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.

 

HOW TO DUMP TRUMP

 

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.

 

 

AN ALIEN PERSPECTIVE

 

Three score and eight years ago I landed on this planet, but I think it might have been from another one. I say this because I understand so little of why humans think as they do, and they seem to understand even less of why I think as I do. So that my cognitive apparatus wasn’t naturally selected for for living on this planet seems a not unreasonable hypothesis.

Where I think the stork was meant to drop me was a place as “red in tooth and claw” as this one, both between and within species, but where people with common cause knew it and acted accordingly. Here people seem to know when they have common cause, but they seem incapable of joint action even when such action is risk-free and guaranteed to win them the day.

It could be that what they’re afraid of is not failure but success. We don’t need to storm the Bastille and behead the tyrant. A critical mass of us could bring down a malfeasant government, be it of a nation or a village or a university, by simply withdrawing uptake to its authority. But if we do we’re worried that others might deploy the same surefire tactic against us. And so there’s an unwritten understanding that we won’t do this to each other.

If this is right, and I suspect it is, it’s a fascinating – I won’t say departure, so I’ll just say – twist in the logic of social evolution. It places stability ahead of virtually every other value, including prosperity, justice, even survival. Think of the hundreds of thousands who, even when the war was clearly lost, walked upright into volley after volley of Soviet artillery because the Fuhrer told them to. Think of our own policemen who, knowing full well that the law was unconscionable, nevertheless felt it their duty to arrest some acne-ed kid for enjoying a spliff in the park.

“Ours is not to reason why …” And yet I would have thought it is.

On the planet where I think I come from, we don’t march on the capitol or city hall or the Dean’s office demanding that he step down. We just all act as if he has. What can he do? Yes, he can appeal to due process. But to suppose due process is going to shield him from our indifference presupposes we’re not indifferent to what process is due. But we are, at least when it cease to do what it’s there for. It’s almost as if Germany had won the war

Another thing I don’t understand is why people think every question is a rhetorical one. I made the mistake of wondering aloud how 9/11 could’ve been an inside job with nary a one of the hundreds who’d have had to have been involved spilling the beans, and for my troubles I was dubbed a paid defender of the official story. Mind you, the same 9/11-Truther who’d reasoned this way about me got his own comeuppance recently when he asked a question about the Shoah and found himself written up in the newspapers as a Holocaust denier. So I suppose what goes around comes around.

On the planet where I think I come from, if the sentence is an interrogative we’re not asserting anything, we’re asking a question. By contrast, when we want to assert something we make it a declarative. I figured out fairly early on in my sojourn here how rhetorical questions function in human speech. But what I can’t figure out is how humans go about asking a question to which they don’t pretend to already have the answer. Is it possible that so many questions remain unanswered on this planet because no way has been found to ask them?

If this is right – and I think it might be – then this would explain why people can’t seem to get their shit together about global warming, or vaccination safety, or any of a hundred other challenges to the survival of the species. Solutions require answers to questions. But if no question can be asked without coming across as already having the answer, then no new answers can be forthcoming. Wouldn’t it be a cosmic embarrassment if the human race rendered itself extinct because of a grammatical trope? Grist indeed for Douglas Adams, though sadly he’s no longer with us.

I could go on, so I will.

There’s a South Park episode in which there’s a plane crash, and the deceased are being processed through the Pearly Gates. One of them asks which religion got it right. The presiding official checks his clipboard and, looking very surprised himself, announces, “The Mormons. Now who would have guessed that?!”

Well, as a matter of fact the Mormons did get it right. But after visiting the New World, Jesus went on to the one I now remember I do come from. He came, we chatted, and, not unlike what He did when He was here, on His way out to His next appointment He graced us with the set of rules it was His Father’s wish that we henceforth live by.

It’s not that we didn’t read them. In fact we agreed with the ones that were analytic. For example, “Thou shalt not kill,” He told us.

Ever? we asked.

“Well no, not when you should.”

And when is that?

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

So you’re telling us we shouldn’t kill when we think we shouldn’t kill. Is that it? Yeah, I guess we could manage that.

But some of the more substantive ones we thought were patently ridiculous. I shouldn’t lie with a man as with a women? But what if I want to?

“No, that’s gross.”

Have you looked at some of the women some of us sleep with?

So to make a long story short, we asked Jesus to thank his Dad for His kind counsel, and carried on as we had before.

But when I got here, people seemed to think that this kind counsel was somehow incumbent upon us, as if someone Who’d never shared an incarnate life with other incarnate creatures knew something we didn’t know, notwithstanding we’ve had thousands of years of experience to inform our judgments.

I just don’t get it. I’m not sure that even God gets it. I think why any of us would think we need to comport ourselves to His druthers is as much a mystery to Him as it was to my people back where I now remember I came from. But people here, thinking the answer is too self-evident to articulate, have forgotten what it is.

This happens a lot among the Earthlings. It’s like having the name of that actor on the tip of your tongue, but …

That you can google. But I’ve tried googling why I should want God to make me an instrument of His will, and all I get is a do-you-mean “Make me an instrument of Thy will,” followed by millions of sites offering to pray with me, and millions more offering to pray for me. I especially appreciate the latter. It is a much-needed service. Many of us are too busy to pray for ourselves. But for all that, not one of these sites seems to understand my question, let alone tries to answer it.

So there you have it. Just three of what are hundreds of disconnects between me and those of you who’ve been kind enough to host me lo these last three score years and eight.

I knew you’d ask, and so yes, I have called home, and I’ve been assured I will be picked up in the fullness of time. In the fullness of time, they said. In the fullness of time. What the hell does in the fullness of time mean?!