OF CRIMES BY ASSOCIATION WITH CRIMES

 

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.

 

HOLOCAUST DENIAL AND ANTI-SEMITISM

Down the hall and around two corners, I have a colleague named Tony Hall. I say ‘colleague’, but only in the sense that we’re both tenured professors at the same university. I teach in the Philosophy Department; he’s a one-man show in a program he calls Globilization Studies.

Tony’s an affable enough fellow, but he’s also an idiot. To his credit, he doesn’t mind me calling him that. He understands that most of his colleagues regard him as an idiot. Why? Because he’s a 9/11 Truther? Well, yes. But it doesn’t stop there. Tony’s convinced there’s an international Zionist conspiracy out there that’s behind most of the terrorist attacks that have taken place in the West over the past two decades, attacks for which the Israelis and their American neo-con buddies have cleverly framed their Arab enemies.

Now my own view, for what little it’s worth, is that nineteen brave young men – brave beyond description! – managed to pull off what must surely be the single most cost-effective military operation in human history. No fiction could possibly match it! And so if instead it was Mossad that managed to frame these guileless young Arabs for what was in fact a ‘false flag’ operation, well, that just raises my admiration exponentially. But, alas, cool as that would have been, reality just isn’t that cool. That would have involved just too many co-conspirators to be plausible. It’s not that people talk in their sleep. It’s that people brag. To suppose that of the hundreds of people who would have had to have been involved not one of them, in the throes of passion, whispered to his lover … So no, I think the official story is gobsmackingly cool enough. So that’s my story and, much to Tony’s chagrin, I’m stickin’ to it.

But – notwithstanding that I guess I have – that’s not what I want to blog about here. Rather I want to blog about what happened on October 4th of last year. That’s the day that Mike Mahon, the President of the University of Lethbridge, in blatant violation of the collective agreement between the Faculty Association and the University, suspended Tony without pay and declared him persona non grata on campus.

Needless to say there are several court cases pending, an international censure of the U of L is in the works, and many of Tony’s colleagues, myself included, have, and continue to, come to Tony’s defense. But none of that is what I want to blog about here either. If the case for academic freedom has to be made to the kind of people I assume have been reading this blog, I might just as well hang up my shingle right now. Rather what I want to blog about is what Tony is being accused of.

In conjecturing that the State of Israel is behind the lion’s share of all these terrorist attacks, he’s being accused of promoting anti-Semitism. His accuser, by the way, is one Goldie Morgentaler, a prof in the English Department, daughter of the late Henry Morgentaler, the abortion doctor responsible – and thankfully so – for the 1988 Supreme Court ruling striking down Canada’s abortion legislation, and who was, along with Goldie’s mother, a Holocaust survivor. Bigotry doesn’t arise ex nihilo. So it’s not entirely surprising that Goldie would hold the view that – and I quote – “Any criticism of the State of Israel is anti-Semitism!”

According to Goldie, then, my fellow self-loathing Jew, Noam Chomsky, and I are both anti-Semites. Well, once played, nothing can trump the Auschwitz card, so I guess I must be. But Tony isn’t. He’s an anti-Zionist, to be sure. But then so is Chomsky. So am I. But anti-Zionism is little more than a hundred years old. Anti-Semitism has been around since the supersessionism of First Century Christianity. Two very different animals. Two very different pedigrees.

Now my own view – again for what little it’s worth – is that if I thought the Israelis were clever enough to have pulled off all those attacks and blame every one of them on their Arab enemies, that wouldn’t make me anti-Semitic. Hell, that would make me proud to be Jewish. I must be a member of the smartest race the world has ever known! So how are any of Tony’s false flag conjectures anti-Semitic? Anti-Semitism is the view that Jews are morally inferior to gentiles. So it must be that his accusers think that Tony thinks that intelligence is a sign of demon possession or something.

Look. Two peoples, Jews and Arabs, each want the same piece of land. And neither, it seems, is all that sanguine about sharing it with the other. What choice is there but war? And what, according to Thomas Hobbes, are the two cardinal virtues of war? Force and fraud, right? Fraud. So if the Israelis were responsible for 9/11 and successfully framed their enemies for it, that would be something to admire. If Tony thinks the Israelis did pull off these attacks and yet he doesn’t admire them for their chutzpah, then he must be a complete idiot.

Of course it’s entirely possible that Tony’s accusers think he’s just, well, stupid. That he has conflated cleverness with evil. Or perhaps they think he hates us Jews not because of our cleverness but for the same reason most of you anti-Semites hate us Jews, namely that we killed your Lord, we celebrate Easter by drinking the blood of a Christian baby … You know, that sort of thing. But though yes, we did kill your Lord, and though yes, we do celebrate Easter by stealing a recently baptized infant and then drinking its blood, Tony doesn’t know anything about any of this.

So the best explanation is that he hates Jews for the same reason I hate Germans, namely that my co-religionists are treating the Palestinians under Occupation pretty much the way the Nazis treated us in the Warsaw Ghetto. If Sabra and Shatila aren’t grounds for Tony’s hatred then neither is Auschwitz grounds for mine.

But wait a minute. Hatred of Jews for Sabra and Shatila isn’t anti-Semitism. It’s anti-Zionism. Chomsky and I don’t exactly hate ourselves for Sabra and Shatila, but these atrocities certainly make us ashamed to be Jewish. Since Tony isn’t Jewish he can’t be ashamed. But he can be, is, and rightly so, outraged. That Goldie is neither ashamed nor outraged makes her the bigot, not him.

But now for the elephant in the room. Tony is on record as advocating that the Holocaust can be, and ought to be, as open to re-examination as any historical episode. Well, how could anyone disagree with that? And yet, apparently, some can and do. Apparently people like Goldie take opening the Holocaust to revisitation to be code for Holocaust denial. Tony should know this, so Tony is a Holocaust denier. Quod erat demonstrandum.

The absurdity of this argument aside, the problem with this closing of the canon is that it leaves no way that the Holocaust can be revisited. And that’s just the equivalent of Scriptural literalism. Scriptural literalism is an unsustainable theology. For example, since Jesus was alone in the Garden of Gesthemene, how does anyone know what was said there? The famous “Take this cup of poison away from me!” was invented. It was, at best, conjectured.

The Holocaust – more enlightened Jews prefer the theodically neutral term ‘Shoah’ – is not an event. It’s the name for a collection of events as numerous as the grains of sand on a beach. If I move one grain from here to there, have I denied the Holocaust? How many grains do I have to move, from where and to where, to count as a Holocaust denier? However that question is answered – and I’m prepared to accept any answer to it, provided it’s understood to have been a stipulated one – how does my Holocaust denial constitute anti-Semitism? How, for that matter, does it even constitute anti-Zionism?

Look. Let’s suppose that the whole beach is a lie. This is equivalent to saying that the entire New Testament was made up. Many if not most scholars are now of the view that the Exodus was a myth. How is such Exodus revisionism a threat to contemporary Jews? It isn’t. If I said to a Christian that her entire faith is built on an historical falsehood, how would that make me anti-Christian? It wouldn’t.

How, for that matter, would my Holocaust denial constitute even anti-Zionism? Zionism got off the ground in the 1880’s. The Balfour Declaration was issued in 1917, a quarter of a century before the Holocaust. So the Jews were going to have a homeland in any case. Once the camps were liberated, did the largely Jewish-controlled media exploit Christian guilt to garner support for a Jewish state? Of course they did. Do they continue to do so today? Of course they do. But calling them out on this is hardly an argument for the illegitimacy of the Jewish state. One could as readily argue that the non-historicity of the Cross means the Vatican should be leveled and turned back into a meadow.

To be fair, Tony is as guilty of this guess-the-enthymeme kind of thinking as his accusers. But that just says they’re both idiots. Tony is an idiot for thinking that a possible narrative is a true narrative, and his accusers are idiots for thinking that asking a question is providing an answer to it. But even if Tony were denying the Holocaust – whatever that might mean – this in itself is neither anti-Semitism nor even anti-Zionism. It’s true that some Diary-denialists – yes, there is such a thing – doubt the authenticity of the Anne Frank diary because they’re anti-Semites. But the because-relation doesn’t hold the other way around.

Tony Hall is an idiot, but he’s probably not a Holocaust denier, and he’s definitely not a bigot. Goldie Morgentaler, on the other hand, is undeniably the latter. I’m a bigot too. When I hear German spoken my back goes up. But I don’t allow my bigotry to close the canon on history. Nor do I allow it to ratify apartheid and genocide.

There, Goldie, I’ve said it! Now go ahead and petition President Mahon to have me join Tony in being forcibly relieved of my post.