Sunday, September 18, 2005
going gone
Auction begins at 8 tonight and will be up for a week until next Sunday. No reserve on all items. Under the gavel: Ann Demeulemeester T-shirt customised by Patti Smith (donated by Ann Demeulemeester); Stella McCartney thigh-high fake leather boots (donated by Stella McCartney); Viktor & Rolf chiffon gown (donated by Tilda Swinton, worn at Cannes); Yohji Yamamoto black satin tent coat (donated by Irene Silvagni); and a set of Martin Margiela blouses blanches/white atelier coats (donated by Martin Margiela).
enthymeme ∙
9:40 PM
Sunday, August 14, 2005
away and reliefI like Secret Sundaze. But not as the culminating shot of 3 days worth of afterparties. Felt like gratituous brutality. When R says "I feel like a mess" she so accurately represents the fatigue at that precise moment of wastedness it sounds like the font of supreme articulation is spouting forth. I've only just recollected my wits about me. No contest.
enthymeme ∙
10:43 AM
feu cruelLotta in i-D (nice spread this time) is a case of precocity and sheer daring. I confess to laughing at her outrageousities two years ago but this is one of those patent instances of 'she who laughs last laughs fucking best'.
Having said that I would still like to respectfully indicate my puzzlement at seeing motherfucking (!) Peste Noire in shot no. 1 of said spread.
Hilarity.
enthymeme ∙
8:53 AM
Monday, September 20, 2004
every pearl is a lynx is a girl. . . is a Medúllan heartbeat in Athens. Sjón Sigurdsson is, as ever, revelatory:
One breath away
from Mother Oceania
your nimble feet make prints
in my sand
You have done
good for yourselves
since you left my wet embrace
and crawled ashore
Every boy is a snake is a lily
every pearl is a lynx is a girl
Sweet like harmony
made into flesh
you dance by my side
children sublime
You show me continents
I see the islands
you count the centuries
I blink my eyes
Hawks and sparrows
race in my waters
stingrays are floating
across the sky
Little ones
my sons and my daughters
your sweat is salty
I am why
enthymeme ∙
7:24 PM
Wednesday, June 16, 2004
west of the moonThese days, I dream that heaven is South Portland, Maine. In the summers we live in a house by the south coast, the whispered susurrations of waves and languid afternoons a mixture of beauty and paralysis. Your play gestates; long days melt into evening, summer segues into fall; and when winter arrives we leave the resplendent New England fall for the nightlights of London, where you've always wanted to be for the theatres, the museums, and Soho.
Where history and a vast expanse of green could meet at the Quadriga.
One night, as the stars spun on silent and invisible axes, you talked about Ava, about drama, and your eyes flashed a bright and woodland green. I recalled Lorca, and thought of you. "The duende is not in the throat, the duende comes up from inside, up from the very soles of the feet."
"Any woman - any artist, as Nietzsche would say - climbs the stairway in the tower of her perfection at the cost of a struggle with a duende - not with an angel, as some have maintained, or with her muse. This fundamental distinction must be kept in mind if the root of a work of art is to be grasped."
You see, duende was what you thrived on. It is what animates Mahler's Fifth. It is what authenticates Ava. And it lies between the auburn and the woodland.
Heidi mentioned that you spent lots of time in Boston, and drove up and across the border often. Restless, she said. We called it the agitated calm of the artist's spirit, craving flight.
Faustian and wandering.
The first time you saw Peace Descending on the Chariot of War, we were on a bus, passing by. Freshly arrived from Heathrow and bleary eyed. It was early morning and the sky was overcast. You made a note to revisit it next summer. We travelled east of the sun.
enthymeme ∙
2:45 AM
Tuesday, June 15, 2004
east of the sun
enthymeme ∙
9:01 PM
Saturday, May 22, 2004
recursiveYep, this sounds about right -
". . . Yet they do it because they're frightened. They're frightened of taking that leap of faith, but not knowing how to turn what excites them and motivates them into a way to make a living, and not sure they really have the talent, and not at all confident it will all work out in the end. And worried that by giving up the safe, reliable, however soul-crushing income stream and societal respectability, they'll have made a disastrous choice that will come back to haunt them in the future. And they can't take the risk. And so they end up here - not necessarily miserable, although in some cases probably, but resigned, beaten, conquered, tamed - by a life that isn't really what they feel like they were meant to be doing, isn't really what they feel like they want to be doing, and isn't really what makes them able to look in the mirror without regrets. If he stays here, this is who he will become. He knows it, and, after today, I know it."
Sounds exactly like the voice in my head asking the hard questions. But yes, I'm not sure I have the talent. I think I do; but that's different from knowing I do. Besides, you won't know until you actually have a go at it, and I don't have that kind of luxury. So maybe the field is self-selecting: if you don't have the backbone to make a career out of a passion, you probably aren't suited for it anyway. Well, qua academic at least - not necessarily qua philosopher - but that distinction, as we shall see, is moot. No one outside of the professional corps expects to be taken seriously.
Thus (if you buy the myth) the well-fed artist struggles for authenticity, and the spineless philosopher hides from his inadequacies.
Or purports to.
The better view though, is that - historically - the vast majority of the greatest philosophers never plied their trade as a profession (unless one is a sophist, of which there were many; or Kant, who is but one). Or at least, they weren't careerists about it. So why should it matter? After all, as Locke memorably put it, God did not make men two legged only for Aristotle to make him rational.
enthymeme ∙
7:29 AM
Tuesday, May 18, 2004
. . . [thus] Russell found himself at dinner sitting next to the principal of a respectable girls' college, who asked him: 'Why did you give up philosophy?' To which he is supposed to have replied: 'Because I discovered I preferred fucking.'
Ray Monk, The Ghost of Madness.
There must be something more important, one feels, though I don’t believe there is. I am haunted - some ghost, from some extra-mundane region, seems always trying to tell me something that I am to repeat to the world, but I cannot understand the message. But it is from listening to the ghost that one comes to feel oneself a ghost. I feel that I shall find the truth on my deathbed and be surrounded by people too stupid to understand – fussing about medicines instead of searching for wisdom. Love and imagination mingled; that seems the main thing so far.
Bertrand Russell, Letter to Ottoline Morrell.
enthymeme ∙
12:01 AM
Tuesday, May 11, 2004
bibliotekTurning the Pages.
Also, Christina Manning.
enthymeme ∙
9:37 AM
Sunday, May 09, 2004
a logician a day / keeps contradictions at bayGreg Restall's 'logician a day' project has been re-posted for your edification. The serialized profiles may be found here. Most of the old school are present (no De Morgan?) as are most of the usual suspects post-Frege. Dr Restall has asked for additional suggestions, so I will mention a curious omission: Mr David 'Plurality of Worlds' Lewis is there - but C.I. 'S5' Lewis isn't. Founding modal logic merits automatic inclusion, I think.
Update: There's Hintikka too.
enthymeme ∙
9:03 AM
Saturday, May 08, 2004
sliced monadsSpeaking of which, the Library of Living Philosophers is probably the cleverest innovation in philosophy since sliced monads. Every serious philosopher, I think, should have a set of these gems. Unfortunately, they are hard to come by (especially when one tries to acquire them on the cheap) and bloody expensive - thus it is that I have only managed to locate and acquire two miserable volumes (Moore and Ayer) out of twenty-nine. The really interesting ones (and these are rare as sliced gonads in the best of all possible worlds) are the Einstein, Russell, Carnap, (C.I.) Lewis, Quine, and Popper volumes - the Popper volume runs into two volumes because of the extraordinary length of detailed criticism and riposte. But it's probably worth every penny and a left monad.
enthymeme ∙
11:45 AM
einstein too, was most unkindJohn Passmore, eminent historian of philosophy and practiced flogger of logical positivism, once remarked that "logical positivism is dead, or as dead as a philosophical movement ever becomes". And that has been the oft-heard refrain ever since. What is less well known however, is Einstein's contempt for the Vienna Circle and its adherents. P. A. Schilpp, then-editor of the Library of Living Philosophers, had tried to get Einstein to contribute to the Carnap volume, but the invitation was declined. In his reply to Schilpp, Einstein had the lowdown on Carnap et al.:
I cannot accede to your request [to contribute to the Carnap volume] . . . I would not be able to do justice to this swarm of incessantly twittering positivistic birdies . . . . I think that the positivistic nag, which originally appeared so frisky, after the refinements which it had of necessity to undergo, has become a somewhat miserable skeleton and has become addicted to a fairly dried-up petty-foggery. In its youthful days it nourished itself on the weakness of its opponents. Now it has become respectable and finds itself in the difficult position of having to make a go of its existence under its own power, the poor thing.
Well, tough shit, Carnap.
* Einstein, Albert; Letter to P. A. Schilpp, quoted by Schilpp in "The Abdication of Philosophy", Kant Studien, 51, 4 [1959-60], pp. 490-91.
enthymeme ∙
9:02 AM
Wednesday, May 05, 2004
a memorable fancy
enthymeme ∙
6:51 AM
Monday, May 03, 2004
Promise me you will not forget Portofino.
. . . Across the harbor? A yellow church. A cliff.
Promise me you will witness the day diminish.
And when the roofs darken, when the stars drift
until they shatter on the sea's finish,
you will know what I told you is true
when I said abandonment is beautiful.
Spencer Reece, "Portofino".
enthymeme ∙
12:48 AM
Saturday, May 01, 2004
daybreak
enthymeme ∙
10:57 AM
Friday, April 30, 2004
bye bye IAThis is probably not her idea of academic superstardom, but the Invisible Adjunct has been making the news following her decision to call it a day. As most readers are doubtless aware by now, the IA's decision to leave log and adjunct life (for good, and naturally, for greener pastures) was deemed newsworthy enough for The Chronicle of Higher Education to track her down for an interview. She agreed - on condition of anonymity. The piece milks that for effect of course - it titillates by dropping a few vague-ish hints along the way as to her identity (but predictably, gives nothing away). Thus the ever elusive Adjunct remains suitably Invisible at point of departure.
The IA's dispatches from the trenches of higher education will be missed. If only for the reason that her's was one of the first blogs I read with anything approaching regularity. Sentimentality aside, the IA was, for me, a reassuring voice in the wilderness at a point in time when I sorely needed it. Her cold-eyed appraisal of the academic job-market - from an untenured perspective - was a bracing and timely reality check for someone giving serious thought to doing philosophy with a view to entering academia. Opting to do philosophy meant foregoing law school in its stead - a decision not lightly taken, ever. Choosing one or the other meant foreclosing some options for good; so the decision was, to put it baldly, momentous. It didn't help that I badly wanted to do something I liked - something I had a passion for - and that what I wanted to do was, on the face of it, not terribly appealing: a good seven years (at least) in grad school, followed by a subsistent existence for another five (at least), with no end to debt in sight. All considered, it was a harrowing proposition, and in retrospect, nigh-impossible. I knew that the academic job-market for the humanities was dismal, but I did not know just quite how bad it was. The philosophers I knew were sanguine about my prospects - but then again, they were tenured; easy for them to say. Others were less sure, and although they did warn me about how the market was saturated with PhDs, they were - crucially - never discouraging.
At any event, I had my doubts, and that gave me pause - enough pause, at any rate, to decide that philosophy was too risky a venture and not worth pursuing. I thought I had made the right choice - at least until I began to second-guess the decision, at which point I would go through the whole process redux. The IA though - that's when the IA enters the picture - set my perspective aright when I chanced onto her weblog one fine morning: I was told, in no uncertain terms, that it was a shitstorm out there. That one should think twice and then again before taking the path less trodden. That mounting and crippling debt was a real possibility; that failure was not an option; that it was all or nothing. I felt, on reflection, that this was true as far as philosophy went - it was academia or bust. Furthermore, her experience and those of others suggested that the idyll of academic life was more ideal than real; that when it came to tenure, a miss was as good as a mile - and that there was opportunity aplenty for failure - if you weren't in for the long haul, you were out. It was daunting, but it wasn't so much the lack of room for manoeuvre that was daunting - it was the impression that being good was not enough. If the locus of control wasn't internal to me, but subject to the vagaries of the academic job-market, then the risk, and the uncertainty, was all the greater. That decided it for me. The financial burden of graduate school would have been too steep to mount considering the meagre returns to be had - and it would have been recklessly irresponsible of me to forge ahead in spite of the foregoing considerations. It just wasn't worth it, and I was not about to make ridiculous financial demands on my loved ones just because they were willing to give it.
The IA set things in perspective and crystallised my determination not to do something that would have led to grad school and beyond. And I probably saved myself lots of grief in the process. And so it's curtains down for an invaluable resource and trove of sound advice. So long, Invisible Adjunct.
enthymeme ∙
8:52 AM
Tuesday, April 27, 2004
love and the scytheShades of Dolores
and fragments from a Hymn to Proserpine -
Goddess and maiden and queen, be near me now and befriend.
Thou art more than the day or the morrow, the seasons that laugh or that weep;
For these give joy and sorrow; but thou, Proserpina, sleep.
Sleep, shall we sleep after all? For the world is not sweet in the end;
For the old faiths loosen and fall, the new years ruin and rend.
. . . Where are they, Cotytto or Venus,
Astarte or Ashtaroth, where?
(They are fled, and their footprints escape us,
Who appraise thee, adore, and abstain,
O daughter of Death and Priapus,
Our Lady of Pain.)
Astarte or Ashtaroth, where?
(They are fled, and their footprints escape us,
Who appraise thee, adore, and abstain,
O daughter of Death and Priapus,
Our Lady of Pain.)
enthymeme ∙
7:50 PM
Monday, April 26, 2004
ten yearsJust because. And thus it bears retelling:
当离开一年、两年以后，记忆中的人和世界都明显得不一样了；十年八年之后，不知到还能认出什么？人，第一个十年是朦胧，第二个十年是幻想，之后，是成家立业，是发现，是认识，是思考与创造的十年再十年。四个我的同龄人，只是因为他们试图去了解他们生长在的社会，只是因为他们试图表诉自己独立的思想和观点，只是因为他们不想无动于衷，只是因为他们是中国人生活在中国，所以他们要在囚牢里度过他们最宝贵的十年八年。我，十岁离去中国，那时仍是朦胧之中；十六年后，因为我在美国，在异国他乡，我可以毫无畏惧得去发现，去认识，去思考，去呐喊我自己的声音。但若不是十六年前的一个偶然，那铁栏之后的青年也许就是我；或许我的身体仍可以自由，但我必须压抑着自己的声音，昧捂着自己的良知，不去认识，不去思考，不去惹祸找麻烦。
"After having left for a year or two, the people and the world that I once remember become noticeably different. After the passage of five to ten years I am not sure what I could recognize. The first ten years of a person's life are an emergent haze. The second span of ten years is one given to our aspirations, and thereafter, it is multiple ten years of building one's family and career - two score and ten of our natural lives spent on discovery, thought, creation, Bildung.
"Four of my contemporaries - just because they attempted to understand the society they grew up in, articulated their independent thoughts and views, and, just because of a desire not to be aloof and indifferent to the woes of their country, and because they are Chinese living in China; that is why they now have to spend their next eight to ten most precious years in jail.
"I left China at the age of ten. Sixteen years after, because I am in America, away in a foreign land, I can now, without fear, discover, and understand, and think and say what I think out loud in my own voice. But, were it not for that chanced opportunity sixteen years ago, the youth behind those iron bars could be me. Or maybe even if I may be free, I may have to suppress my voice, stupidly seal my conscience, be content not to learn and understand, not to think, not to go look for or court trouble."
十年，对与社会，对与历史，对与天体运行，是短暂的一刻；而一个人一生又能有几个十年？一个人十年可以认识多少、发现多少、创造多少、爱多少、生活多少……而一个人在高樯铁窗后十年远离生活，那又是什么样的苦涩？为什么只因为是中国人就必须选择或者人身的安宁或者良知的自由，选择或者在家乡苟且渡事或者在异地浪荡居客？中国人也是人，是顶天立地、有尊严、有自由的人；我们为什么要在两者之间做一个选择？
"Ten years, in regards to society, to history, and to the movement of the celestial or heavenly bodies may be momentary - a mere scintilla of time; but how many 'ten years' does a person have? How much can one discover, create, love and live in those ten years . . . . And what hardships will a person have to endure behind high walls and iron windows away from ordinary life - for ten years? Why is it that being Chinese, one must choose on one's peace or perhaps on the freedom of one's conscience, or perhaps choose to carelessly pass through the affairs in one's native place or be a wandering guest resident in a foreign land? We ordinary Chinese are human beings too, a people the nature of which is dignified and free. Why should we have to be made to make such choices?"
We - the diaspora - are free but for an accident of our history. But we too often forget.
enthymeme ∙
2:15 AM
Saturday, April 24, 2004
'These walls,' said he, 'were once the seat of luxury and vice. They exhibited a singular instance of the retribution of Heaven, and were from that period forsaken, and abandoned to decay.' His words excited my curiosity, and I enquired further concerning their meaning.
Radcliffe, A Sicilian Romance.
enthymeme ∙
10:26 AM
Tuesday, April 20, 2004
meme*I found it amazing just to look at.1
Something about the way they put things together on the tracks made him conclude it was hopeless.2
Without monks in the wilderness, the worldly clientele might not be impressed and inclined to suppose that the Order has anything very special or different to offer them - for it knows its monsignors a little too well; but without the monsignors in the salon, arid monks might not have those prestigious connections with the centres of power which demonstrate that the movement is indeed blessed.3
Indeed the fact that tort liability may be grounded in an 'assumption of responsibility', means that a negligent breach of contract may often give rise to claims in both contract and tort.4
The basic terms which critics, artists, and historians have hitherto used with confidence have lost much of their validity in this assessment.5
And I believe that only a revival of interest in these riddles can save the sciences and philosophy from narrow specialization and from an obscurantist faith in the expert's special skill, and in his personal knowledge and authority; a faith that so well fits our 'post-rationalist' and 'post-critical' age, proudly dedicated to the destruction of the tradition of rational philosophy, and of rational thought itself.6
* Take the nearest six to ten books from your shelf; open them to page 23, and find the fifth sentence: write down those sentences and arrange them to form a short story; post the text in your journal along with these instructions.
1 Bryan Magee, Clouds of Glory: A Hoxton Childhood.
2 Elizabeth Wurtzel, Prozac Nation.
3 Ernest Gellner, Words and Things: An Examination Of, and An Attack On, Linguistic Philosophy.
4 J. Beatson, Anson's Law of Contract.
5 Ernst Gombrich, Art & Illusion: A Study in the Psychology of Pictorial Representation.
6 Karl R. Popper, The Logic of Scientific Discovery.
enthymeme ∙
12:53 PM
Saturday, April 17, 2004
assume the positionIt is impossible not to be moved by the painful eroticism of Steven Shainberg's Secretary. Indeed, I can't remember the last time I was moved by a surfeit of painful eroticism. Secretary is a film that succeeds on multiple levels - as a sympathetic rendering of the dominant/submissive archetypes in BDSM mythology, as an uneasy but compelling peep into the odd dysfunctions of the main characters, as psychosexual drama, and as an unexpectedly beautiful love story. But we reach deepest construing Secretary as an allegory for the darkness at the heart of all truly meaningful relationships.
The movie begins in medias res as it were - with a scene excised from midway through the narrative. It is a pivotal scene, puzzling at first because we're at a loss as to why Lee, the title character, is performing her office duties with such unnerving efficiency while held by a restraint. We then cut to six months before her predicament and begin charting her disaffection with herself and her growing affection for playing the submissive. She is fraught with desire for Edward, her mysteriously opaque boss, who has himself rather odd proclivities, and both soon come to realize that they complete the deviant in the other.
The unwritten subtext - from pain to pleasure - or rather, no pain without pleasure, is a delightful turn of script that imbues this romance with more realism than any of the usual pastiches ever could.
Erin Cressida Wilson has written an original and more than competent screenplay which mirrors our inner lives so extravagantly that it could only be done indirectly. Which is why it makes for such moving insight: the allegorical point is the more effective because the nuances of our emotional and psychical moods do not translate to the sturm und drang of verbal melodrama. The dialogue is deliberately sparse, monosyllabic. We are left to discern the inner lives of Lee and Edward through the lacunae punctuating their exchanges. As a metaphor, it makes a blunt statement about women's predilection for the expressly unsaid. As a dramatic device, it is a sophisticated appeal to our imaginations which requires that expressive acting be brought to the fore.
The acting is sumptuous. Maggie Gyllenhaal as Lee is incandescent. James Spader, fresh from radiating sexuality in Sex, Lies and Videotape and White Palace, radiates, well, older-man sexuality as E. Edward Grey, Esq. His is a stirring performance, one of unremitting and repressed intensity.
Cast against Angelo Badalamenti's enlightened score and the Baroque floridity of Edward's office, Secretary represents our emotional frustrations and suffering in terms stark enough such that we grasp it on the surface, vividly. As a character study it is both a complex and sincere appreciation of unusual and cruel relish, feeling, physical hurt, punishment, love and (slavish) devotion: our emotional lives in extremis.
enthymeme ∙
6:38 PM
Wednesday, March 17, 2004
i-D 242
enthymeme ∙
11:06 PM
Sunday, March 07, 2004
no michael moore eitherJohn Rhys-Davies is a rather uncommonplace figure in Hollywood - a conservative of sincere conviction whose candour has lately landed him in no small measure of controversy. Not one to speak softly and carry a big axe then?
On liberal paradiso:
Conservatives indeed are scarce in Hollywood. "You introduce a Republican to another in Hollywood, it's like a meeting between two Christians in Caligula's Rome," he observes.
Interestingly,
Rhys-Davies used to be a radical leftist, as a university student in the '60s. He first started to come around when he went to the local hall to hear a young local member of parliament by the name of Margaret Thatcher. "I went to heckle her," Rhys-Davies says. "She shot down the first two hecklers in such brilliant fashion that I decided I ought for once to shut up and listen."
Quite the dwarf. More here.
enthymeme ∙
9:09 PM
truth is
Yelena: The truth, however dreadful it is, is not so dreadful as uncertainty.
Sonya: No, uncertainty is better. . . . One has hope at least.
Chekhov, Uncle Vanya.
enthymeme ∙
11:24 AM
Thursday, March 04, 2004
no heretics plz, we're leftiesJohn Holbo guesting at Crooked Timber wonders what could be wrong with "lefty profs maintaining their iron fist of hegemonic dominance" in the academy. In a long drawn-out debate that originated at his, which then got transferred over to Timber, we are told by certain quarters of the commentariat: "nothing wrong, and indeed we should maintain said dominance by hook . . . or by crook!" Now, I'll leave the reader to examine the merits of that debate on his own, if it so interests him (it reads like arguing with a flat-earther, but is nevertheless worth ploughing through - for a laugh). Anyway, one of the things obscured by the whole kerfuffle was the question of merit. The crackpots who actually argue for discrimination against conservatives seem to think that an aspiring academic's conservatism necessarily has a correlation to the quality (or lack thereof) of his work. (Yes, shades of the old "conservatives are stupid" meme propagated by Robert Brandon at Duke.) This, on the face of it, is preposterous. Someone may obviously be an excellent physicist, but harbour conservative political beliefs. I fail to see how one's view of politics necessarily has anything to do with one's work in quantum electrodynamics, or computer science, or stochastical dynamics, or art history, or much else but politics for that matter. Needless to say, I see even less of a correlation between a person's political convictions and his competence as a mathematician, or as a philosopher of mind, or as an English professor. Where there may be a connection - e.g., in law, economics, or political science - surely the merits of an academic's work should speak for itself rather than be dismissed out of hand as being too conservative and unworthy of serious consideration?
Any such divined connection is contrived (yet there is no shortage of left-wing nuts who are willing to give Professor Brandon's pronouncement more credence than it deserves - i.e. none). Remember Chomsky and the Leiterian argument from induction? "Noam is not likely wrong on most things since he's a clever philosopher. So we must interprete him charitably." Oh really. How about Brandon? Try interpreting him charitably, perhaps? But I digress. Take for example the lame argument that conservatives, having chosen not to renounce their beliefs in the face of liberal persuasion, are more "close-minded" and hence unsuited to life in the academy. Surely this is a stretch? Clearly, there are ideologues and dogmatists on both sides of the political spectrum. And in religion too, given that religion is dogma. Yet nobody seriously suggests that Aquinas or Plantinga are inferior philosophers just because they are "close-minded" on the question of religion - and certainly no uncrazed liberal would suggest that the religious be excluded on that account. Or take Hegel. Hegel was perhaps the arch-conservative of his time (in the broadest sense that he was for the status quo and the existing social order) - as was the (arguably) regressive Plato. Presumably, on the "conservatives are stupid" argument, they would likely have failed to make a mark in the modern academy? An absurd proposition, given that both thinkers are assured their places in the pantheon of philosophical greats. No one serious is going to suggest that they shouldn't be there on account of their "conservatism". Nor does anyone figure that Hayek and Friedman are Nobel-unworthy economists just because of their political leanings. How about Eugene Volokh? UCLA shouldn't have hired him because he's right-of-center? Or how about card-carrying capital C conservative Richard "C" Posner? Even if you disagree with my examples, I think it is not especially difficult to conceive of outstanding academics who - had they been discriminated against and prematurely (and unfairly) excluded as they embarked on their nascent careers - would have constituted a loss to academia. Besides, this argument begs the question that conservatism is decidedly and demonstrably wrong (which it isn't). As John Holbo notes:
At the end of the day, lefties cannot plausibly posture as Platonists who have left the cave and apprehended cognitive truth beyond the ken of their conservative, troglodyte brethren. It's just that lefties and conservatives don't agree. Fundamental differences in moral temperament.
As such, the insistence that political conservatism is somehow correlated with a lack of academic merit is itself without merit. The fact that Chicago - that purported bastion of conservatism (at least in law and economics, if not the humanities) - is a university of singular academic distinction says all that need be said on the matter.
And then there are the liberals who worry about conservative agenda-setting. My response is, so what? It is true that every one has an agenda, more or less. That which sticks in the craw is whether you agree with his or her agenda or not. Where the agenda is irrelevant, I don't see why it should constitute a sticking point for hiring committees - nor should it. Where it is relevant, there's nothing to stop you from excluding say, the creationist biologist on the grounds that his or her work is not up to par - and if he or she does not subscribe to the bedrock of modern biology that is the theory of evolution, then it is likely that the work won't be up to par. And you can exclude on that - on the merits. But not otherwise.
Given that political considerations are quite irrelevant to the question of academic merit, why should academia damage itself by excluding academics based on irrelevant considerations? Dr Holbo suggests that:
Even if the academy ought to be democratic in some sense, in another sense - intellectually - it had better be aristocratic. The whole point is to discriminate: separate the good ideas from the bad, all that. 'It is, at present, the consensus in a number of fields that conservative ideas are beyond the frozen limit. Thank you! Come again!' Of course, this is unsatisfactory, for reasons whose production I leave as an exercise to the interested reader.
And so it is unsatisfactory. The main business of the university is the pursuit of knowledge. And I happen to believe that knowledge grows (the paradigm case being scientific knowledge) because people disagree - and because they set out to refute that which they disagree with. Whether successful or not, we get as an end product either some new theory that has shed the weaknesses of its predecessor - or a strengthened, reinforced and more corroborated theory of old. And if some of that disagreement is politically motivated, so be it. The genesis of criticism is irrelevent to the merits of that criticism. And this is why academic freedom from political coercion is important - and why political straight-jacketing is inimical to the pursuit of the growth of knowledge. It's not just a matter of aesthetics: orthodoxy is quite the death of intelligence. And homogeneity as such is bad news for academe. Accordingly, a healthy degree of heterodoxy is essential, and people with whom you disagree are useful for just this reason. (Remember the unjust crucifixion of one Bjørn Lomborg? The dissent-crushing broadsides leveled at The Skeptical Environmentalist? And his eventual vindication? A lot of it was vile, politically motivated stuff, and more spittle than substance.) Now, if we agree that political beliefs are irrelevant - and most reasonable left-of-center liberals do - and if exclusion is based on political affiliation, then there could be a very real danger of excluding the meritorious because of considerations that are irrelevant to furthering the ends of knowledge.
It is the equivalent of an ad hominem attack: an attack on the man instead of the merits of his work. If this is bad argumentative form, it should be bad hiring form as well. In both contexts, the aim is the pursuit of knowledge, and the academic, qua pursuer of knowledge, owes it to himself, academia, and perhaps his students to pursue truth and the growth of knowledge regardless of considerations extraneous to that activity. Universities would be in dereliction of their epistemic duties - and doing themselves a grave disservice - were they to do otherwise.
enthymeme ∙
5:01 PM
Wednesday, March 03, 2004
only prudentYesterday, someone from Cravaths dropped by.
As you never know who might chance onto your blog, staying pseudonymous is more or less the prudent thing to do - if only to avoid the nightmare scenario of having something you wrote come back to haunt you during an interview. Seeing that I have a predilection for the odd intemperate post (or two), this is a valid cause for concern - were I otherwise than pseudonymous. At least one law student was outted during an interview (without dire consequence), while yet others have had to bear the fall-out of their blogging indiscretions. So it's no surprise that some have chosen to err on the side of prudence with regards to pseudonymity:
Using a pseudonym is [a] risk-reduction technique, one used by two lawyers I know. One is a public lawyer who discusses political topics that might annoy supervisors of different political parties. The other is a potential judge who remembers some nasty judicial confirmation fights and doesn't want to leave an easily accessed electronic paper trail that will make him an easy target for future opponents. While the use of pseudonyms has its advantages, it can also reduce the personal and professional benefits of blogging.
Not that I care for the "personal and professional benefits of blogging", whatever these may be. Accordingly, I shall remain pseudonymous: it's only prudent.
enthymeme ∙
12:26 AM
Tuesday, March 02, 2004
philosophical powers!The Overmen of philosophy now have their own patented Ad Hominem figures!
Recommended: David "The Inductor" Hume, "Vindictive" Wittgenstein, and "Nefarious" Nietzsche! Don't forget your very own George "The Bishop" Berkeley™ with patented Eye-Closing Action!**
See stockists for details!
* Close his eyes and his enemies disappear!
* Eye-closing defense is vulnerable to Samuel Johnson's™ Rock-Kicking® attack.
enthymeme ∙
6:38 PM
Wednesday, February 25, 2004
a matter of temperamentI don't usually partake in online quizzes - as a general rule, they are lame. But this one was too good to pass up. Besides, even the usually humourless Clerk has on occasion indulged in a frivolous quiz or two. And so . . .
YOU ARE RULE 12(b)!
While you might be a defendant's best friend, you aren't exactly polite to others. You have seven separate grounds on which to dismiss a plaintiff's case. You are a bit paranoid, since if you fail to raise your 12(b)(2,3,4, or 7) in a motion or a pleading with one of the other 12(b) defenses or a 12(e) motion, you waive those objections for the rest of trial. It is clear that 12(b) is the biggest bully of the rules of the civil procedure. While it is true that many states have modeled their motions to dismiss off of rule 12(b), are you sure that you truly want to model your personality after such an obnoxious rule?
Which Federal Rule of Civil Procedure Are You?
brought to you by Quizilla
Fine specimen of a rule, that. Not entirely relevant to my jurisdiction, I'll grant. But nonetheless pedigreed. I wonder which
enthymeme ∙
6:57 AM
Wednesday, February 18, 2004
wittgenstein, ingrateOver at Crooked Timber, some cliché-meister predictably had to mention Wittgenstein. Why Wittgenstein? Why always Wittgenstein? Why not Kant? Or Hume? Or Mackie? Or Plantinga? Are they less profound on religion? Anyway, Chris Bertram writes:
On Wittgenstein - I think I'm right in saying that this all comes from Schopenhauer (and, in a sense, from Kant). But my history of German Idealism is shakier than it should be.
Bob McManus responds:
Although I am sure Wittgenstein was to some degree familiar with German Idealism, as far as I remember, closer sources are Frege and the philosophy of mathematics, and Russell's [and] Whitehead's [Principia Mathematica].
Ophelia Benson adds:
It's interesting about the Wittgenstein-Schopenhauer thing - I just read something about that in Bryan Magee's Confessions of a Philosopher (so that's why it interests me, she said solipsistically). He is strongly convinced that Schop[enhauer] was indeed a big (and little-acknowledged) influence on Wittgenstein.
Bertram is closer to the mark, of course - the metaphysical framework of the Tractatus is Kantian-Schopenhauerian. Except that where Schopenhauer speculates about the nature of the-thing-in-itself, the noumenon, or the will, Wittgenstein maintains a disciplined Fregean silence.
It is also true that, as Magee states, Wittgenstein's Schopenhauerian leanings are little-acknowledged relative to the vast canon of Wittgenstein scholarship. (In contrast, Schopenhauer scholarship is not quite as tardy - Christopher Janaway and Julian Young, among others, have made the connection.) How important this omission is to a rigorous study of the early Wittgenstein I cannot say - but it seems to me that such an omission could be very glaring indeed - a whole, misguided school of positivism arose from just this failure to grasp Wittgenstein's (unsaid) metaphysics.
A good introductory précis to all this is John Holbo's very well-written dissertation on Wittgenstein's Tractatus - Chapters 12 to 15 contain a helpful summary of the strands of influence that come together in the early Wittgenstein. It is also suggestive that Wittgenstein hints (in characteristically oblique fashion) that the philosophy of the Tractatus is unoriginal, and that he makes no claim to novelty. What is unique though, is his amalgation of Frege's logical austerity with an idealist metaphysics. There is also a wealth of other hints besides (inexplicably, for someone who is forthcoming about the influence of Russell and Frege, Wittgenstein exhibits a stubborn reluctance when it comes to acknowledging the main man - i.e., the man who gave him his philosophical backbone) - the ladder metaphor, the image of the eye and the visual field, "The world is all that is the case" (cf. "The world is my representation"), "The limits of my language means the limits of my world" (cf. "The world is my will and representation"), and so on.
Some of these are found in his notebooks, others in the Tractatus. The fact that Wittgenstein copied/reproduced Schopenhauer almost wholesale in his notebooks (which were not intended for publication), together with his expression of indifference as to whether any one else (surely he was alluding to Schopenhauer!) has articulated the same thoughts as he did suggests to me that he was not one to acknowledge his intellectual debts readily. But that's not the end of it. Stylistically (at least with regards to the employment of aphoristic metaphors), Wittgenstein borrowed from Schopenhauer too. The difference is that, where Schopenhauer is the paragon of clarity, Wittgenstein is cryptic.
Christopher Janaway is rightly scathing in his assessment of the early Wittgenstein. From his Self and World in Schopenhauer's Philosophy:
. . . the influence of Schopenhauer on Wittgenstein was considerable and systematic, and . . . reading him against this background gives a degree of overall coherence to parts of his early work which are otherwise all but inexplicable. However, it has also been apparent that Wittgenstein was neither very original, nor very clear headed, in the way in which he took over terminology, images, and arguments from Schopenhauer, nor very eager to reveal his sources.
What an ingrate. So much for inarticulable metaphysical frameworks.
enthymeme ∙
3:24 AM
Friday, February 13, 2004
two hundred years and a dayNot long ago I became acquainted with the Kantian philosophy – and now I have to tell you of a thought I derived from it, which I feel free to do because I have no reason to fear it will shatter you so profoundly and painfully as it has me. We are unable to decide whether that which we call truth really is truth, or whether it only appears to us to be. If the latter, then the truth we assemble here is nothing after our death, and all endeavour to acquire a possession which will follow us to the grave is in vain. If the point of this thought does not penetrate your heart, do not smile at one who feels wounded by it in the deepest and most sacred part of his being. My one great aim has failed me and I have no other.
Heinrich von Kleist, Letter to Wilhelmine von Zenge, March 22, 1801.
Immanuel Kant died two hundred years and a day ago on February 12, 1804. He never left Königsberg.
Heinrich von Kleist was found on the banks of the Wannsee on November 21, 1811, dead from a single self-inflicted gunshot wound to the head.
enthymeme ∙
8:57 AM
Monday, February 09, 2004
anarchy at the v&a!Doyenne of the outrageous, the controversial and all that is unright in the world of fashion - the inimitable Vivienne Westwood descends on the Victorian & Albert for four months of exhibitionist mayhem. Featuring select pieces from the Westwood archives along with the V&A's standing collection, the exhibition promises to be both paean and vivid insight to 30 years of radical couture.
Professor Westwood, who is Professor of Fashion at the Berliner Hochschule der Kunste, is no stranger to the avant-garde. Indeed, she is the avant-garde. As the most influential British designer across generations, she has designer's noûs in abundance - and a way with fabric on par with the other veritable savant of fashion, Issey Miyake. Yet the genius of her creative unorthodoxy transcends the flighty abstracta of Miyake, or even the edgy flash of Dior Homme's resident genius Hedi Slimane. If one were to make such comparisons - if at all - Alexander McQueen's sophisticated glam probably comes closest as the pallid, vampiric cousin to Westwood's gallivanting aristocrat. In any case, Professor Westwood never loses her voice even in such august company, and is distinctively and consistently provocative in the way she eschews the clichés and truculent abandon of lesser designers. The attenuated eye will note among her eccentricities a quaintly recurrent pirate motif - a legacy of that first, seminal, runway show presented at Olympia in London in the Spring of '81. All collections thence have been redolent of her self-avowed plunderist tendencies - as evinced by the odd dimensions and historical milieus they inhabit: the rural 17th century landscape of pre-Revolution France; the dynastic excess and opulence of one Marie-Antoinette in a France on the cusp of revolution; the tartan and skirmish-forged regalia of a Scotland and its highlands deep in internecine warfare; all perhaps in contrast to the calm Englishness and subtly luxuriant expressions of corsetted Victorian propriety. From pirates to peasantry - one finesses from observing her work the raiding of history - that aperçus and brilliant storehouse of ideas few can match in synthesis - the leftovers of which are transmuted into diffusion lines like Anglomania (which is, interestingly, represented by graffiti depicting a pirate's scimitar).
As such, the drama and thematic integrity of her designs cannot be faulted in the way that say, Jil Sander may be faulted for bland formalism and a failure of the imagination. There is a story behind every collection - a Gestalt whole - which seems to me to sum up the visionary force behind every Westwood creation.
The subversion of norms to the ends of fashion is a unifying trait in almost every Westwood piece. For all the richness and wealth of talent on display, it is the fearless non-conformity and confrontational audacity of her designs that place her perennially ahead of her time - even at 63. Nowhere is this more iconically evident than in the famous clock propped atop the entrance to her shop at World's End, which, complete with 13 hours, spins backwards! But then again, what are icons to an iconoclast? Fodder, one supposes. Which is trite - but true as truisms go - and an accurate reflection of her bizarro relationship with Malcolm McLaren. They were, as it were, the Stieglitz and O'Keeffe of the fashion world. Now, facile comparisons aside, the parallel is apt - for both played the muse to the other in formidable artistic partnerships that yielded more than the sums of their parts. (Although it must be said that in the dubious case of McLaren, the merits of his artistry are, indeed, suspect.)
Thus immaculately poised at the razor edge of her craft, with the uncanny ability to sense social and cultural change in the air before anyone else does, and always dangerous - the way sex is dangerous - it is little wonder that the sheer brilliance and originality of output of Westwood's oeuvre can only be classed as legendary. Suffice to say that, year on year, legions at Central St. Marts (of which our enfant terrible Mr McQueen is a recent graduate - class of '91) aspire to royalty.
If there is one complaint, it is that Mrs Westwood seems to put far more creative effort into her female lines (both main and diffusion) than into those for men - and it shows. The male supplicant, for all his adulation, is left wanting. Which leads one to speculate whether this imbalance is not, after all, a relic of her past (over-)involvement with erstwhile collaborator Mr McLaren. At any event, it is an imbalance one is keen to see addressed in forthcoming seasons. With design mantras like
It is not possible for a man to be elegant without a touch of femininity
who wouldn't be (keen)?
Her work may be seen, in the last analysis - as art - perhaps even as agitprop - as an incitement to rebellion, as was the case when she lent voice to a generation of malcontents by clothing The Sex Pistols. The palpable anti-establishment ideals that guide her work make her at once the high priestess of post-punk punk and the arch-purveyor of heretical opinions: a curious creature, this purloiner of perfidy, as much given to parody (cf. Margaret Thatcher on Tatler) as to the quoting of philosophers ("Orthodoxy is the grave of intelligence").1 And as always, she does what she does with consummate verve - sublimating élan with wit, elegance, and a zest of humour.
It will therefore be rather nice to end with the words of Baudelaire - a writer doubtless congenial to someone with as fierce an independence of mind as the grand dame of fashion. Accordingly, in a passage reminiscent of the Westwood Weltanschauung -
The savage and the baby both bear witness, by their disingenuous love of brilliance, of motley plumage, iridescent stuffs and the superlative majesty of the creations of artifice, to their disdain of the real - thus unwittingly proving the absence of materialism in their souls. . . . Fashion should therefore be regarded as a symptom of that attachment to the ideal which is superimposed in the human brain upon all the coarse terrestrial and foul accumulations of natural life; it should be regarded as a sublime deformity of nature, or rather as a continual and ever-renewed attempt to renew nature.2
1 Bertrand Russell.
2 The Painter of Modern Life (and Other Essays).
(Thanks to en who, being of naturally sweet disposition, very kindly informed me of the exhibition!)
enthymeme ∙
9:03 PM
not a metaphysical deterministDeterminism - the doctrine that all events are predetermined and fixed in a world governed by natural laws - is given its most striking illustration by Laplace in his Essai Philosophique sur les Probabilités:
We ought to regard the present state of the universe as the effect of its antecedent state and as the cause of the state that is to follow. An intelligence knowing all the forces acting in nature at a given instant, as well as the momentary positions of all things in the universe, would be able to comprehend in one single formula the motions of the largest bodies as well as the lightest atoms in the world, provided that its intellect were sufficiently powerful to subject all data to analysis; to it nothing would be uncertain, the future as well as the past would be present to its eyes. The perfection that the human mind has been able to give to astronomy affords but a feeble outline of such an intelligence.
Thus the so-called 'Laplacean demon' - armed with Newton's laws of mechanics and the positions, masses and velocities of every elementary particle in the universe - is able to predict and have foreknowledge of every future state of the world, and the events contained therein.
Now suppose that determinism were true - suppose that the state of the world at a moment t0 follows of physical necessity from the state of the world at a previous moment t0 - 1. And that the state of the world at t0 - 1 follows of physical necessity from the state of the world at a previous moment t0 - 2, and so on and so forth. It follows that the state of the world as it is, now, is - as a matter of physical (and nomic) necessity - a consequence of the world as it was in the past. Events are thus fixed and predetermined as a matter of physical law. As such, no act of volition is undetermined - and no human action is created ab initio. In other words, no human agent is the original cause of his or her actions - and it is this that is by far the most formidable argument against the existence of free will: that is, that the creation ex nihilo of any such causal chain constitutes a violation of the law of conservation of energy.
For example, if you bend your finger for some reason or other - your decision to do so changes the mass and energy levels of all the particles involved. Where did the impetus for bending your finger come from? If it is undetermined, then the motion of your finger was initiated without any ostensible force or impulse being introduced into the system - which would be tantamount to introducing energy into the system without an external source - a clear violation of conservation laws.
If indeed, my actions are predetermined by - and originate in - a causal chain of past events that extend to even before I was born, then it would seem that human volition is ultimately illusory: for what we perceive as choice, choosing, or making a decision is really just the confluence of a number of (remote) causal factors impinging on the mind. And if human action is constrained by and prisoner to physical necessity, it would seem to give rise to a hopeless fatalism - the second, graver, consequence of a determinist metaphysics. One can argue that argument, and indeed, rationality itself, are empty contraptions. For since determinism implies that the suasive force of an argument is predetermined as a matter of causal fiat, all argument must be fruitless, or moot: it is not the rational merits of an argument that convinces, but brute causality. Thus, given that truth does not always have greater swaying power than falsity, all purported rational enterprise premised on just such an ersatz 'rationality' would be in danger of collapse.
Unpalatable as these conclusions may be for the rationalist, it seems to me that there is no way of meeting these arguments short of insisting on the fallibility of the scientific laws in question. Failing which, we take comfort in Hume's capitulation to a game of backgammon.
enthymeme ∙
8:11 PM
Saturday, February 07, 2004
sangria and the boatman's callI don't believe
in an interventionist God
but I know, darling, that you do
if I did, I would kneel down and ask Him
not to intervene when it came to you
not to touch a hair on your head
leave you as you are
and if He felt He had to direct you
direct you into my arms
Then
I don't believe in the existence of angels
but looking at you I wonder if that's true
but if I did I would summon them together
and ask them to watch over you
etc.
Then the last stanza:
but I believe in love
and I know, darling, that you do too
and I believe in some kind of path
that we can walk down, me and you
etc.
Then Alex, having one of her more philosophically lucid moments, asks
Are you a determinist?
enthymeme ∙
1:07 PM
Wednesday, February 04, 2004
for realIs he for real?
"New age neanderthal Judge Alex Kozinski has been whining about the possibility the Ninth Circuit's shameful memo dispos may become citable under a proposed amendment to the Federal Rules of Appellate Procedure! As far as I can tell, Kozinski's argument boils down to this: if memo dispos are citable, Ninth Circuit judges will actually have to read the stuff the staff clerks prepare in San Francisco. Horrors!"
"Once again, the blogospheric left makes me want to puke. Henry Farrell at Crooked Timber takes up Volokh the Younger's invitation to debase Marxist analysis by cramming it into the straightjacket of neoclassical rational choice theory . . . . With friends like Jon Elster, Marxism doesn't need enemies!"
"Randy Barnett, the crypto-anarchist, pseudo-libertarian, is on a book tour! Isn't that precious? And Glenn Reynolds is calling him the "Constitutional Law Equivalent of a Rock Star!" The commodification of the legal academy is reaching new heights!"
"Link courtesy of capitalist dupe Larry Lessig."
Haha. This guy is hardcore.
enthymeme ∙
10:17 PM
Tuesday, January 27, 2004
"anti-semitism scarcely exists in the west"But of course.
First, virulent anti-Semitism in France. Now this (via We The Undersigned):
A poll published in the Jewish Chronicle today found 47 per cent of people were unable to agree with the statement: "A British Jew would make an equally acceptable prime minister as a member of any other faith."
According to the ICM poll, 18 per cent of the 1,007 people surveyed disagreed. Of those, 11 per cent disagreed strongly. Another 28 per cent were either neutral or "don't knows". The survey also found that 15 per cent of people, or about one in seven, believed the scale of the Holocaust had been exaggerated. The poll found 20 per cent of people did not think that Jews made a positive contribution to political, social and cultural life, while 18 per cent believed that Jews had too much influence in Britain.
[. . .]
The Council for Racial Equality (CRE) warned that the findings were accompanied by an increase in anti-Semitic feelings.
A spokeswoman said: "Sadly, the response to this question comes as no surprise at all. We have seen a rise in anti-Semitic feeling of late. You can gauge it anecdotally from the range of complaints that come through to us at the CRE. And you can see its consequences in the desecration of synagogues and Jewish cemeteries. A person's race or faith should not be a barrier to political office."
Meanwhile, a
Now, as any fool knows, absence of evidence is not evidence of absence. So what purpose this "anecdotal evidence" is meant to serve is a complete mystery to me. No purpose, apparently - but mere hand-waving.
Said individual then asks, without a hint of irony, if the blogosphere has any hope. Well, apparently not, seeing that every once in a while I have to give inept philosophers-cum-blogopaths object lessons in elementary logic.
Update: Ha'aretz reports that European law-makers warn today against a rising tide of anti-Semitism. Strange, but why do they bother? After all, ideologues here and afield think it "scarcely exists", and is, by implication, a non-problem.
BRUSSELS, Belgium - European legislators marked the 59th anniversary of the liberation of Auschwitz on Tuesday with a warning against modern-day anti-Semitism.
"Anti-Semitism is not limited to the past," said Peter Schieder, an Austrian lawmaker who presides at the Council of Europe's Parliamentary Assembly in Strasbourg, France.
Addressing the assembly, Schieder recalled recent events in the eastern French city where stones were thrown at a synagogue's glass doors and a bus used to take children to a Jewish school was set alight.
[. . .]
A report on Belgium issued Tuesday by the Council's anti-racism watchdog highlighted an increase in anti-Jewish and anti-Islamic incidents since the September 11, 2001, attacks on the United States and the resurgence of Middle Eastern violence.
"Such manifestations have included verbal abuse and harassment of individuals but also public oral and written expressions, such as anti-Semitic slogans uttered during demonstrations, anti-Semitic graffiti sprayed on Jewish-owned shops and publication and dissemination of printed material targeting Muslims and persons of Arab origin or members of the Jewish community," the report said.
Indeed, according to an elite philosophaster of the front rank (or would-be philosopher-king, since he apparently thinks of himself as the shining beacon of truth in a benighted blogosphere), it scarcely exists. Nevermind this, this, or that. After all, clever philosophers deal in abstractions for the most part, so why should the facts matter?
enthymeme ∙
2:28 PM
the hypocrisy of the leftNow, as I've mentioned before, although I have libertarian inclinations, I am not a close follower of day-to-day politics and view myself as 'outside the spectrum' as it were. Be that as it may, there are some very striking things about the left that annoy me no end - for instance, that the left constantly counts among its ranks apologists for tyranny, anti-Semitism, and assorted idiocies (see the recent series of posts on The Volokh Conspiracy regarding liberals and the USSR; recall also, Noam Chomsky's comments on anti-Semitism and the subsequent slew of similarly effete, hare-brained attempts at justifying his remarks). It also has hypocrites of the worst kind - purveyors of a hypocrisy which is doubly exacerbated by the self-righteous tone of said purveyors.
During the debate on anti-Semitism, I refrained from pointing out this hypocrisy too overtly because I didn't want to politicize the debate (given that I could skewer Chomskyite apologists on purely logical grounds). The two (hypocrisy and logical inconsistency) are (for obvious reasons) linked. Take Leiter's assessment of Mr Drake's defence of Chomsky (Leiter, in typical self-serving fashion, called it "sober analysis" - so presumably, he agrees with it). Essentially, Mr Drake and Leiter concurred that what Chomsky was really saying is that institutionalized anti-Semitism scarcely exists in the West, and that Chomsky therefore was to be excused on their rather more charitable reading of his comments. After all, if it is uncontroversial that institutionalized anti-Semitism scarcely exists, then Chomsky's comments (taken to be referring to institutionalized anti-Semitism) should hardly be controversial as well.
But even this contrived defence of Chomsky ultimately self-implodes. Leaving aside the fact that there is nothing in Chomsky's comments that supports their attempts at foisting context on it (by the way, has it occurred to anyone that if we want to impute all kinds of self-immunizing "contexts" to Chomsky's statements - contexts that are not suggested by anything in said statements - then we might as well not be talking about Chomsky's comments but something else entirely?), we find that, even if we were to grant this reading, Drake and Leiter still manage to mire themselves in contradiction. How so?
Drake, as we recall, conceded that the statement "anti-Black racism scarcely exists now, in the West" is false. I put to him his (self-quoted) statistics on hate-crime in the U.S., which indicate the incidence of anti-Semitic hate crimes to be more than double that of hate crimes stemming from anti-Black animus. I then asked him, on the plain, unadorned reading of Chomsky's comments and on account of those statistics why, if "anti-Black racism scarcely exists now" is false (as he readily admits) - why aren't Chomsky's comments on anti-Semitism likewise false - and for that matter, all the more so?
Having thereby obliterated Drake's position, I did not return to the hopeless Leiterian alternative "reading" of Chomsky's comments - until last night, when I was watching Todd Haynes' gripping melodrama Far from Heaven (which touched tangentially on race issues in a 1950s America on the cusp of the civil rights movement) and it occurred to me about a third through the movie that even if we were to concede to this alternative reading of Chomsky's remarks - on which their entire case hinges - they would still be guilty of - if not outright self-contradiction - then at least flagrant inconsistency, and consequently, hypocrisy. So let us suppose their reading of Chomsky's remarks. Let's accept, in arguendo, their main premise - let's accept their case at its strongest.
What then? Institutionalized anti-Black racism scarcely exists today, as even Mr Drake will admit. Yet he finds the statement "in the West, anti-Black racism scarcely exists now" manifestly false. But hey, wasn't his argument with regard to Jews: "institutionalized anti-Semitism scarcely exists today, ergo anti-Semitism scarcely exists"? Clearly then, Drake's position on anti-Black racism is inconsistent with his position on anti-Semitism. Therefore, his argument collapses under an inconsistency, as does Leiter's (unless Leiter is willing to declare that "anti-Black racism scarcely exists"?). This unprincipled flapping about will not do. So which is it?
Not that I expect them to extricate their feet from their mouths anytime soon, but this, I'd like to point out, is a fine example of the self-serving double standards that so often typifies the left's arguments. Consistency is a virtue. It means having to bite the bullet and having the courage to change one's views in the light of damning criticism - and the corollary of this is the adoption of a critical fallibilism with regards to one's political views. Too often, the problem with the left is that it is unwilling to do so. And all too many, like the hopeless Brian Leiter, suppose that to have the courage of one's political convictions means never having to admit they're wrong. And then there is the employment of double standards when it's convenient, and what's worst - that such tactics are (at least in my experience) routinely employed with self-righteous aplomb. This, needless to say, is weak. Because intellectual honesty and integrity are values that so-called intellectuals, of all people, should hold in utmost regard. Indeed, I think these are essential tenets. Self-identified leftards like Leiter and Mr Drake only reinforce the impression that hypocrisy is endemic within its ranks, and that everytime I cross verbal swords with the left, I can come to expect three things: apologetics, hysterical denunciations of the right coupled with unprincipled employment of double standards, and an unwillingness to admit that their beliefs might be wrong.
Is it any wonder that this non-fallibilist attitude - indeed, this dogmatic, ideological arrogance that characterizes so many left-type screeds - waltzes hand in hand with totalitarianism? Karl Popper's fallibilist philosophy of science was a pre-cursor to his ardent defence of democracy: his core insight was that totalitarianism and its evils were inimical to a rational fallibilism, and thusly, inimical to criticism and scientific inquiry, which presupposes just such an open-ness to criticism.
Attitudes speak volumes, for the apologist is an apologist precisely because he is not open to the possibility that his theoretical framework might be wrong - even in the face of counter-evidence and/or a devastating immanent critique of his views. That the practice of apologetics is (as far as I know) a phenomenon far more common to the left than to the right is, I suggest, a damning indictment of the former, and an indication of the lowly depths to which left-leaning intellectuals have sunk. Evidence, as a certain hypocrite would say, of a debauched "moral depravity".
Shame.
enthymeme ∙
1:47 PM
Thursday, January 22, 2004
Soon now, we'll mark the year's end that approaches,
It's like a snake that crawls into a hole:
Already half its scaly length is hidden
What man can stop us losing the last trace?
Even if we want to tie its tail
No matter how we try, we can't; it's futile.
The children make all effort not to sleep,
While we guard the night with good cheer.
The cockerels should not cry the dawn for now
And the drums as well should give the hour respect.
We sat so long the lamp's burnt down to ash,
I rise, and see the plough is slanting north.
Next year, perhaps, my span of years could end,
My fear is that I've just been marking time.
So exert ourselves to the utmost here tonight,
And admire the exuberance of our youth!
Su Dongpo (1037-1101), New Year's Watch.
enthymeme ∙
11:28 AM
Sunday, January 11, 2004
from the horse's mouthWhile we're on the topic of falsifiability in principle and value, we might as well hear from the arch-falsificationist himself:
Concerning my contention that it is impossible to derive a sentence stating a norm or decision from a sentence stating a fact, the following may be added. In analysing the relations between sentences and facts, we are moving into that field of knowledge which A. Tarski called semantics. . . . One of the fundamental concepts of semantics is the concept of truth. As shown by Tarski, it is possible (within what Carnap calls a semantical system) to derive a descriptive statement like 'Napoleon died on St. Helena' from the statement 'Mr. A said that Napoleon died on St. Helena', in conjunction with the statement that what Mr. A said was true.
[. . .]
Now there is no reason why we should not proceed analogously in the realm of norms. We might then introduce, in correspondence to the concept of truth, the concept of validity or rightness of a norm. This would mean that a certain norm N could be derived (in a kind of semantic of norms) from a sentence stating that N is valid or right; or in other words, the norm or commandment 'Thou shalt not steal' would be considered as equivalent to the assertion 'The norm "Thou shalt not steal" is valid or right.' (And again, if we use the term 'fact' in such a wide sense that we speak about the fact that a norm is valid or right, then we could derive norms from facts. This, however, does not impair the correctness of our considerations in the text, which are concerned solely with the impossibility of deriving norms from psychological or sociological or similar, i.e. non-semantic facts.)
(K. R. Popper, The Open Society and Its Enemies, note 5 (2), p. 234.)
Which is why any such attempt (e.g. Professor Huigens') invariably begs the question.
Update: Professor Huigens responds to my criticism in his comments section. It seems that we are in agreement for the most part, except for the part about moral futurism which I did not include in my email to him. Off the top of my head, I should say that Popper and Huigens are using 'falsifiability' in slightly different senses. For Popper, values are not falsifiable because they are not intended to describe some aspect of reality. They may prove useful or useless, and in that sense are akin to the status of methodological proposals in science - but they cannot be falsified.
Moreover, it appears that Professor Huigens does regard moral evaluations as a description of some aspect of reality - and as such, differs from Popper over the ontological status of moral evaluations. This raises a new problem, though. Huigens' position founders on the very difficulties anticipated by Popper in the note above - and begs the question. If we assume that '"norm N is right" is true', then any falsification of that statement presupposes a positivistic account of morality - that what is right is right for its time. The problem with moral positivism was of course, dealt with in my first post on this matter. Basically, I contended that in the context of public debate, if we were to take to Professor Huigens' demarcation criterion, then we would be presupposing a positivistic account of morality which is antithetical to the very values public debate is supposed to serve in the first place.
Update: No more.
enthymeme ∙
12:29 PM
Sunday, January 04, 2004
falsifiability and moral evaluationsIn response to Larry Solum, Professor Kyron Huigens over at Punishment Theory writes:
. . . there's no ontological or epistemological divide that claims about value are on the wrong side of, in a way that would preclude their being falsifiable in principle. It's easy to see this falsifiability if one takes the view that the valuable is such because it's valued; i.e. that evaluation is constitutive of value. Suppose I say that human dignity requires the insanity defense. If my political community abolishes the insanity defense, then the dignity of the individual is not valued, nor is it valuable, in the way that the defense is meant to serve. The statement that human dignity requires the insanity defense has been falsified.
In other words, this hypothetical supposes that: my political community values the dignity of the individual - dignity of the type which requires the insanity defence. The abolishment of the insanity defence would falsify the supposition that "my political community values the dignity of the individual - dignity of the type which requires the insanity defence". According to Professor Huigens, values such as these may therefore be regarded as "falsifiable in principle" and - by dint of being falsifiable in principle - admissible as a valid public reason into the sphere of public debate on policy and law. As it were, falsifiability may be regarded as a criterion of demarcation between faith-based reasons (that are unfalsifiable in principle) and empirically grounded reasons (e.g., moral reasons that are falsifiable in principle).
Recall that Professor Solum's question was:
How would this criteria apply to the values that are conventionally used as premises in public political debate? For example, what empirical evidence could, in principle, disprove the proposition that human dignity is a very great value or that the innocent persons should not be injured or killed absent the most extraordinary justifications?
To my mind, Huigen's response is just a recipe for moral futurism. It does not propose what ought to be done prior to the falsification of said proposition. Which is the point isn't it? It hardly makes sense to say that the falsification (abolishment of the insanity defence) is a reason for the abolishment of the insanity defence. It is a falsification which has no bearing on public debate since it is ex post facto.
That aside, how does Huigen's response answer Professor Solum's question? Huigen's hypothetical - the abolishment of the insanity defence - does not falsify the proposition that "human dignity is a very great value". Even if we accept that the statement "human dignity requires the insanity defence" is falsified, it does not follow that human dignity is not a very great value. What follows is that (i) human dignity does not require the insanity defence (it may still be a great value sans insanity defence) and (ii) my political community does not value human dignity as served by the insanity defence. If we infer from (ii) that, consequently, human dignity (in the sense served by the insanity defence) is not valued and thus not a "very great value" in that sense, then we're simply back to the ex post facto problem. In other words, we'd be begging the question.
Moral futurism - the view that the only relevant moral standards are those that are right for its time - is not a view that I subscribe to. It leads, I think, to the view that might is right - since whatever is the status quo in the future will be right for its time. This, if anything, has a pernicious and damaging effect on public debate on policy and the law. It is, following Popper, merely another species of moral positivism. For if we regard the morality of the present as self-justifying ('if it is so, it must be right'), then the tendency to ossify morality by way of tyranny - establishing by any means possible current morality for all time - coupled with an uncritical moral fatalism ('if what is so is right, why fight it?') - would stifle debate and criticism as to be inimical to the very purposes of public deliberation of policy. Which was the point in the first place.
enthymeme ∙
8:27 AM
back to the pre-socraticsWolfgang Schwarz writes in response to Mr Quigle:
In my last post, I said that I do not believe that every extended thing must have parts. Sam disgrees, arguing that whenever something is extended over length h, we can restrict our attention to a part of it with length h/n for any n < h.
[. . .]
. . . couldn't there be a quantized world where every thing's extension is a multiple of some positive length h? That doesn't sound contradictory to me. But if every thing's extension is a multiple of h then also every part's extension is a multiple of h. So there are no parts smaller than h. In such a world, there are no rulers with marks for h/2 on them, nor can we restrict our attention to parts of length h/2 because there are no such parts.
Indeed, there could be such a quantized world - namely, our world. And that quantum of length would be the Planck length. Consider this review of the small-scale structure of space-time:
. . . the discovery of quantum theory with its discrete energy levels and the Heisenberg uncertainty principle led physicists to speculate that space-time itself may be discrete as early as the 1930s. In 1936 Einstein expressed the general feeling that ". . . perhaps the success of the Heisenberg method points to a purely algebraic method of description of nature, that is, to the elimination of continuous functions from physics. Then, however, we must give up, by principle, the space-time continuum . . .". Heisenberg himself noted that physics must have a fundamental length scale which together with Planck's constant and the speed of light permitted the derivation of particle masses. Others also argued that it would represent a limit on the measurement of space-time distance. At the time it was thought that this length scale would be around 10-15 m corresponding to the masses of the heaviest particles known at that time but searches for non-local effects in high energy particle collisions have given negative results for scales down to about 10-19 m and today the consensus is that it must correspond to the much smaller Planck length at 10-35 m.
(Internal citations omitted.)
Also see here for arguments in quantum gravity pertaining to minimum lengths. Since the smallest possible wave-length of light - or anything else for that matter - cannot be smaller than the Planck length, then nothing smaller than that length may be probed. In other words, "marks for h/2" are physically impossible, and it is physically impossible to "restrict our attention" to distances shorter than Planck length. At least according to String Theory, sub-Planck length scale objects are physically impossible and in any case unprobeable, and there are no point particles.
However, this would seem to give rise to other paradoxes (though not necessarily - a minimum length for objects does not necessarily imply a discrete space-time, on which these paradoxes hinge). For instance, any object which traverses one Planck length to the next would appear to be doing some sort of 'discrete jumping' - the object traverses one Planck length, and is magically in the next - as there is no continuum if space-time is discrete. Motion would be an illusion - impossible in the sense of Zeno's arrow paradox (that is, quantum jumping - from one length to the next - like a reel of film stills, gives us the appearance of freeze frame 'motion' - but not 'motion' in Zeno's sense). Quite apart from that, there is the problem of the conservation of momentum in a series of 'static' instances: at each instant, where is the momentum of the object? If the object has momentum, then it is impossible that the object is not moving at any one instant. If at any one instant (and over a series of instances) there is no momentum, then it is impossible for the object to move over that series unless it somehow recovers its momentum.
As far as I can tell, most solutions to the problem of parts and discreteness only shift the problem elsewhere - sometimes back from whence it came - to Zeno's paradoxes.
enthymeme ∙
7:57 AM
Thursday, January 01, 2004
new year's resolutionDon't make promises you can't keep. Save everyone all the trouble. It'd be much easier.
enthymeme ∙
8:59 PM
Wednesday, December 24, 2003
heaven can wait
enthymeme ∙
12:17 PM
Saturday, December 20, 2003
sauron: offer and acceptanceQiken lover Heidi Bond ponders the nuances of modern contract law.
Via The Volokh Conspiracy.
enthymeme ∙
11:56 PM
Thursday, December 18, 2003
not so fastDeposed arch-tyrant Saddam Hussein's capture has predictably led to bleating noises from the anti-war left and sneering from the pro-war right to suggestions that his arrest might have been staged. A Small Victory, amongst others of the war-inclined, is quick to consign the suggestion to the conspiracy theory loony bin.
I think that this is premature, and that both reactions are rather off the mark in any case.
To those who bleat, it may be asked, 'so what if it was staged?' And the same may be (rather more pointedly) asked of those who rubbish scepticism pertaining to the official account of events. I suggest - in this instance at least - that we may discount the released account of events, and countenance the possibility that the capture was staged. Why? Because first, it accords with what appears to be standard procedure, and second, it makes good sense according to the situational logic of any such capture.
Recently, the Curmudgeonly Clerk linked to this article (well worth reading in full, I assure you) on intelligence handling and interrogation SOP. It recounts the capture of al-Qaeda operations chief Khalid Sheikh Mohammed back in March:
Some say that Sheikh Mohammed was captured months before the March 1 date announced by Pakistan's Inter-Services Intelligence (ISI). Abdul Qadoos, a pale, white-bearded alderman in this well-heeled neighborhood, told me that Sheikh Mohammed was not there "then or ever." The official video of the takedown appears to have been faked. But the details are of minor importance. Whenever, wherever, and however it happened, nearly everyone now agrees that Sheikh Mohammed is in U.S. custody, and has been for some time. In the first hours of his captivity the hood came off and a picture was taken. It shows a bleary-eyed, heavy, hairy, swarthy man with a full black moustache, thick eyebrows, a dark outline of beard on a rounded, shaved face, three chins, long sideburns, and a full head of dense, long, wildly mussed black hair. He stands before a pale tan wall whose paint is chipped, leaning slightly forward, like a man with his hands bound behind him, the low cut of his loose-fitting white T-shirt exposing matted curls of hair on his chest, shoulders, and back. He is looking down and to the right of the camera. He appears dazed and glum.
Also consider the following on the handling of high-level quarry in custody, and the rationale behind not revealing one's hand:
It is likely that some captured terrorists' names and arrests have not yet been revealed; people may be held for months before their "arrests" are staged. Once a top-level suspect is publicly known to be in custody, his intelligence value falls. His organization scatters, altering its plans, disguises, cover stories, codes, tactics, and communication methods. The maximum opportunity for intelligence gathering comes in the first hours after an arrest, before others in a group can possibly know that their walls have been breached. Keeping an arrest quiet for days or weeks prolongs this opportunity. If March 1 was in fact the day of Sheikh Mohammed's capture, then the cameras and the headlines were an important intelligence failure. The arrest of the senior al-Qaeda figure Abu Anas Liby, in Sudan in February of 2002, was not made public until a month later, when U.S. efforts to have him transferred to custody in Egypt were leaked to the Sunday Times of London.
Now if this were quite plausibly true - as it apparently is - and if lesser targets than Saddam have had their arrests stage-managed and the interim between real capture and staged arrest milked for what it's worth, why should Saddam be an exception? Given the pressing need to uproot remnant Saddam loyalists and Ba'athist elements that daily plague U.S. forces in Iraq, it would seem imprudent not to apply some form of deception in this instance.
Accordingly, consternation or even outrage at the possibility that Saddam's capture might have been staged is misguided, to say the least - as are knee-jerk denials of such a possibility. Of course, whether the staged capture was deliberately sprung at a politically (as opposed to militarily) opportune time is another matter altogether.
As to whether there is even more to Saddam's capture than meets the eye, it appears that the notoriously prescient DEBKAfile has alternative and considered analysis of the matter.
Update: And the aftermath.
enthymeme ∙
9:29 PM
Wednesday, December 17, 2003
something for everyoneWagnerians too:
. . . In the "Ring," special importance attaches to the pairing of two minor triads separated by four half-steps - say, E minor and C minor. Conventional musical grammar says that these chords should keep their distance, but they make an eerie couple, having one note (G) in common. Wagner uses them to represent, among other things, the Tarnhelm, the ring's companion device, which allows its user to assume any form. Tolkien's ring, likewise, makes its bearer disappear, and Shore leans on those same spooky chords to suggest the shape-shifting process.
Alex Ross on the application of genius.
enthymeme ∙
7:02 PM
Tuesday, December 16, 2003
trash, the end
enthymeme ∙
10:30 AM
Saturday, December 13, 2003
know when to let goBut obviously Brian Leiter doesn't - just scroll down near the bottom, he pops up wanting the last word like some sort of sand-filled punching bag.
enthymeme ∙
1:13 AM
Tuesday, December 09, 2003
vapidity from leiterProfessor Brian Leiter expresses annoyance in a laughable rejoinder to the Chomsky debate.
A few points to note about the whole debacle. I should confess that I wandered into the Chun debate unaware that quite a bit has already been written about Chomsky's remarks. I was primarily concerned with the poor logic of Chun's defence of Chomsky rather than his politics (although certainly we have our differences). If anything, I'd consider myself a relatively disinterested observer of the left-right spectrum warfare of American (or Western) politics. Leiter supposes me a right-winger and a Chomsky-hater when really, these cheap smears hold little to no purchase with me. The fact of the matter is that I could hardly be bothered with Chomsky on matters political (although I recognize his brilliance in the philosophy of language and linguistics), and am indifferent to the minutiae of American politics. For all his insufferable whining about "right-wing" this and "hate" that, Professor Leiter scores just about oh, zero hits. To allege that I have some partisan interest in the Chomsky fracas over and above (i) that of showing the factual absurdity of Chomsky's remarks and (ii) a concern with the poor logic of his defenders, is just stupid.
If Leiter reckons that Chomsky's remarks are "utterly banal", perhaps he should - on pain of inconsistency - assert the same of racism against other racial groups. Elsewise, he's just repeating in somewhat more spectacular fashion the same hypocritical idiocy that was at issue in the first place. Afterwards, he might, if he has anything substantive to add, try to refute the reductio applied to Chun's arguments - a reductio that happens to apply to Professor Leiter's screed - since the good Professor is essentially rehashing the same-old from Chun. Which brings me to the question - why this mindless repetition of half-baked rejoinders which I have already dealt with in the Chun debate? Perhaps elementary logic is lost on Professor Leiter, for he also seems to think that repeating defeated arguments with a fresh coat of ad hominem actually gets him anywhere. What a no-brainer. When someone impugns your motives and has elaborate fantasies as to your political inclination - as if that matters when considering the merits of a debate - it's just indicative that he hasn't a clue. What else is new?
Leiter then points to Chomsky's considerable intellectual accomplishments in linguistics and the philosophy of language as if that renders any criticism of his remarks inert. Golly gee, behold the canonization of St Noam - oh beatific virtue! - everything he says is gospel and is 'likely' to be right on account of his work in a separate field of study. Who is Leiter trying to kid? I'd be impressed if such an invocation of authority wasn't an elementary fallacy of logic. Alas, it is. And frankly, it's embarrassing for a professor of philosophy to so wantonly issue non sequiturs of this sort. But I suppose, like Chomsky, Professor Leiter thinks his pedigree allows him to get away with imbecilic pronouncements?
In any case, it goes without saying that great minds can make great mistakes. Bertrand Russell is arguably the greatest philosopher of the 20th century - yet he espoused some decidedly dodgy views - for instance, the advocacy of a pre-emptive nuclear strike on the Soviet Union. What more Noam Chomsky, who is half the giant Russell was? Western intellectual history is replete with examples of great minds who have held profoundly mistaken views (political or otherwise). Sartre and communism. Heidegger and Nazism. Hegel's anti-Semitism. Schopenhauer's overt sexism. Since Leiter seems to think philosophy is a higher order discipline than almost every other, perhaps he should use his elite philosophical training to better effect.
On top of failing to address the merits of the arguments put forth in the Chun debate, Professor Leiter fails even to make the lesser case that someone of Chomsky's intellectual calibre is 'likely' to be right. Talk about lightweight. Compound these with the rather specious attempt at smuggling in an argument from authority and we have vintage.
Really, one wonders how Leiter's response is anything more than a bit of flatulence.
Update: Much overdue thanks to Pejman Yousefzadeh, J.P. Carter, and Nick Morgan of En Banc for their links. Pejman Yousefzadeh proves once again in an exhaustive survey why Brian Leiter is all of two inches tall. Michael Rappaport says it as it is in this thoughtful post to which Professor Leiter has appended a reply here. Elsewhere, Natalie Solent has Chomsky nailed on a separate charge, while Damian Penny and his colourful comments section make hay over the same issue. Late to the fray, Henry Farrell over at Crooked Timber takes umbrage and an axe to the rest of Leiter's asinine remarks.
Anyway, a few days ago I mentioned to a friend - half in jest - that Chomsky is evidently the Michael Moore of academia. Not to put too fine a point on it, but I can understand why half the Blogosphere also imagines him to be wearing a tall, pointy hat.
enthymeme ∙
10:29 AM
Monday, December 08, 2003
more chomskyWhile over at Chun's, I was unaware that Chomsky's remarks have actually generated some gnashing of teeth and a good deal of blogospheric heat. Props to Pejman Yousefzadeh for linking me in this post, in which Professor Chomsky is shown the errors of his ways:
The extent to which Chomskyites go to try to prove that two plus two equals lettuce is truly a wonder to behold.
Also see here for a brutal Pejmanesque take-down of the good Professor.
enthymeme ∙
2:50 PM
spoiling for a fightUnavoidably, I take the bludgeon to Chun. Over a breath-taking Norman Geras post no less.
enthymeme ∙
8:33 AM
Saturday, December 06, 2003
trimalchioFor with my own eyes I saw
the Sibyl hanging in a cage at Cumae,
And when the boys said to her,
"Sibyl, what do you want?"
She replied,
"I want to die."
enthymeme ∙
1:29 AM
Wednesday, December 03, 2003
british higher educationChief Crescateer Will Baude links to an excellent article by Richard Epstein on the decrepit state of English universities. Professor Epstein provides a none-too-flattering contrast of English universities to their illustrious American counterparts, observing that the intellectual blandness endemic to the British system is largely due to the pernicious effects of centralized planning and the overly-narrow standardization of curricula.
The former, according to Epstein, accounts for the brain-drain of nascent talent to the States (where academic salaries are comparatively higher - salaries that British universities cannot match due to lack of funding, itself the result of an artificial suppression of tuition fees by the central powers-that-be); and the latter is responsible for the creeping intellectual-death that is sterile orthodoxy, or so the argument goes:
Suppose in the 1960s an able young academic had the intriguing but untested idea to use economic tools to gain insight into tort law. An English Guido Calabresi would have had no student laboratory to test his ideas. Diligent students would be intent on taking required examinations set by the established members of the faculty and would have little interest in mastering the inchoate ideas of one off-beat professor. The standardization of the examination system necessarily leads to a standardization of instruction, and hence a standardization of thought.
And thus the resultant lack of intellectual diversity and dearth of innovation:
The teachers who cannot test out their own ideas on their own students can never develop them with the richness that they deserve. Ideas die stillborn: Law and economics reached England a generation later than it did here and it still has only a small toehold in undergraduate legal education.
Small toehold indeed. Mr Baude himself makes the comparison between Chicago and Cambridge (where he's doing his final undergraduate year on exchange from Chicago). He notes that while it is unsurprising that students are - being the adaptive creatures they are - syllabus-oriented and not much enamoured of topics extraneous to requirements, it is a matter of concern when faculty evinces blasé disinterest in the same way. On anecdotal evidence, this attitude appears to be less uncommon than one supposes: I for my part can corroborate Mr Baude's experience. I was once at a Contracts lecture during which the lecturer (we call him Professor Editor-of-Blackstone's-Statutes - go figure) repeatedly turned down questions from the floor with a cursory "you don't have to know that".
Not to be alarmist, but some quarters are sounding the death knell:
Universities have seldom been more miserable. They are short of money. Government micro-management is intrusive and contradictory. And competition forces them to do things they dislike.
The financial position is certainly bleak. Around half of English universities will fail to break even in the coming year, up from a third this year, while a quarter admit to being in financial trouble; the real number may be higher.
This was six months ago. The same sentiments are echoed in this week's issue of The Economist:
Britain's universities are increasingly overcrowded, shabby and demoralised places, living on the financial and intellectual investments of the past. Academic salaries are low, teaching scanty. That is because British universities are very short of money. Student numbers have risen sharply, without a matching increase in funding from either government or the private sector. Britain spends just 1% of GDP on tertiary education (most of it state subsidy) compared with 2.7% in America (most of it private money).
[. . .]
[If the government's fee top-up scheme] is defeated, universities face a choice between continued decline on the one hand and cutting undergraduate teaching and boosting the intake of lucrative overseas students and post-graduates on the other.
Not savoury. But at least the Russell Group of universities are not sitting idly by while the situation goes terminal, perhaps goaded on by a dim awareness of the superior merits of the American system:
[Defeat of the fee top-up scheme] would encourage an idea which is gaining momentum among the better universities - that they should break free from government control altogether. They could then charge much higher fees, deliver first-rate teaching, and run their affairs without constant interference. It would be messy, but better than slow starvation.
Is there reason to be sanguine? Possibly. But the rot is unlikely to reverse itself in the foreseeable future given the painfully slow pace of reform. Yet reform it must. "The stakes," according to Epstein, "extend beyond the university, for the strength of an academic system is reflected in the performance of its graduates. The lockstep progression of the English system narrows the range of skills that their graduates bring into their professional lives. In contrast, the rise of American law firms can be traced to the unruly richness and diversity of American legal education. Hence this somber truth: English legal education will not regain academic pre-eminence until it abandons the real advantages of the set curriculum for the dynamic chaos and occasional incompetence of the American model."
enthymeme ∙
12:38 PM
Monday, December 01, 2003
tempest of tea leavesBack to the question of sub judice contempt.
Liability for contempt, based on the 'strict liability' rule, is legislated for under the Contempt of Court Act 1981. 'Strict liability' is defined thus:
In this Act "the strict liability rule" means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so (s 1).
This rule applies to "speech . . . or other communication in whatever form, which is addressed to the public at large or any section of the public . . . which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced" (s 2, emphasis mine). For the purposes of this Act, proceedings must be 'active' for the strict liability rule to apply. Criminal proceedings become active for purposes of contempt when an individual is either arrested or when an arrest warrant is issued (Sch 1 Para 4). In the instant case, it appears that Mr Blunkett's comments qualify as 'speech concerned with active criminal proceedings addressed to the public at large'. Whether or not he is in breach of the laws of contempt of court would therefore hinge on whether these remarks are likely to seriously impede or prejudice the administration of justice.
In contrast to American courts, which take a more benign view of media reportage, English courts are almost puritanical when it comes to ensuring that the defendant is ensured as fair a trial as possible - e.g. by avoiding, where possible, pre-trial publicity that might be deemed to jeopardize the process. This approach is explained by Lord Diplock in Attorney General v English [1983] 1 AC 116:
The public policy that underlies the strict liability rule in contempt of court is deterrence. Trial by newspaper or, as it should be more compendiously expressed today, trial by the media, is not to be permitted in this country. That the risk that was created by the publication when it was actually published does not ultimately affect the outcome of the proceedings is, as Lord Goddard CJ said in Evening Standard Co. Ltd [1954] 1 QB 578, 582, "neither here nor there" . . . . The true course of justice must not at any stage be put at risk.
Accordingly, English courts can be said to be fairly averse to media coverage that American courts are seemingly willing to tolerate. That the Home Secretary - of all people - is responsible for imprudent and potentially prejudicial remarks made to the media is startling, to say the least.
Indeed, there is a huge swathe of English case law concerned with the influence that pre-trial publicity might have on a jury. At issue in many of these cases is the balance between a defendant's right to a fair trial, and the public interest - namely, the freedom of expression accorded to private individuals and the press. On the face of the law, the limits to press freedom and unfettered expression are necessary evils that lessen the "substantial risks" of there being impediments to a fair trial. A core consideration of the law in determining the degree to which such risks exist is the proximity of the publication of the offending words (taken to include inter alia any form of speech or communication to the public) to the trial date.
For example, in Attorney-General v Independent Television News Ltd and Others [1995] 1 Cr App R 204 QBD, in which the AG's charge of contempt was dismissed:
. . . the question for the Court was whether there was a substantial or more than minimal risk of proceedings being seriously prejudiced, judged at the time of publication.
Leggatt J elaborates in Attorney-General v News Group Newspapers Ltd [1987] QB 1 CA:
There has to be a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced. This is a double test. First, there has to be some risk that the proceedings in question will be affected at all. Second, there has to be a prospect that, if affected, the effect will be serious. The two limbs of the test can overlap, but they can be quite separate.
[. . .]
Proximity in time between the publication and the proceedings would probably have a greater bearing on the risk limb than on the seriousness limb, but could go to both.
If the proceedings to be protected are "active" within the meaning of the Act and both limbs of the test in section 2(2) are met, not only will the strict liability rule apply, but I find it hard to think of any circumstances in which the conduct complained of would not, prior to 1981, have been held to be a contempt.
On this account, it seems that Mr Blunkett's remarks, which cut right to the issue at question - namely whether the terror suspect is indeed a "threat", linked to known terrorist groups and by implication guilty of conspiracy to commit mass murder or sundry terrorist acts - would appear to be gravely prejudicial to the accused. This is all the more aggravated by the fact that Mr Blunkett is speaking in his official capacity as Home Secretary.
However, it appears that Mr Blunkett is not at sea yet. For one thing, there is no general agreement as to how proximate the the offending words have to be to a trial before they are considered to have created a substantial risk of serious prejudice with regards to the proceedings. In other words, there is no criterion that determines the degree of risk (substantial or not) on the basis of remoteness or proximity. As Auld LJ points out in Attorney-General v British Broadcasting Corporation [1997] EMLR 76 QBD:
Both the risk and the degree of prejudice will . . . increase with the proximity of the trial but it is not possible, and indeed would be contrary to the Act, to say that no publication earlier than a certain number of months before trial could be subject to the application of the strict liability rule. Each case must be decided on its own facts and a publication relatively close to the trial may escape whereas another much further from trial will not do so by reason of the impact of its content on the reader, listener or viewer, as the case may be.
This seems to afford Mr Blunkett a measure of defence vis-a-vis his remarks should the Attorney General's inquiry amount to anything serious.
Be that as it may, the Divisional Courts judgement in Attorney-General v Associated Newspapers Limited and Another [1998] EMLR 711 QBD - a case concerning the escape of convicted IRA members - sheds light on the instant case by raising the following considerations:
(i) that the accused were more likely to have committed the crimes charged because they were IRA terrorists (as opposed, for example, to armed robbers or drug barons); or (ii) that the jury was less likely to accord them a fair trial because of an animus towards the IRA and terrorism.
Deciding that there was indeed, a substantial risk of either, and that contempt had been proved, the Court concludes:
Plainly, as it seems to us, the publication of the article, occurring when it did, was likely to have loaded the scales in favour of the prosecution in a way which no judicial warning could redress. There being no longer any room for doubt as to membership of the IRA so far as three of the defendants were concerned the jury, however anxious they may have been to keep an open mind, might well have found it easier to accept involvement of the defendants in a sophisticated escape, and easier to reject the evidence of three men who they now knew to have been convicted of particularly nasty terrorist crimes.
It seems to me that this is not so different from the present situation that Mr Blunkett finds himself in. The only conceivable defence is an appeal to the fact that the trial date is likely to be far removed from the present and remote enough such that the risk of serious prejudice in the proceedings is diminished. Given that the public imagination is daily captured and rekindled by the threat of terrorism, the trial date would have to be very far off indeed to be amenable to such a defence.
enthymeme ∙
11:58 AM
Sunday, November 30, 2003
storm in a teacupThe Guardian reports that David Blunkett - the British Home Secretary - may be facing a contempt-of-court inquiry by the Attorney General's office for his comments on the arrest of an alleged terror suspect. The Attorney General is understood to be mulling an investigation into Mr Blunkett's remarks after they were deemed potentially prejudicial by several senior barristers - among them the chairman of the Bar Council.
According to the report:
Lord Goldsmith's office promised the politically embarrassing inquiry into possible contempt of court - by one cabinet minister of another - after the attorney general by coincidence delivered a critique of reporting practices that undermine the laws of contempt of court.
[. . .]
David Blunkett had said: "This individual posed a very real threat to the life and liberty of our country . . . . This person has connections with the network of al-Qaida groups."
Is Mr Blunkett's adverse pre-trial publicity gaffe tantamount to sub judice contempt? And are his comments likely to be prejudicial to a fair trial?
enthymeme ∙
12:55 PM
tweakySorry, just tweaks, no overhaul. I have neither time nor inclination at the moment. Besides, everyone else is on Movable Type. I'll probably move on to MT in the somewhat distant future.
enthymeme ∙
12:04 PM
Friday, November 28, 2003
fine grainBut it is with men as with trees: if you lop off their finest branches, into which they were pouring their young life-juice, the wounds will be healed over with some rough boss, some odd excrescence; and what might have been a grand tree expanding into liberal shade, is but a whimsical misshapen trunk. Many an irritating fault, many an unlovely oddity, has come of a hard sorrow, which has crushed and maimed the nature just when it was expanding into plenteous beauty; and the trivial erring life which we visit with our harsh blame, may be but as the unsteady motion of a man whose best limb is withered.
George Eliot, Scenes from Clerical Life.
Peccavi will be undergoing some tweaks and/or an overhaul. Stay tuned.
enthymeme ∙
2:49 AM
Tuesday, November 25, 2003
from autumn to ashes
enthymeme ∙
12:13 PM
aesthetic discomfitureIs cubism theory gone mad? I have - for as long as I can remember - always been suspicious of the Klees, Mondrians and Kandinskys that litter art-space. Same with cubism. When confronted with art tending towards the non-figurative, my first reaction is suspicion: suspicion as to the artist's motives and his vision - and more importantly - the theory that guides his vision. The overt ambiguity of abstract art is all very fine, but it must be a very queer way of looking at things through the cubist lens.
I question - not from a wish to belittle, it must be said - the point of it all. Why distort? Why make images that stoke aesthetic discomfiture in the viewer? Now most people react to what they take to be art more or less viscerally, and the dictum 'I know what I like but am ambivalent as to everything else' is more or less taken as it is. Why then, it may be asked, do artists militate against aesthetically pleasing art - against tradition?
Ernst Gombrich in his celebrated study Art and Illusion develops a fascinating account of image-making in which the artist's reliance on illusion (and an ever increasing dependance on the viewer's imagination) culminates in that most glorious of movements - impressionism. "Cubism," according to Gombrich, "is a radical attempt to stamp out ambiguity and enforce one reading of the picture." Accordingly, I regard it as reactionary, indeed - a revolt against the tradition of "illusion" that Gombrich paints for us in Art and Illusion:
If illusion is due to the interaction of clues and the absence of contradictory evidence, the only way to fight its transforming influence is to make the clues contradict each other and to prevent a coherent image of reality from destroying the pattern in the plane. [A cubist still life] . . . will marshall all the forces of perspective, texture and shading, not to work in harmony, but to clash in virtual deadlock.
And again:
The main impulse behind cubism must have been an artistic one. It is hardly just to look at cubism mainly as a device to increase our awareness of space. If that was its aim, it should be pronounced a failure. Where it succeeds is in countering the effects of an illusionist reading. It does so by the introduction of contrary clues which will resist all attempts to apply the test of consistency. Try as we may to see the guitar or the jug suggested to us as a three-dimensional object and thereby to transform it, we will always come across a contradiction somewhere which compels us to start afresh.
[. . .]
The function of representational clues in cubist painitngs is not to inform us about guitars and apples, nor to stimulate our tactile sensations. It is to narrow down the range of possible interpretations till we are forced to accept the flat pattern with all its tensions.
Thus the artist's diktat - his canvas and enforced perspectivism - constrains imagination, and the joy with which we had previously used our imaginations to 'complete' a picture is severely delimited. This interaction between art-work and viewer, I believe, is defeated by the introduction of clashing perspectives and counter-intuitive visual clues. And this is why cubism holds no appeal for me. The end.
enthymeme ∙
5:09 AM
Sunday, November 23, 2003
on the plurality of logics, and etc.Two logicians in conversation almost always makes for an exciting interview this side of planet Logicon. Dr Susan Haack of Deviant Logic, Fuzzy Logic fame has a nice chat with Professor Chen Bo of Peking University in the October 2003 issue of the Journal of World Philosophy. For the lay reader with a passing interest in the subject, Professor Haack's remarks on the role and adoption of non-standard logics are instructive - as are her comments on the Fregean turn in the history of logic. Less endearing are her views on the state of the profession and the purported mess - nay, scandal, no less - that is academic publishing. Couldn't be arsed to read the entire thing? Well, here are the less boring bits.
On Willard Quine's claim, in the Philosophy of Logic, that the deviant logician only "changes the subject" when he denies a doctrine of classical logic:
CHEN: In your view, classical logic is revisable. My question is: in what respects could classical logic be, or has it been, revised? What kinds of logical system are genuinely deviant? It has been claimed that deviant logics change the meanings of the logical connectives, so that there is no real conflict, no real rivalry, between supposedly deviant systems and the classical system. What do you think?
HAACK: Whether apparently deviant logics are genuinely rivals of classical logic, or are merely notational variants of the classical system (a question put on the agenda of philosophy of logic by Quine) was discussed at length in Deviant Logic. I argued that change of meaning of the connectives is insufficient to show that there is no real rivalry; and that, in any case, there is no good general argument that deviant logics must invariably involve change of meaning.
On so-called "feminist logic":
. . . the proposal that we need a non-classical "feminist logic" is laughable.
On logical pluralism:
Two things, one quite modest and uncontroversial, the other rather bolder. The modest idea was, simply, that there are numerous systems of logic, with different expressive power, notations, theorems, valid inferences, interpretations, and applications; and that thinking about the differences among them can help us understand some of the deepest metaphysical and epistemological questions about logic, such as: is there just one correct system of logic, or could there be several which are equally correct? What could "correct" mean in this context? How do we recognize truths of logic? Could we be mistaken in what we take to be such truths? The more ambitious idea, articulated in the final chapter of Philosophy of Logics, was that (contrary to instrumentalism) it makes sense to speak of a logical system as correct or incorrect, and that (contrary to monism) there is more than one correct logical system. The argument, in brief, was this: formal systems of logic aspire to represent extra-systematic conceptions of validity and of logical truth. However, there are alternative formal projections of the same informal discourse; and sometimes, when different formal systems give different representations of the same informal arguments, they may be equally good, perhaps for different purposes. (This doesn't mean that we never have to choose between a deviant and classical logic, only that we may not always have to.)
On the state of academia and academic publishing in philosophy:
I think the system is now rife with corruption and incompetence. Too many reviewers are ignorant, prejudiced, and/or more concerned to advance them-selves than to give an honest appraisal. (Much of what is published is weak, uninteresting, blandly conformist, faddy, or sycophantic; and even outright plagiarism too often escapes detection.) Junior people who MUST publish to get tenure, being at the mercy of editors and referees, soon learn that it is much easier to publish bland, inoffensive stuff, and to cater to prejudices, than it is to place work that is truly original or independent-minded. As for the good stuff being found eventually, let me just say that by now the sheer volume of academic publications is absolutely overwhelming, and the dirty secret we all know but don't admit openly is that most of what's published is never read.
And finally, on Frege's anti-psychologism:
CHEN: In some sense modern logic originated in Frege's anti-psychologism; and nowadays logic tends to be thought of as having nothing to do with the processes, methods, and laws of human thinking, but as concerned with language, or perhaps reality. But I'm skeptical of this idea: as I see it, logic is the science of inference and argument; but inference and argument are processes of thinking, so that logic surely is related to our thinking processes. What is your view of psychologism and anti-psychologism in logic?
HAACK: First, perhaps a historical comment is in order: Frege was indeed strongly anti-psychologistic. It seems clear that his antipathy to psychologism was a result, in part, of the strongly Introspectionist character of the psychology with which he was familiar. And Peirce was scathing in his criticism of the idea - which he associated with Sigwart - that validity is a psychological property, a kind of tingling feeling you get when you move from premisses to conclusion. However, Boole, usually seen as the earliest major figure in the development of modern logic, was considerably more sympathetic to psychologism than they. I would distinguish two interpretations of the claim that logic "has to do with" human thinking processes, a stronger and a weaker. As I said earlier in response to your describing me as an "empiricist" in philosophy of logic, I certainly don't believe that logic simply describes our thought-processes (no-one who has ever taught a logic class could think that!). However, I do think that logic is, in a sense, normative for thinking; for principles of deductive logic tell us that, if you argue like this, you will never move from true premisses to false conclusion, that if you argue like this you will end up contradicting yourself, and so on.
Aside from the fact that she is for the most part dead wrong about the problem of induction (mitigated only by her view - correct in my opinion - that an inductive logic is impossible), the interview is pretty good.
enthymeme ∙
2:28 AM
Sunday, November 16, 2003
when you are oldBut one man loved the pilgrim soul in you,
And loved the sorrows of your changing face.
W.B. Yeats
enthymeme ∙
10:51 AM
Thursday, November 13, 2003
conference announcementLogician and philosopher of science Mr David Miller of the University of Warwick will be hosting a conference to mark the 10th anniversary of the death of Karl Popper. The three day conference, tentatively titled Philosophy: Problems, Aims, Responsibilities, will be held from the 16th to 18th of September, 2004. The principal dates for the submission of abstracts, confirmation of acceptance or rejection, and early registration are available at the conference website.
Mr Miller is the author of Critical Rationalism, an elegant and provocative defence of Popper's philosophy of science and non-foundationalist epistemology. He was also the editor of an introductory anthology of Popper's works - Popper Selections - and has published widely in the fields of logic and probability theory. Formerly a research assistant to Popper at the LSE, Miller is widely regarded as the foremost representative of the Critical Rationalist approach to philosophy and is of course, more than familiar with Popper's oeuvre. His research interests at present include, inter alia, the general metamathematics of the Polish logician Alfred Tarski, as well as his (Tarski's) calculus of deductive systems.
enthymeme ∙
1:19 PM
philosophy tvChris Bertram over at Crooked Timber writes with considerable verve on the merits of dramatizing television philosophy. He links to this article in The Guardian by one of the makers of a documentary on Richard Rorty, who apparently is "one of the most interesting thinkers in the west". While I would not concur with that assessment of Mr Rorty, the article is worth reading in full because it raises the rather more interesting question of whether television is a suitable medium for what is (purportedly) an abstract, non-visual subject matter:
Time was when people who made television programmes about philosophy didn't worry about such visual matters. Rather, TV philosophy was about two men sitting in a studio, swivelling in their chairs while their trouser legs rode up exposing unalluring inches of calf. Such at least is my chief memory of The Great Philosophers, Bryan Magee's late-80s series consisting of 15 weekly 45-minute programmes in which he and an acknowledged expert in the field profiled philosophers from Plato to Wittgenstein. Television is different now, and editors wouldn't dare commission a series such as Magee's - although perhaps to do so in our image-insatiable TV age might be a good thing; at least it might be refreshing to juxtapose a series with such production values with the visual gaudiness of much TV. But, I suspect, nothing of the kind will happen.
More's the pity then. For what it's worth, my response to this decline and the alleged incompatibility of philosophy with the televisual medium is found here.
Update: David Herman in The Guardian bemoans the death of intellectual TV:
There was a time when riveting TV meant intellectual discussions and highbrow documentaries. What went wrong?
[. . .]
The people who run British television today, except for the great, unwatched BBC4 and the occasional South Bank Show, do not have the same passion for ideas and the people who produce and create ideas. They sneer defensively at the idea of a golden age. But you can be sure of one thing: they will not produce or commission programmes about the death of Socrates, the ideas of Foucault or the work of Walter Benjamin. That golden age is dead.
enthymeme ∙
10:12 AM
nostalgia for the indulgentPermalinks are up, yo. If you'd like to relive (and relink) the good ole' posts, click on the time stamp.
enthymeme ∙
9:10 AM
Friday, November 07, 2003
mr baude's line drawing dilemmaCrescat supremo Will Baude writes:
Enthymeme and The Curmudgeonly Clerk purport to have found a legal standard that will divide disclosure of one's gender, transsexual status, and HIV status from one's religion, tattooedness, or (perhaps) age.
For the record, I made no such claim. What I made were arguments to the effect that a tort existed. The fact that a tort is not actionable under one standard does not preclude the possibility that it is actionable under another. At common law, the "legal standard" that Mr Baude alludes to is in fact not applicable to torts which involve the intentional transmission of virii or venereal disease (see R v Clarence [1888] 22 QBD 23 - the court ruled in that instance that consent to sexual intercourse was not vitiated by the failure of the husband to inform the wife that he had gonorrhoea). Yet the fact that one avenue of action is closed to the litigant does not preclude the possibility that the tort may be actionable under some other criterion distilled from separate case law - e.g. Wilkinson v Downton [1897] 2 Q.B. 57 or R v Cuerrier [1998] 2 SCR 371. Accordingly, there is no one legal standard that neatly divides the facts, the non-disclosure of which may entail an actionable tort.
In fact, I suggested as much here, in response to the Clerk's concern that there seems to be no remedy under the 'fraud as to identity or quality of act' criterion, following the decision in Clarence.
Now that that's clear, I should nevertheless profess that I concur with Mr Baude that there is a prima facie problem as regards where to draw the line. This is where I part company with the Clerk; because if the textbooks are to be believed, English case law is unclear as to where the lines should be drawn.
I do think, however, that the criteria thus far proposed will suffice for most cases, excepting Mr Baude's 8th hypothetical ('being very bad in bed' and the like). Mr Baude's complaint, in essence, is that the criterion in question (fraud as to the nature of an act) is too broad, and that this broadness allows for frivolous claims. Consider the following: if A makes a representation to B that he is 'good in bed', but turns out to be hopelessly inept, then it would seem that this (mis)representation of A's level of carnal prowess would constitute "fraud as to the nature or quality of the act", since bad sex is obviously of lower quality than good sex. Yet this would strike most people as a patently absurd grounds for a tort action. Is this a failure of the criterion in question? Perhaps. But surely, a subjective appraisal of performance should be distinguished from an objective statement of fact about the quality of said act? Alas, even this might not resolve the dilemma.
One may readily accept that homosexual intercourse is objectively different from heterosexual intercourse. The former involves intercourse between two people of the same sex. The latter, intercourse between two people of the opposite gender. What objective fact, it may be asked, distinguishes bad sex from good sex? Admittedly, Mr Baude might well cite 'number of orgasms'. To that I must confess I have no rejoinder.
enthymeme ∙
9:48 AM
Tuesday, November 04, 2003
actionable? you betI was about to write the obligatory Weekly Clever Post when lo, the Curmudgeonly Clerk weighs in with weighty legal commentary as to the merits of a civil action in the following case, the facts of which are hereby reproduced from The Guardian:
Six men are suing Sky TV after they took part in a reality TV show in which they competed to win the affections of a beautiful woman - who later turned out to be a man waiting for a sex-change operation.
The contestants have instructed law firm Schillings, which specialises in media cases, to begin legal proceedings against Sky One and the show's producer, independent company Brighter Pictures.
The men claim they were tricked into kissing, cuddling and holding hands with the "woman", Miriam, and say it was only after three weeks of filming that they were told she was male.
While viewers know from the start that Miriam is a male-to-female transsexual, the contestants, who include a Royal Marine commando, a ski instructor and an ex-lifeguard, only discover the truth when Miriam picks the winner and then lifts up her skirt.
The Clerk, as we all know, not infrequently outdoes himself when it comes to legal analyses, and as The Right Honourable William Baude of Cambridge quips: "The Clerk defeats most people on the merits, so I generally try hard to avoid arguing with him." In other words, the Clerk kicks ass, and if I weren't me, I'd avoid arguing with him.
But I digress. Blackstone, vol. III, 'Of Private Wrongs', ch. 8, I, 2-3 describes a battery as follows:
Battery is the unlawful beating of another. The least touching of another's person wilfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner . . .
. . . unless there is consent, implicit or expressed. Without consent, "[t]he least touching" amounts to a violation of a person's physical integrity - i.e. battery - under the law. Where there is apparent consent, as in the instant case, the obvious question is whether 'apparent consent' is vitiated because it was given without full knowledge of the material facts. The answer to the obvious question is, I submit, in the affirmative.
The Court of Appeal, in R v Richardson [1999] Q.B. 444 CA (Crim Div), held that:
[F]raud vitiated consent to an act . . . only where it had induced a mistaken belief as to the identity of the person doing the act or as to the nature or quality of the act.
Stephen J's judgment in Clarence [1888] 22 Q.B.D. 23, with which the Court of Appeal in R v Gareth Linekar [1995] 2 Cr. App. R. 49 CA (Crim Div) concurs, puts the matter thus:
[T]he only sorts of fraud which so far destroy the effect of . . . consent . . . are frauds as to the nature of the act itself, or as to the identity of the person who does the act. There is abundant authority to show that such frauds as these vitiate consent both in the case of rape and in the case of indecent assault. I should prefer myself to say that consent in such cases does not exist at all, because the act consented to is not the act done.
Whether or not there is a tort in the present case would therefore depend on whether there is fraud as to the identity of the person who is the alleged perpetrator of the (alleged) tort. The men contend that consent would not have been forthcoming had they been appraised of the fact that Miriam was a pre-operative transsexual. They had consented to being fondled by (someone whom they believed was) a woman. They did not consent to being fondled by a man. And if there is no consent - that is, if consent is negated by fraud as to the identity of the fondler - then the fondling amounts to an intentional tort.
So was there a "mistaken belief as to the identity of the person" in the instant case? On the face of it, yes. For surely gender is regarded by most as significantly constitutive of one's identity. In the present context, a mistaken belief as regards Miriam's gender would, I submit, amount to a mistaken belief as regards her identity (he was thought to be a woman, but in fact wasn't). As to the question of whether the mistaken belief was fraud-induced, the facts suggest an answer to the affirmative: the explicit object of the show, after all, was to deceive its contestants into thinking that Miriam was a woman. As the Clerk notes:
Accepting the account of the plaintiffs for purposes of discussion, deceit as to Miriam's actual sex was the very plot of the show. Indeed, it seems that the show's producers must concede this, if The Guardian [sic] story is accurate. So there appears to be no real dispute as to the critical issue.
Accordingly, it would seem that Sky TV and Brighter Pictures are doubly damned on the facts. For on this account, consent would indeed have been vitiated, and as noted, "[t]he least touching" sans consent amounts to battery - and an actionable tort.
Update: As quick as they come from the Clerk. Among other things, he observes that:
Enthymeme also harkens back to Blackstone's definition of "battery." I think it is fairly safe to say that William Blackstone would be flabbergasted by the facts under consideration.
I try to explain my exclusion of R v Tabassum (Naveed) [2000] 2 Cr. App. R. 328 here.
enthymeme ∙
11:26 PM
Friday, October 31, 2003
as good as deadWe can love, and believe we are committed to, someone who is dead. And the object of such love and commitment may be, not someone who is dead, but some living person's earlier self.
Derek Parfit, Reasons and Persons.
enthymeme ∙
2:01 PM
Monday, October 27, 2003
mooting panic stationsWould a duty of care to a claimant in a tort action exist if the claimant's identity was previously unknown to the defendant? Should White v Jones be applicable in such a case, i.e. the fictive Fishery v Sloan?
The Court of Appeal ruled on grounds 2 that, "[i]n the alternative, even if the factors set out at (1) did not prevent a duty of care from arising, the authority of the decision of the House in White v Jones was to be narrowly confined and could not extend to a case in which the identity of neither the testator nor the beneficiary was known to the adviser."
Junior counsel for the appellant is to argue for the contrary: that White v Jones could be extended to a case in which the identity of neither the testator nor the beneficiary was known to the adviser.
The arguments are as follows:
Argument (1) Identities of claimants are immaterial since the possibility of someone relying on the statements in the kit were reasonably foreseeable (as the inclusion of the disclaimer suggests) - as per Lord Atkin in Donoghue v Stevenson - and hence cannot qualify as grounds on which White v Jones should be "narrowly confined".
Argument (2) Generally, there have been cases wherein duty of care was owed even to parties whose identities were unknown to the advisor. For instance, it was decided in JEB Fasteners Ltd v Marks Bloom & Co that the auditor who prepared negligently a set of accounts - analogous to preparing negligently a set of instructions as to the preparation of a will - owed a duty of care to a claimant whom he did not know would rely on the accounts. Also, in Smith v Eric S Bush (A Firm), the House of Lords decided that the valuer of a property engaged by the mortgagee had a duty of care to the potential class of unidentifiable and unknown purchasers to whom he can reasonably foresee that his valuation will be shown.
Argument (3) More specifically, there have been cases in which White v Jones was applied, wherein the advisor did not know the identities of the people to whom he owed a duty of care to. For instance, in Killick v PricewaterhouseCoopers. The defendant in that instance was appointed by the directors of a company to value the shares of said company for the purpose of determining the amount to be paid to the estate of a deceased shareholder who was required by the Articles of Association to sell his shares in the company. Neuberger J held that the defendant owed a duty of care to the executor of the shareholder, one reason being that the defendant knew the specific purpose of the appointment, without previously knowing the identity of the executor of that estate. By analogy, it is submitted that the defendant in the present case could reasonably foresee that there is a possibility that a "transferred loss" could have been suffered by the intended beneficiary of a will drawn up in accordance with his instructions, and thus owed him a duty of care, despite not knowing his identity. There is thus no reason that White v Jones should be allowed to apply in Killick, but not in Fishery v Sloan. The identities of both claimants in both cases were unknown to the defendant.
Argument (4) Since White v Jones is a "statement" equivalent of Donoghue v Stevenson (in which the identity of the claimant is, prior to the tort action, unknown to the defendant), then it is submitted that as a matter of principle, White v Jones applies also to cases in which the identities of the claimants are unknown to the defendant prior to the tort action.
Argument (5) Pre-emption of arguments from counsel for the respondent that cite Caparo Industries plc v Dickman as a case in which it was decided that no duty of care was owed to claimants whose identities were, prior to the tort action, unknown to the defendant. The exception of Caparo should be disregarded, I submit, for the following reasons. First, it is a result of a statutory duty to complete the audit, mandated by the Companies Act 1985, the express purpose of which was to allow the shareholders, as a body, to exercise supervisory jurisdiction over the company. The audited accounts were therefore provided only for those purposes. They were not provided to give information to (an unidentifiable class of) potential investors on which to make investment decisions. The purposes of the statute were considered by Lord Oliver to be "aimed primarily at the protection of the company" and his honourable Lordship finds it difficult to believe that it could "have been inspired also by consideration of the public at large and investors in the market in particular . . .". There is no such mandatory requirement to those purposes in Smith v Eric S Bush. Nor in Fishery v Sloan (the present case). Thusly, Caparo should be distinguished.
On the foregoing arguments, duty of care to a claimant of unknown identity in a tort action is not obviated on grounds 2. The Court of Appeal is thus, I submit, in error, and White v Jones is ipso facto applicable.
battle stations
Gentle Reader, if you think, as do I, that my submissions blow, please do not hesitate to send me a few ass-saving pointers. Thanks folks.
enthymeme ∙
12:18 AM
Saturday, October 25, 2003
good fortuneI was at the local Oxfam yesterday when I had the good fortune to discover Bryan Magee's Modern British Philosophy (out of print like, probably since before I was born). The by-now legendary series of interviews on which the book is based was first broadcast on BBC Radio 3 during the winter of 1970-71, the transcripts of which were reworked into publishable form by Magee and the interviewees.
There were the usual superstars: Alfred Ayer, Stuart Hampshire, Karl Popper, Gilbert Ryle, Ninian Smart, Peter Strawson; with the less distinguished likes of David Pears, Geoffrey Warnock, Bernard Williams, et alia making up the numbers.
Naturally, I skipped right to the Sir Karl celebrity death-match interview featuring Geoffrey Warnock and Peter Strawson:
STRAWSON: . . . I know you, Sir Karl, are a realist and I'm with you there. I can understand anybody being bored by and repelled by Wittgenstein, who is a very, very peculiar person, though I think a genius. But would you want to repudiate also the entire Oxford style, the entire Oxford school?
POPPER: I don't repudiate anybody, and there are very good philosophers in Oxford. As to the linguistic school, some day, perhaps, something may come out of it: something interesting. My own attitude towards this school is that I don't read its publications any longer. I do other things. And, of course, I'm not read by them either. So it really doesn't matter. The relationship is kind of mutual.
STRAWSON: I must correct you on that point. You are read by us.
POPPER: I don't think so; anyway, it seems that ours is a kind of broadened mutual admiration society.
I also bought some tort and contract textbooks.
enthymeme ∙
11:08 AM
Wednesday, October 22, 2003
may it please the courtTake heart, fellow mooters! Justice (and former Solicitor General) Robert Jackson, quoted in Yarborough v Gentry, says rather encouragingly:
I made three arguments of every case. First came the one that I planned - as I thought, logical, coherent, complete. Second was the one actually presented - interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.
"Advocacy Before the Supreme Court", 37 A. B. A. J. 801, 803 (1951).
Via The Volokh Conspiracy.
enthymeme ∙
5:55 AM
Friday, October 17, 2003
pliant, are we?Greg Weston of Ex Parte writes:
Other than Singapore and small parts of the Arab world, where has drug prohibition ever been effective? And the relative success of those countries has more to do with their servile populations than anything else, and fortunately we don't have such a people.
Gee, and you'd think it has more to do with the mandatory death penalty that Singapore imposes for trafficking certain quantities of classified drugs (e.g. more than 15 g of heroin).
In point of fact, drug offenders invariably get caught in Singapore - and arrests are routinely publicized - as are executions. Stays of execution are rare. This harsh but seemingly effective drug enforcement regime, coupled with the death penalty and a good deal of publicity, quite simply deters a large class of recreational drug users.
So why isn't the death penalty qua deterrent as effective in places like the Philippines, Pakistan, Iran, Malaysia, Thailand, or China? Mr Weston supposes that people there aren't quite as servile. On the face of it, this just seems to me a rather ad hoc - and contrived - explanation as to why this is so. In presupposing that harsher regimes aren't necessary more effective, Mr Weston simply begs the question. For if we suppose that, in these countries, traffickers and drug offenders get away with it often enough such that punishment becomes an all but remote possibility, then it isn't so much that the punishment loses its deterrent effect, but that the risk of getting caught is diminished. And it is this - not the non-existence of deterrence - that emboldens traffickers and the like.
The essential difference is that some countries have more effective enforcement regimes that, in conjunct with the death penalty, produces a powerful deterrent. Accordingly, the death penalty alone is unlikely to dissuade the trafficker if he thinks it is unlikely that he will get caught. Servility has nothing to do with it.
Update and Nota Bene: As a measure of comparative stringency, "trafficking" (or in essence, possession) in Singapore is enough to convict. Intent to deal doesn't even enter the equation. According to the Central Narcotics Bureau:
The presumption clause under Section 17 of the Misuse of Drugs Act (MDA) stipulates that anyone caught in the possession of a certain amount of a specified drug is presumed to be trafficking in the drug and the onus is on him to prove that the drug found on him is not for the purpose of trafficking.
Unusually, or alarmingly, Singapore asserts extraterritorial jurisdiction over drug consumption offences:
A new provision was made in the law to treat consumption of drugs outside Singapore by a citizen or permanent resident as if the offence took place in Singapore. Before this provision, offenders were able to defend themselves by claiming that they had consumed the drugs overseas. With the amendment, a Singapore Citizen or PR whose urine is tested positive for controlled drugs cannot claim consumption overseas as a defence.
enthymeme ∙
4:58 AM
Wednesday, October 15, 2003
words and thingsIn the saltmines of Salzburg, they throw a bare winter branch into the worked-out depths of the mine. Two or three months later it is brought out covered with brilliant crystallisations: the tiniest twigs no bigger than a titmouse's claw, are decked with myriad diamonds, dazzling and ever-changing; the original branch is unrecognisable. I use the word crystallisation to describe how, with everything that occurs, the mind discovers new perfections in the beloved.
Stendhal, On Love.
enthymeme ∙
10:26 PM
Monday, October 13, 2003
Did some sight-seeing. I have a public law seminar at 9 tomorrow that I have not prepared for. I should probably do something about it.
enthymeme ∙
6:22 AM
Sunday, October 12, 2003
tintern abbey, wales
enthymeme ∙
9:30 PM
Wednesday, October 01, 2003
j'arriveBlogging will recommence soon.
enthymeme ∙
3:01 PM
Monday, September 01, 2003
for if we are silent, who will speak?What a monument of human smallness is this idea of the philosopher king. What a contrast between it and the simplicity of humaneness of Socrates, who warned the statesmen against the danger of being dazzled by his own power, excellence, and wisdom, and who tried to teach him what matters most - that we are all frail human beings. What a decline from this world of irony and reason and truthfulness down to Plato's kingdom of the sage whose magical powers raise him high above ordinary men; although not quite high enough to forgo the use of lies, or to neglect the sorry trade of every shaman - the selling of spells, of breeding spells, in exchange for power over his fellow-men.
The Open Society and Its Enemies.
enthymeme ∙
12:08 AM
Monday, July 28, 2003
the great and the deadYou may be right and I may be wrong, and with a little effort we may get nearer to the truth.
Happy Birthday, Sir Karl.
Karl Popper was born in Vienna on 28 July 1902, and died in London on 17 September 1994.
enthymeme ∙
8:24 PM
Friday, April 18, 2003
prolegomenaSilence teaches you how to sing.
enthymeme ∙
11:59 PM