SARAH BRAASCH AND THE BURQA BAN

 

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 NON-IDENTITY OF INDISCERNIBLES

“Waiter, there’s a fly in my soup!”

“Mais non, monsieur, zis eez our fly zupe, zee specialite de la maison.”

How do we resolve this issue? By deferring to the intentions of the chef? But he might dissimulate, to save the restaurant from having to offer a reduction from my bill. So the more general question to be grappled with here is how ought we to deal with extensional equivalences? And deal with them we must, because as with my bill at the restaurant, much can hang on how the matter is resolved. Such as? Such as a charge of false advertising, the distinction between capitalism and socialism, the defensibility of Creationism, the laudability of being law-abiding. The list goes on and on.

A return flight from here to there is advertised as $59, but when I get to the website’s checkout it’s $319. Is this bait and switch advertising? Certainly not. The difference of $260 is all taxes imposed by the government, or the fee charged by the credit card company, neither of which has anything to do with the airline. Are you going to say the 12% sales tax bringing a $9.99 shirt up to $11.19 is false advertising?

But hang on a minute. Aren’t there all kinds of taxes embedded in the $59 as well? Isn’t the percentage of the company’s contribution to its employees’ government-run mandatory unemployment insurance scheme likewise a government tax having nothing to do with the airline? So isn’t it entirely arbitrary which expenses to the airline are just part of the cost of doing business and which are not?

Arbitrary yes, but $319 sounds like too much to spend, and $13 sounds too good to be true, whereas $59 is what the focus group has decided sounds just right.

Many years ago, while I was putting myself through university, I drove a school bus two hours a day five days a week and lived in government-subsidized single parent housing. I had a friend who worked as a crisis intervention worker, alternating between ten hours a day for four shifts one week and then ten hours a night for four shifts the next. She lived in the identical unit next door, but paid fair market value. So after rent we each came home with identical disposable incomes. Wasn’t a school bus driver making four times as much per hour as a professional social worker? Certainly not. Unlike me, she had the dignity of full time professional work, which she hated, by the way. And she complained bitterly about having virtually no time to spend with her kid.

I’m not even a theist, let alone a Creationist. But I like to ridicule my Creationism-ridiculing colleagues by advancing in its place the Five Minute Hypothesis, according to which the world came into being five minutes ago, precisely as it was fine minutes ago, with all our pseudo-history books on the shelves where we now find them, and all our pseudo-memories in our heads where we now pseudo-remember them. All three hypotheses – my colleagues’ fifteen billion year, the Creationist’s six thousand, and my five minute – are non-falsifiable. Whatever would count as evidence for one would as readily count as evidence for either of the other two. So, I argue, since what’s at issue can’t be the so-called science, it has to be the politics.

Certainly not, says the atheist. Certainly not, echoes the Creationist. My father always said, Do what you’re best at. Well, my signature forte, or so I’m told, is my irritating supercilious grin.

According to Justice Devlin, if what the sovereign commands is egregiously immoral it can’t be a law, and therefore one needn’t obey it. By contrast, according to H.L.A. Hart, if it’s a constituent of a legal system and it has the right pedigree, it’s a law all right, but egregiously immoral laws ought not to be obeyed. So wherein lies the difference? It lies in Devlin wanting never to be a criminal, and Hart, in these circumstances, taking it as a badge of honor.

Differences that can make no difference are no differences at all. But the difference between fly soup and a fly in my soup does make a difference. It makes a difference in the bill. So the question before us is under what conditions should we allow a non-difference to make a difference? Then we can infer backwards to whatever it is that’s making this difference. This should be straightforward enough, shouldn’t it? Well, let’s see.

Okay then, suppose the chef experimented by putting a fly in a soup, tasted it, approved, and that’s how it ended up on my table. In that case I think I should pay. Suppose a fly landed in the soup, the chef tasted it to see if it was still acceptable, and decided it was actually an improvement. Once again I think I should pay. Suppose he saw the fly land and drown, but this time he served it without tasting it. Now I’m beginning to waffle. The intention was still there. But did he intend for me to eat a soup with a fly in it or to eat fly soup?

Suppose I make an atom-for-atom replica of the Mona Lisa and burn one of them but I don’t know which. Suppose further that this has become known. Is the surviving painting worthless, halved in value, or unaffected? Surely this is an empirical question. What sense would it make to say how it should be?

Suppose I might have just made up this story, but the art world doesn’t know whether I did or didn’t. Since there’s a 50% chance I made it up, there’s a 50% chance there’s a 100% chance it’s the original, which means there’s a 50% chance it’s the original. But since there’s a 50% chance I didn’t make up the story, then once again there’s a 50% chance it’s the original. So what difference does it make whether I did or didn’t make up the story? How would the art world deal with these equivalent probabilities?

It might be supposed that what matters here, in both the soup case and in this one, is whether there’s been a possible actus novus interveniens. The mere announcing that I could have duplicated the painting raises a question that wasn’t there before. It’s like my saying there’s no evidence whatsoever that so-and-so is a pedophile. If that were true, why would I be saying it? To say there’s no debate about anthropogenic global warming (AGW) is a performative contradiction. And so on.

What’s going on here, I think, is what’s being rendered salient. It’s always been the case that the original Mona Lisa could have been destroyed and replaced by a replica. It’s always been the case that my wife could have been switched with a functionally indiscernible android. What’s always been part of the background has just been made foreground, and now I’m creeped out by it. Could be fly soup. Could have been advertised as $319 in the first place. Could have been we’re all paid the same but some of us put in four times the hours that others do. Could have been only five minutes. Could have been do what’s right rather than what’s lawful unless it’s not right.

All men are mortal, except Jesus. All men are immortal, except everyone other than Jesus. These claims are extensionally equivalent, but do they mean the same thing?

Suppose you concede that there was nothing Jesus said that hadn’t been said a thousand times before. So the entire Christ story hangs not on its social gospel but on the salvific power of the Cross. Then what theological difference would it make at what age Jesus was crucified? So since we can represent Jesus as black as readily as we can white, we should be able to nail a plastic infant to a cross and parade it through the village on Good Friday. But we don’t. And that we don’t should be taken to falsify the claim that the Christ story hangs on the soteriology of the Cross. And what this shows, in turn, is that analyzing non-differences that make a difference is a way, indeed the way, to get at what’s really going on in the back of our heads. What’s going on in the back of our heads – if by ‘our’ I was speaking as a Christian – is that it’s not enough that God was willing to sacrifice what He had begot in order to reconcile sinful humanity to Himself. It’s that what He had begot must itself understand its sacrifice as a sacrifice to that end. An infant couldn’t do that. Only a grown man could.

But hang on. In saying that an infant couldn’t have understood that, we’re explicitly denying that the omniscience of God passed directly to what He’d begotten. And this, in turn, puts a lie to the opening passage of John. If at one time the infant knew not, but at another the adult knew, then sometime in the interim he must have learned. For him to have learned it must have been imparted to him. But to have been imparted to can’t just amount to God saying to him, “Just trust me on this.” Presumably he must have explained how the Cross would reconcile humanity to Him. But if God could explain it to Jesus, why can’t He explain it to us? Let it be granted that Jesus was smarter than the average bear. But it’s not a matter of intelligence. It’s a matter of conceptual coherence. So if God can’t explain it to us, neither could He have explained it to Jesus, in which case the adult was as much of a mindless dupe as the infant would have been. This does not bode well for kindergarten Christianity, if one thinks about it. Well, I guess some things don’t bear thinking too much about them.

Impressions to the contrary notwithstanding, my point here is not to trash any particular view about any particular subject. My point is simply that analyzing the difference a non-difference might make can do important conceptual work for us. It’s revelatory. It reveals to us what we might not have known we’ve been thinking. In some cases we’ll double-down on what we’ve been thinking, in others we’ll realize our thinking has been idiotic. In the case of pricing and incomes, I’ve learned to go straight to the bottom line. Hence capitalism and socialism are terms of rhetorical flourish, not economics. In the case of the Creationism debate it’s not about cosmology. It’s about the social conservatism that’s sometimes contingently attached to Creationism. In the case of criminality I’ve decided that, the law of the land be damned, an occupied people do have the right of armed struggle. And in the case of my might-be-android wife, I’ve decided she’s fungible, and so I’ve kept a spare in the closet.

That leaves the soup, for which my solution is to ask before ordering. If I’m averse to fly – just as were I allergic to it – I’d order something else. Though more likely my wife Andry – I mean Pam – and I would eat in a less expensive and pretentious restaurant.

TWO LECTURES YOU WON’T GET AT LAW SCHOOL

 

 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, 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.

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 braves 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!