, is it an element of the charge – if so the onus would fall on the Crown – that my viewing of the clothing is a surrogate for the viewing of the infant? Of is the court entitled to assume that inference, and it falls on me to show that in my case that inference is unwarranted?

Have empirical tests been devised to reliably determine what’s arousing me? Apparently there have. Apparently sexual arousal is detectable. So why might the courts be disinclined to allow the results of these tests being placed into evidence? If my response is to the clothing but not the infant, then the harm argument cited above, be it sound or not, doesn’t come into play.

My suspicion is that the Crown would not want to assume the burden of establishing the connection between the fetish and pedophilia, either as a rule of thumb or in my particular case. One reason for this is that the Crown might not want to incur the cost of these tests. And few defendants have the resources to pay for these tests themselves. But in any case I don’t think the court would be inclined to allow the accused to show the disconnect even if on his own dime. And I suspect the reason for this has nothing to do with pedophilia. I suspect it has everything to do with not wanting to allow the precedent of allowing an empirical challenge to inferences upon which many of our criminal offenses hang.

Such as? Well, for one, the inference from either a) anti-Zionism or b) 9/11 Trutherism, or c) Holocuast-denial to d) anti-Semitism, then from d) anti-Semitism to e) so-called hate speech, and then from e) so-called hate speech to f) incitement.

What’s especially telling about these inferences is that a) anti-Zionism and b) 9/11 Trutherism and f) incitement are reasonably well defined. And e) hate speech could be defined as what it would not be unreasonable to worry could lead to f) incitement. But notwithstanding I’m a Jew, I haven’t the faintest idea what would count as either c) Holocaust-denial or d) anti-Semitism. Nevertheless, the inference from a) anti-Zionism or b) 9/11 Trutherism or c) Holocaust-denial to f) incitement is at least as incorrigible as the inference from my infant clothing fetish to my pedophilia.

Here’s a third example. As you’re reading this you’ve inferred that I think the incorrigibility of these inferences is unjust. But did I say anything of the sort? No I did not. And yet critique is almost invariably interpreted as opposition.

Well yes, I am arguing against that inference.

My own positive view, for what little it’s worth, is that these unsound incorrigible inferences are not intended to be subject to such analysis, any more than the concepts of race or God or any number of concepts are intended to be subject to analysis. They’re moves in what Wittgenstein called language games, which are in turn constituents of what he (didn’t but could have) called political discourses, which in turn are constituents of what he called our forms of life.

Some people think they can change a form of life not to their liking by ‘correcting’ some erstwhile incorrigible inference. As a prime example of this, think of the current challenge to the binary of male and female. I wish these social justice warriors God’s speed. But I think there’s a much more direct way by which to protect our right to our fetishes, the practice of historical revision, or whatever.

Instead of challenging one of these inferences, just don’t give it uptake.

Since you really don’t understand the inference you don’t have to pretend you don’t. You need only pretend you don’t understand that others understand it. If this be doubted, think of how this works when you’re on vacation abroad,. You’ve rented a car, you’ve inadvertently cut someone off in traffic, and he’s berating you as he pulls up beside you at the next red light. “I’m sorry, but I don’t understand Italian!” Watch his high dudgeon deflate like a spent erection.

Try it. It works every time. Nothing debilitates like the look of incomprehension.

But that’s not the only payoff. If I don’t understand your reasoning, it’s going to occur to you to wonder why. Perhaps not immediately, but eventually it’s going to dawn on you that maybe, just maybe, it’s because your reasoning is incomprehensible. So you’ll give it a check, only to discover that it really doesn’t make any sense. At which point you have only two options. Either you drop the inference and behave accordingly, or you deny that your judgments need to make sense, at least in the domain in question. Individuals can do that. Courts of law can’t. Or if they do, they cease to be what they were and become something else.

Courts of law deserve our respect. The something else deserves a bullet.

 

HOW TO DUMP TRUMP

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With apologies to Neil Diamond,

Have you heard about the frog who dreamed of being a king,

and then became one?

Well, except for the name and a few other changes,

if you talk about D,

the story’s the same one.

It was hard to picture the frog as being a king, and now that he’s become one it’s even harder. But there you have it. For bad or for worse, the frog-prince is the President of the United States.

I think we can all agree it’s been a practical joke gone terribly wrong. But what do we do now? There are lizard people in the White House. And they’re not even in disguise. How do we get them out?

I say ‘we’ because in the summer of ’39 the Poles had as much reason to want Hitler removed as did the few Germans who were still sane. What’s likely to happen is not much at all. But what could happen is scaring the shit out of a lot of people, myself included. I think the time has come for drastic measures. And I think I have the measure that just might be drastic enough.

I propose that it didn’t happen.

I’m not proposing we pretend it didn’t happen. Children pretend. I’m proposing that we make believe, but not in the sense synonymous with pretending, but rather in the sense of making ourselves believe. If we could make ourselves believe, then we would believe. And what is it to hold any position – from President down to crossing guard and all the way back up to God – other than for others to believe you hold that position?

Suppose we all just ignored the crossing guard. What could he do? Suppose we all ignored God – which, come to think of it, most of us do – what’s He done about it? Has He struck any of us dead with a lightening bolt?

“Ah, but Trump would.”

How? Does he carry lightening bolts in his suit pocket?

“No, but the people he commands do.”

Why would they do what he commands?

“Because he’s the President.”

No he’s not. Haven’t you been listening?

Now that Trump’s not the President, and never was, a number of options present themselves. We could believe that Hillary Clinton is, but I’d strongly advise against that. We could believe Mike Pence is, but his posture in all those photo-ops standing behind his master like an adoring puppy while he signs one arrest warrant after another … No, not Pence. Another election? God forbid No, I think we should just do without one for the next two and half years, and see what happens. I’m guessing not much.

“But decisions have to be made.”

Then make them.

“But I’m not authorized.”

By whom would you like to be?

People who are wont to say, “I was just following orders!” – people like Adolf Eichmann – still have to answer that question, and the answer better not be “I was just following the orders of the people whose orders I like to follow.” If he’d said that at his trial, the so-called Eichmann defense would have been less a defense than a confession. That’s something some of Trump’s functionaries should remember when they’re on trial for crimes not recognized as such by the current Administration.

So the fallback position has to be, “But there has to be due process.”

And indeed there does. But appeals to due process invariably beg the question. What process is the one that should be due? And how do we decide that, if not by the quality of the decisions arising out of that process? It was precisely because of the quality of the decisions arising out of the English monarchy that the Americans decided that a different process might be more to their liking. And so wasn’t it from the quality of the decisions arising out of the White House that we just decided the process that put Trump in power had to be replaced with one that was more acceptable?

So if you want a process that’s due, find one that is.

Is anything like what I’m proposing going to happen? Of course not. I put it out there to remind us of two things. First, that for all its indispensability to the very possibility of civil society, giving uptake remains a discretionary act. As John Locke insisted, under dire enough circumstances we can and should withdraw it. And second, that crimes against humanity transcend criminal codes, and so it puts those who are “just following orders” on notice that they may yet have to answer for the orders they were just following.

The Thousand Year Reich lasted just under twelve. Trump has at most six and a half to go. St. Paul assures us that “Love is patient.” Well, so is justice. So remember that while you’re standing at the border taking names so you can decide who can and cannot be reunited with their children, someone’s taking your name.

 

 

WHAT’S A POLITICIAN’S BASE?

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Apparently in American presidential politics there’s something called a base. The Democrats have one, the Republics have another, and Donald Trump has his very own.

Voters who don’t belong to a base can drift from one candidate to another, but not if you do belong to one. But if you’re a member of one you can’t move to another. That’s because membership in a base is something you acquire shortly after you’re born, like an infant baptismal certificate, or no longer having a foreskin.

A base is what guarantees a candidate people to thank even if she was ‘disappointed’ by the results that “the CNN decision desk is now ready to declare …” Your base is what told you to run in the first place, and what allows you to think that, though a loser, you’re nonetheless still a player.

Your base is like your mother. You can do no wrong, but others can and do wrong you. And a base neither knows nor cares about what you stand for until after you’ve stood for it. This gives you an enormous amount of latitude in selecting policies that might appeal to those swing voters who are not of your base.

Pundits talk about candidates appealing to their base. This is nonsense. If you have to appeal to them they’re not, nor ever were, your base. So the more you have to fulfill one election promise, or walk another one back, the smaller your base must have been. This is why Trump, like every demagogue before him, has no need to look over his shoulder. The size of his base makes appeasement unnecessary.

Does this mean that, in the same way matter can neither be created nor destroyed, no base can ever grow or shrivel? If so, the obvious question is, how does a base ever enter the world or leave it? To which the obvious answer is: with you. Just as there’s a fact of the matter about how many words you’ll speak before you die – and therefore I advise you to husband them well – there’s a fact of the matter about how big your base will be the moment you declare your candidacy. Who were they beforehand? They were your base-in-waiting.

Trump took a look at his and if anything underestimated it. Clinton took a look at hers and vastly overestimated it. It was Sanders who commanded the Democratic base. Like Trump, he could say the stupidest things – and he did – and they loved him all the more for it. But for all that he couldn’t have won. Too old, too pontifical, and too Jewish.

Unlike in America, we don’t have the cult of personality in Canada, probably because our politicians don’t have any. And that seems to be the way we like it. But we do have our base voters. The NDP premier of the Province of Alberta, Rachel Notley, can betray everything the NDP base stands for, but it doesn’t matter because she’s the NDP premier. If it’s base wasn’t loyal, it wouldn’t be called its base.

Appearances to the contrary notwithstanding, belonging to a base is not a sign of being politically engaged. On the contrary, it’s a way of being relevant to the issues without having to think about them. Not unlike in Nazi Germany or Stalinist Russia, the Party, or the Great Leader, does all that thinking for you. But this is hardly a criticism. Since few of us are in a position to have an informed opinion about these issues anyway, it’s more efficient this way.

My grandmother was a Bolshevik. My father was a Marxist. So I became a socialist – not that I know or need care what that means – about the same time I lost my foreskin. Since in a healthy democracy somebody has to take this side rather than the other, what difference does it make whether he’s thought about it? It’s not like if we all thought about it we’d all end up on the same side. Think of it like Field Day when you were back in grammar school. Does it really matter whether you’re assigned to the Blue team or the Red team?

Well no, unless some of your friends were given their sashes just before you.

But that’s not a healthy thought-experiment. If I console myself by observing that I like the people on my team more than the people on theirs, I can’t help wondering whether I like them because they’re on my team, rather than the other way around.

And what this shows, once again, is that some things just don’t bear thinking about.

 

 

FAKE NEWS

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What Donald Trump means by fake news is not the reporting of what’s materially false. It’s the reporting as true what only could be true. It could be true – because it would be perfectly understandable if it were – that “the President is becoming increasingly worried that the Mueller probe could lead to his impeachment.” If asked, of course he’d deny it. In fact nothing could falsify the claim that “the President is becoming increasingly worried that the Mueller probe could lead to his impeachment.” So CNN can with impunity report that “the President is becoming increasingly worried about” whatever CNN would like the President to become increasingly worried about. If he denies it, well he would, wouldn’t he?!

It’s the oldest political trick in the book. If a claim can’t be falsified it must be true. Prove that you didn’t have an affair with your secretary. Can’t? Then obviously you did. That’s what Trump means by fake news, and it’s that kind of fake news that we should all become increasingly worried about.

Fake news – what we used to call spin – isn’t harmless. Saddam Hussain could have had weapons of mass destruction. And though weapons of mass destruction is a media term, not a military one, his having them could be very serious. So yes, we do need to invade. All that CNN is proving is that what was fair game for the pro-Bush agenda in 2003 is fair game for the anti-Trump agenda today.

Here’s a related example. There’s been a terrible accident, and all the townspeople are in shock. How does the reporter know this? She can stop a townsperson on the street and ask the leading question, “You must be in shock. Are you?”, which is sure to elicit the desired answer, “Yes.” But were she to ask the non-leading question, “What are you in?”, I’m pretty sure no one is going to answer, “Shock.” Still, she can and will with impunity report that all the townspeople are in shock because it wouldn’t be unreasonable if they were.

Is anything added to our understanding of what’s going on in that town by our believing all its townspeople are in shock? Not a whit. But it elicits our solidarity with these hypothetical people-in-shock, and now our solidarity with them can in turn be reported on. And so on.

Am I saying all this to express my solidarity with poor misunderstood-because-misrepresented Donald Trump? Certainly not. Am I saying all this because I want the news to report the truth, the whole truth, and nothing but the truth? A fortiori not. In fact I’m having trouble picturing what that would look like.

“I can’t believe what I’m seeing.”

“Okay, then I’ll interview someone who can. Excuse me sir …”

“I just saw the World Trade Center come down before my very eyes.”

“And tell us, what was that like for you?”

“It was like seeing two very tall buildings come down before my very eyes.”

“Thank you, sir. Now back to you, Anderson.”

So the news isn’t there just to report what’s happening. It’s there to start a conversation about it. And to steer that conversation. To suppose otherwise isn’t naïve. It’s just false.

Few channels, and even fewer websites, take the trouble to announce what kinds of conversation they host. But most of us figure it out pretty quick. Fox News isn’t about balanced reporting, and neither is MSNBC. Birthright isn’t about your right to give birth, it’s about your duty to. False Flag Weekly isn’t a soapbox for your Islamophobia, but InfoWars is. But it’s important to know that neither is the best place to register your sympathy for the parents of the children who may or may not have been killed at Sandy Hook.

So has the media ushered in a new age of fake news? Nonsense. In the sense in which Trump means it, news has always been fake. But because it cannot but be fake, the term will eventually go the way of Liberty fries and every second word being “man”. Every facon de parler has a best-before date. The truly cool dude doesn’t get caught up in these fleeting fads.

 

 

THE MOVIE THEATRE INSIDE OUR HEADS

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There’s a movie theatre inside our heads. The projector turns on automatically when we shut our eyes to go to sleep but haven’t yet arrived there.

Both sci fi and fantasy flicks leave me cold. They’re like playing dealer’s choice when the fat kid calls everything but deuces wild. Action flicks get tedious, especially those endless chase scenes. But films about beings just being are the least cinemagraphic. They’re called chick flicks for a reason. We all have winning the unwinnable race in our stock footage. And, of course, there are our revenge scenarios. But my personal favorite are capers.

Why capers? Because what can be done, even with great effort, isn’t worth doing. It’s the impossible that calls out to us. “A man’s reach should exceed his grasp or what’s a heaven for?” It’s probably something like that.

In any event, I’m filming one right now. It’s Investigation of a Citizen Above Suspicion meets my interior social justice warrior. The best part of it is that’s exactly what I am. A sixty-eight year old philosophy professor, the very last person security would think to send to secondary inspection.

And why social justice rather than personal gain? I guess because, though not rich, I’m comfortable. But I’m not comfortable with the discomfort of others. Well no, that’s too broad. I’m not comfortable with the discomfort of those made uncomfortable by those who’ve made themselves comfortable through the discomfort of others.

For some filmmakers this would be the inordinately wealthy. For me it’s the illegitimately powerful. Not powerful by virtue of their superior wealth. Powerful by virtue of their superior military might. I think that’s why 9/11 was so satisfying for me. It was David taking down Goliath. Aren’t we supposed to identify with David?!

At any rate, my working title is And Then There Were Six. I’ve given you the genre. I’m not going to give away the plot.

 

 

THE B SIDE OF BANALITY

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I’ve been where there has been war, and where there currently is.

People who haven’t look at the footage and get a very skewed impression of what war is like. What they don’t see is that, just outside the mise en scene, more often than not the busses are not just running, they’re running on time. Wars are fought by a very small percentage of the population in some field or village way over there. For the rest, life goes on, because that’s what life does.

What the reporter and her cameraman are showing us isn’t fake news. It’s real enough. It’s that busses running on time, because that’s what busses tend to do, just isn’t newsworthy.

Feminist historians have been especially keen to point this out. The history books are all about battles and palaces. But most of what mattered in the past, not unlike most of what matters today, happened and happens in the home. The home may not always be a peaceful place, but neither is it red in tooth and claw. Beneath the sometimes horrible tenth that’s above the surface, lies the nine tenths of life that’s just banal.

But banal in a good way. It’s the B side of Hannah Arendt’s banality of evil. It’s a baker setting out his bread in the morning, a boy kicking a can down the street, a man pushing a little girl on a swing. Nothing ecstatic. Just beings being.