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The Criminalization of Curiosity

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Here’s another glorious contribution to the “ISIS-is-coming-so-let’s-turn-our-brains-off-in-abject-terror-and-think-of-more-rights-to-violate” literature. This one is by Eric Posner, son of Richard Posner, and evidence for the old saw that some apples fall in close proximity to the trees whence they came.

Eric Posner’s suggestion? Let’s pass a law that criminalizes the act of accessing an ISIS website, on the premise that ISIS’s propaganda has the causal powers of a cognitive virus that incapacitates people’s minds and drags them involuntarily into terrorist acts.

Consider a law that makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions. …

The law would provide graduated penalties. After the first violation, a person would receive a warning letter from the government; subsequent violations would result in fines or prison sentences.

But don’t worry: exceptions “could” be made

for people who can show that they have a legitimate interest in viewing ISIS websites. Press credentials, a track record of legitimate public commentary on blogs and elsewhere, academic affiliations, employment in a security agency, and the like would serve as adequate proof (my emphases).

What are the chances that “legitimate” and “the like” can be defined in a non-circular way?

And what about people without press credentials, etc.? What about people just starting out in “public commentary,” and therefore lacking a track record? Or people with a sense of curiosity, idle or otherwise, who would simply like to get a first-hand knowledge of what ISIS is about, rather than relying on “experts” picked by “the likes” of Eric Posner? Do non-credentialed people no longer have rights to free speech, or are rights reserved to a special, arbitrarily defined elite with credentials that demonstrate their worthiness to have them?

The latter, evidently. Any remaining worries can be dispatched by that old jurisprudential stand-by, “the balancing test.”

A simple balancing test would permit laws to target dangerous speech that does not advance public debate.

“A simple balancing test”–so simple that every attempt at applying such a test raises more questions than it answers, even if we arbitrarily decide that all jurisprudence must be conducted on utilitarian-consequentialist assumptions. Apparently, public debate about ISIS is not advanced by citizens’ having first-hand evidence of the nature and content of ISIS propaganda. The only permissible evidence is evidence filtered through people with “a track record of legitimate public commentary” on the subject–where “legitimacy” is presumably defined and decided by “like”-minded people with the same credentials.

Posner forgets that the legislators who are tasked with drafting his crackpot law will need access to the banned sites in order to know which sites to ban. But legislators are not on his exception list. Neither are their staffs. Neither for that matter are jurists, prosecutors, law enforcement officers, or juries. The whole idea that law involves an orderly, principled process  seems not to figure in his calculations.

How his law is to be written, enforced, or judged is therefore left a mystery. One possibility is that criminal defendants will be arrested or tried by journalists, academics, or bloggers. Another, I suppose, is that the relevant legal processes will take place by telepathy. A third possibility is that “we” dispense with legal procedures and trials altogether, criminalize access to any site that fits an “ISIS-relevant algorithm,” monitor Internet access at will, arrest anyone who accesses a banned site, and treat access to a banned site as a strict liability offense so as to simplify the process of conviction. It sounds like a reductio, but with a proposal like this, a reductio is just another entailment alongside all the others.

If you think I’m reading Posner uncharitably on the grounds that his weasel phrase “and the like” was intended to cover bloggers and law enforcement officers (legislators, judges, prosecutors, juries…), ask yourself how you would feel if someone demanded to search your home on the basis of his or her affiliation with a blog or online publication, be it BHL, Notes on Liberty, Talking Points Memo, Daily Nous, Slate, or even Policy of Truth. If you asked what the hell they were doing, it wouldn’t help for them to invoke their “likeness” to law enforcement officers. But then it won’t do to invoke the “likeness” of law enforcement officers (etc.) to bloggers while claiming that a reference to the latter ought implicitly to be construed as a reference to the former.

There is, by the way, no reason why academics or bloggers should be less susceptible to seduction by ISIS than anyone else, unless you stipulate in ad hoc fashion that the academics and bloggers who will have access are restricted precisely to those least susceptible to influence-by-ISIS. In that case, you’d probably want to restrict my access before you restricted most other people’s. If ISIS targets bored and angry people of vaguely Muslim sensibilities, beware of the vaguely Muslim academic who has spent time in Palestine, Pakistan, and Saudi Arabia; has suggested that Locke’s Second Treatise can be given a Hamas-friendly reading; and who still has piles of grading to do after everyone else at the university has left for break.

Many able commentators have knocked down this or that feature of Posner’s argument on moral, constitutional, legal, and logistical grounds. I would simply point out that the argument relies on metaphors that would need to be cashed out in literal terms for the argument to get off the ground. At a minimum, we would need some empirical evidence for the claim that ISIS websites have the causal powers of a virus, that the virus in question incapacitates otherwise non-culpable minds, and that in doing so, it drags these helpless innocents into sinister terrorist or terrorist-abetting actions they couldn’t otherwise have committed. I’m afraid I don’t really believe any of that, and don’t see any reason to believe it, either.

What I find more plausible is the hypothesis that terrorism and the wars supposedly waged on it have so weakened the critical powers of our commentariat that they fear, possibly with justification, that they lack the capacity to refute what ISIS has to say. Unable to refute the propaganda, and unable to conceive its appeal to those to whom it has appeal, they feel impotent to contribute to a war effort that they have, on the basis of little more than rhetorical self-mesmerization, turned into a categorical imperative for all of us. But they feel the pressing need to do something. So day by day they produce what they like to think of as novel proposals for eliminating this or that right in the futile hope that the fewer rights we have, the more security we’ll enjoy. As for the task of offering a justification for the war “we’re in,” or the hysteria, rights violations, or state-worship it seems to necessitate, don’t hold your breath for an answer, or even an attempt at one. They’re AWOL on all that.

Eight years ago, I wrote a very critical review of Richard Posner’s book, Not a Suicide Pact: The Constitution in a Time of National Emergency. Several years later, on re-reading the review, I almost wondered whether I’d been too rude or harsh about things. I ended it with this thought:

Posner is right to say that the Constitution is not a ‘suicide pact.’ I wonder, however, whether that phrase might not accurately describe the jurisprudence he defends in his book.

I thought long and hard before I committed those sentences to print. Was I being too snide? Too clever by half? Was I exaggerating?

Re-reading the review now, however, I’m really glad I wrote what I did, how I did. Virtually every move in Eric Posner’s article is one originally made in Richard Posner’s book; the son has simply recycled the father’s adhocrocratic prescriptions and given them a contemporary twist for the current mood.

It occurs to me with a bit of middle aged weariness that this particular malady–apocalyptic rhetoric about the unprecedented danger we face from terrorism, followed by a regrettably unavoidable proposal for more rights violations–is fated to pop up at semi-predictable intervals of our public life, like outbreaks of the measles virus or the re-emergence of the cicadas. I guess that fact implies in turn that some of us are fated to respond over and over again to such proposals in what often seems to others like a histrionic way, like a pedantic version of Nietzsche’s Zarathustra engaged in a finger-wagging version of the eternal recurrence.

Well so be it. It is, I’ll admit, boring to read or even write the nth sounding of the alarm over threats to free speech. I can testify from personal experience, however, that there is one thing more boring still–life under a regime of censorship. It’s a bore to sound the alarm, but it’s more boring not to be able to. A “simple balancing test” suggests which bore is preferable to the other.

Postscript, December 29, 2015: I found Eric Posner’s arguments so ridiculous that I almost wondered whether I over-reacted in writing about them at all. No sooner do I have this thought than along comes an article in The New York Times devoted not just to Posner’s Slate piece, but to variants on the theme expressed, among others, by Cass Sunstein and Jeremy Waldron.

Sunstein’s views are laid out in this short piece at Bloomberg View. The first thing to say is that it’s not on the same topic as Posner’s. Posner wanted to criminalize access to ISIS-glorifying websites, even by people who may have no sympathy for ISIS at all. Sunstein is (much more reasonably) discussing the limits on the endorsement of potentially violent activities by those endorsing it.

In particular, he questions the “clear and present danger” test, suggesting that it’s worth asking whether the test is “ripe for reconsideration.” He ends up with this formulation:

If (and only if) people are explicitly inciting violence, perhaps their speech doesn’t deserve protection when (and only when) it produces a genuine risk to public safety, whether imminent or not.

I don’t have a strong objection to that formulation, but it’s a long way from Posner’s view, and it’s also a long way from being clear enough to be susceptible of a response. What it needs and lacks is an account of what it is for a speech act to “produce a genuine risk to public safety”–a tall order.

A speech act can in some sense “produce a genuine risk to public safety” without inciting anything. If what I say fills a large number of people with rage, you might say (misleadingly) that my assertion that p “produced” the rage that (say) led to a riot, whether or not I incited it in the sense of explicitly calling for it. But from a different perspective, the speech act didn’t “produce” anything except speech. The crowd considered the sound and acted on it, and each individual in the crowd produced the riot. In one sense, then, “produce X” means “raise the probability that X will happen.” In another sense, “produce X” means “intentionally bring X about, or try to bring it about.” It’s not clear which one Sunstein means. If he means the latter, I can agree with him, but not if he means the former.

On the latter interpretation, the suggestion I would make would be to regulate incitement by analogy with assault and/or conspiracy. If I incite violence, my act should be legally actionable just in case it credibly calls for violence against some particular victim, the victim credibly fears a threat on the basis of this call, and the threatened act would violate the criminal code (=violate rights).  Celebrating a murder wouldn’t do it, even if you called in the midst of the celebration for more killing. Neither would this shit, vile as it is. (The correct way of handling something like the preceding would be for the guardians of the mosque to deny the speaker the right to speak in the it, i.e., to throw him out, not to arrest him.) I think it’s obvious that we don’t want to say that an Ayaan Hirsi Ali, Theo van Gogh, or Salman Rushdie et. al. should be held responsible for the overwrought reactions people have had to their work, even if the work in question is thought to “incite” (i.e., elicit) violence by its “inflammatory” or “incendiary” style.

In many cases, it seems to me that the dangers Sunstein mentions can be averted by assiduous enforcement of weapons laws, and also by demanding that political protest be regulated so that it’s confined to a specific place and time. If people want to gather in a park, with a permit that confines them to the park for a certain amount of time, and call for the overthrow of the U.S. government–or the mass slaughter of Jews, Muslims, or atheist philosophers–while they’re there during that time, that’s fine. But if they call for those things as they leave the park en masse with a view to enact the overthrow, that’s a different story. And a demonstration with weapons is another story as well. (It’s a tremendous irony that critics of Islam object to the face-concealing features of the hijab, but show up at armed protests against Muslims wearing masks.)

It’s also not clear from Sunstein’s account what counts as a genuine risk to public safety, or even what’s meant by “public safety” in a day and age when college students demands “safe spaces” from ordinary political speech. But that said, Sunstein’s view are light-years away from Posner’s.

Waldron’s views are more obviously objectionable than Sunstein’s (and apparently laid out in his 2012 book, The Harm in Hate Speech).

“I argued, in the adjacent area of hate speech, that the clear and present danger test is inadequate,” Mr. Waldron said in an interview. “You can poison the atmosphere without an immediate danger, but sometimes, waiting for an imminent danger is waiting too long.”

Well, you can “poison the atmosphere” simply by committing the fallacy of poisoning the well–or by committing almost any ad hominem fallacy. Would Waldron want to say that the commission of ad hominem fallacies should be illegal? I have trouble believing that the preceding quotation expresses Waldron’s considered view, but taking it at face value, as stated in the Times, I find it ridiculous. If “poisoning the atmosphere” were enough to trigger legal action, virtually the whole Republican presidential slate would have to be put under arrest, followed by whole college campuses.

I agree with Posner, Sunstein, and Waldron on one thing: legal thinking on incitement is a mess and could use some rethinking, though not I suspect in the direction they seem to want to take things.

“Things Have Been Weird This Week”: Calligraphy, Pedagogy, Terror

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I’ve updated the post on Muslim identity to add a short postscript on the Arabic calligraphy case that closed down the schools in Augusta County, Virginia.

I guess the take-away here for us academics is this: if you want a day off, involve your students in an activity involving Arabic calligraphy. Of course, this method has its risks, since you might get more than a day off.

I belatedly saw this item, which gave me the title of the post.

SMH at BHL: Munger on Trump, Locke, and Religious Toleration

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Should I stop reading BHL? Or should I keep reading and stop criticizing it? You tell me, PoT readers, because I find myself shaking my head at some of the stuff they’ve been producing lately.

Take Mike Munger’s latest post on religious toleration. Munger opens with some comments on Trump’s views on Muslims, then quotes a bit from Locke’s Letter Concerning Toleration, then “concludes” (sort of, but not really) that while he thinks Trump is wrong, Locke’s Letter convinces him that he’s not sure that Trump is wrong. The conjunction of the two claims skates perilously close to Moore’s Paradox, but set that aside, if you can. What exactly is the argument that convinces Munger that Trump might be right?

It’s mainly this passage from the Letter, overtly discussing Muslims, covertly discussing Catholics, but taken by Munger to apply implicitly to Trump and to Muslims today:

It is ridiculous for any one to profess himself to be a Mahometan only in his religion, but in everything else a faithful subject to a Christian magistrate, whilst at the same time he acknowledges himself bound to yield blind obedience to the Mufti of Constantinople, who himself is entirely obedient to the Ottoman Emperor and frames the feigned oracles of that religion according to his pleasure. But this Mahometan living amongst Christians would yet more apparently renounce their government if he acknowledged the same person to be head of his Church who is the supreme magistrate in the state.

Munger’s comment:

The relevant question for present purposes is whether one can, and perhaps should, understand Trump’s point in the same context.  That is, the claim is not that religious freedom should be limited.  Rather, Trump’s claim is the same as Locke’s:  any religion that ipso facto requires loyalty to a foreign power,  or requires that an honest believer reject the civil authority and its laws, is a political threat and an overt incitement to violence and revolution.

I think the “relevant question” is how any commentary on this subject could get this confused this fast.

First, a pedantic opening criticism: Munger gets Trump’s views wrong. He describes them like this:

He [Trump] has apparently slathered onto this steaming dish the claim that even American citizens who travel abroad in Muslim countries should not be readmitted.

The link goes to a December 7 article in The Washington Post. A day or two later, however, Trump had changed his tune:

But on Tuesday Mr. Trump clarified his proposal, saying that he would exclude only foreign Muslims, not Muslim American citizens who travel abroad and then seek to come home. That distinction, legal specialists said, made it far less likely the courts would strike it down.

“If a person is a Muslim, goes overseas and comes back, they can come back,” Mr. Trump said on ABC. “They’re a citizen. That’s different.”

I quote this not just to score points–though I don’t mind doing that–nor just to make hay, for the nth time, of BHL bloggers’ strained relationship with the realm of fact. I say it because there’s something really implausible about thinking that Trump’s views are stable enough or theoretically interesting enough to have their roots in Locke’s Letter. Trump doesn’t mention Locke. Nor does he make arguments. What he does instead is to tweet 140 characters at a time, yell down his interlocutors, and let everybody else do his work for him by pretending that he’s said something that counts as political discourse.

So I have to wonder: what is the point of putting theoretical arguments in the mouth of a politician who doesn’t have any arguments of his own, and seems to want to turn the country into a police state? From treating Trump’s claim in heuristic fashion as if it were Lockean, Munger somehow skates in a clause or two to the claim that it just is a Lockean argument. At this rate, I guess BAIR is a Lockean organization, and an armed mob’s surrounding a mosque is a Lockean activity. What next? Lockean internment camps?

So let’s return to the text and try to understand the contorted route by which Munger wants to make Locke relevant to Trump. Though the passage is about Muslims, Munger takes it to be a shot against Catholics, then infers that what is true of the Catholics of Locke’s day might be true of the Muslims of ours. Here’s a suggestion: why not skip the pointless intermediate step and just read the passage as stated?

Here it is again:

It is ridiculous for any one to profess himself to be a Mahometan only in his religion, but in everything else a faithful subject to a Christian magistrate, whilst at the same time he acknowledges himself bound to yield blind obedience to the Mufti of Constantinople, who himself is entirely obedient to the Ottoman Emperor and frames the feigned oracles of that religion according to his pleasure. But this Mahometan living amongst Christians would yet more apparently renounce their government if he acknowledged the same person to be head of his Church who is the supreme magistrate in the state.

I won’t comment on how this passage applied to the Muslims of Locke’s day, but it has almost zero application to the Muslims of 2015.

First, the passage presupposes the existence of a caliphate, but there is no caliphate today (even ISIS only aspires to become one), and there hasn’t been a “real” one since 1924.

Second, the passage presupposes the existence of a caliphate to which Muslims universally or at least ubiquitously swear allegiance, but Muslims didn’t universally pledge allegiance to the Ottoman caliphate even when it did exist. To cite just the simplest and most obvious example, the Muslims of the Palestinian national movement rebelled against the Ottomans during World War I.

In fact, you’d be hard pressed to find universal allegiance to any caliphate since the death of the Prophet Muhammad (d. 632 AD). The disputes over caliphal succession began with his successor, Abu Bakr, and have continued to this day. Dispute over the legitimacy of this or that caliphate has been one of the major themes of Islamic history ever since. (Has anyone at BHL heard of the Sunni-Shia split?) To write about Islam and not know this (or not show any sign of knowing it) is like writing about Islam from the historiographical equivalent of a blank slate.  You might as well write about Christianity without having heard of the Protestant Reformation. It adds insult to injury when what you’re doing is making Trump into a Lockean while scratching your head about the plausibility of his proposals to violate the rights of American Muslims.

Third, caliphate aside, there is no global analogue to a “Church” among contemporary Muslims. The closest analogues might be individual mosques or Islamic Centers, or at best larger scale organizations like the Islamic Society of North America. But these don’t differ from their Protestant or Jewish analogues, and no respectable person is sitting around wondering whether we should deprive Protestants or Jews en masse of their rights because they belong to religious organizations that could conceivably (in someone’s morbid thought-experiment) rival the states we live in.

Nor is any decent person asking whether we should do the same for Catholics, despite the fact that the Catechism of the Catholic Church effectively makes adherence to consequentialism a sin against conscience (#1789), and regards abortion as morally on par with murder and genocide. The potential for conflict with the rule of civil law is pretty obvious on both counts: abortion rights are the law of the land, and “interest balancing” is an essential feature of contemporary jurisprudence. In fact, experts on the subject tell us that anti-abortion views entail violent civil disobedience, not that I agree. So  if we’re going to take Lockean worries about Catholicism seriously, we needn’t get lost in the thickets of Locke’s polemical intentions or the details of English history ca. 1688. Locke’s worries can be raised about Catholics today and used to buttress Trump-like proposals today–used, at any rate, by anyone whose commitment to the principle of rights is weak enough to be tossed about by the winds of Donald Trump’s oratory.

And then there’s the issue of the Church’s view on its lack of accountability to “the civil authorities” regarding accusations of pedophilia engaged in by Catholic priests. In the Apostolic letter Sacramentoriam sanctitatus tutela (2001), then-Cardinal Ratzinger  argued that “Cases of this kind [=accusations of pedophilia against priests] are subject to the pontifical secret,” i.e., that the Church has no binding obligation to report the findings of internal investigations into allegations of pedophilia to the civil authorities, even if it finds the accused guilty. I think by now we all know the story of how Cardinal Law escaped the law, whether or not we’ve seen “Spotlight” (I haven’t, yet).

The Vatican has long regarded itself, and its canon law, as above the civil law of any country and above international law as well, at least in cases of conflict between them.* And canon law binds all Catholics as firmly as sharia binds Muslims. So once again we confront a moral-political equivalence, not an idiosyncrasy of Islam: adherents of both faiths claim the right to supersede civil law, and both claim that God’s law stands above human law. (It should go without saying that I don’t mean that Catholics or members of any other religious denomination should be treated in the way that Trump wants to treat Muslims.)

Bizarrely, despite Munger’s misinterpretation of Trump, he doesn’t think Trump is limiting religious freedom, even if we (falsely) take Trump to be barring literally all Muslims from the United States. Here is Munger again:

That is, the claim is not that religious freedom should be limited.  Rather, Trump’s claim is the same as Locke’s:  any religion that ipso facto requires loyalty to a foreign power,  or requires that an honest believer reject the civil authority and its laws, is a political threat and an overt incitement to violence and revolution.

“The claim is not that religious freedom should be limited.” No, not at all. I wonder whether Munger has heard of Trump’s proposals to close down mosques. Or to put Muslims in internment camps. Or the suggestion (if that’s what it is) that Muslims be put on a registry–not ruling out the possibility that they have to sign up and register for it in the way that 18-year-old males currently have to sign up for Selective Service.  If these aren’t limitations of religious freedom, how would he characterize them?

But maybe he wants to focus narrowly on the issue of barring entry to Muslims, including citizens. Fair enough: here’s a real-life example. My parents spent the last three weeks in Pakistan, returning last night at JFK via Dubai. They’re both naturalized citizens. Though my mother is religious and my father is not, for present purposes let’s call them both believing Muslims.

So imagine that my parents arrive at JFK bearing visa stamps from Pakistan and the UAE, and bearing a Muslim-sounding name like “Khawaja.” On Trump’s original proposal, they wouldn’t be allowed back into a country that they had lived in for forty years. They’d never see friends or family again–and if Muslim, their American friends and family would never see them again, for fear of not being allowed back to their homes after visiting them abroad. My parents would forfeit all of their assets, including their house, and possibly including their bank accounts and their prospective retirement income. Since they’re not dead, their will wouldn’t apply, so all of those assets would revert to the state. They would have to find a home back in Pakistan, a place they left forty years ago–or else in the UAE, where they would lack citizenship and not know the language. They’re both in their 70s, but they’d have to begin their lives anew. (Would it be money laundering if I cut my parents a check or two for food? Would I be materially aiding the enemy if I sent them a care package of rice, lentils, and achaar?)

Perhaps Munger thinks that a barrier on entry back to one’s home country is not a limitation of specifically religious freedom, since the people in question are not returning home for a specifically religious reason. (Well, let’s be careful here. My mother is a kind of folk occasionalist, so as far as she’s concerned, every action is a divine action, and everything is a “religious reason.”). But obviously, their freedom would be limited on religious grounds–i.e., because they were Muslims. It seems obvious that Trump’s claim can accurately be characterized either by saying he wants to limit religious freedom, or more pedantically by saying that people’s freedom should be limited on a religious basis. One obvious way of reading “limited” would be to take it as a euphemistic synonym for “violated.” In other words, the proposition Munger is considering is: “Should we or should we not, on a Lockean basis, violate people’s rights, as long as they’re Muslims?” Is that really an improvement on Trump, or is it evidence that he’s managed to sweep libertarian academics into his juggernaut?

We’re left with one last issue. What if Islam “ipso facto requires…that an honest believer reject the civil authority and its laws”? Gee. In other words: what if Muslims were…anarchists, like half of BHL? Then we’d really have a case for keeping them out of the country. I guess this means that the next time Michael Huemer leaves the country, he’s indefinitely to be detained at the border and refused entry back into the United States. Same with Gary Chartier, Roderick Long, and all those other anti-authoritarians at C4SS. I can’t wait for the next time APEE holds a conference in Guatemala City, and half of the libertarian movement is stuck there for the rest of their lives. That’s a long time to have to pore over Locke’s Letter.

I guess the advice I’d offer here is: instead of speculating whether Islam “ipso facto requires” the rejection of non-Muslim civil authority, why not do some actual research and discover the answer? Every religion, and probably every major secular doctrine, can be interpreted in such a way that it entails a rejection of “civil authority and its laws”–Judaism, Christianity, Marxism, and (believe it or not) Lockean libertarianism. And every religion and every major secular doctrine has been interpreted so that it has implications that involve the rejection of such authority on particular occasions. The same is true of Islam. But the obvious inference is that every religion and every major secular doctrine can also be interpreted so that it’s compatible with civil authority, and compatible most or a lot of the time.

The vast majority of American Muslims interpret Islam in this latter “compatibilist” way. (The majority of them are garden-variety Democrats.) The relative minority who don’t accept Islam’s compatibility with “civil authority and its laws,” are, to be sure, a political, cultural, and security problem. But they aren’t a unique security problem, and we don’t need to target every adherent of the faith to deal with them. In case you haven’t noticed, Trump is focused on Muslims as such. He intends to target all of them. So it’s not to the point to haul out a version of Islam that no longer applies, to haul out centuries-old texts entirely irrelevant to our situation, and to wonder whether that’s why Trump is saying what he’s saying, and well, if so, maybe he’s got a point. That’s not why he’s saying what he’s saying, and he doesn’t have a point.  To write as Munger has is to ignore the obvious while creating mysteries where none exist.

Predictably, the BHL discussion devolves into claims like this:

Is there anything in American experience that could say that US government and laws cannot coexist with domestic radical Islam?

I suggest an experiment. Widely publicize and hold a Draw Muhammad Contest. Offer a $100,000 prize for the most insulting entry. Observe the results.

I’m sure the results would be pretty ugly. Of course, they’d be equally ugly if we widely publicized and held a Draw Fagin and/or Shylock Contest, offering a $100,000 prize for the most insulting entry, and permitting contestants to festoon their drawings with choice quotations from “On the Jewish Question,” “The Protocols of the Elders of Zion,” or Mein Kampf.  But even if all of the contestants of this would-be contest ended up dead at the hands of Jewish terrorists, it wouldn’t follow that we ought to embark on a witch hunt against “domestic radical Judaism.” Practically speaking, the implication would be that we’d have to exercise vigilance against these terrorists, and (without banning them outright) also have to question the wisdom of holding such contests. Exactly the same reasoning applies in the Muslim case.

Speaking of anti-Semitism, every passing day brings increasing confirmation of Edward Said’s much-derided but very prescient speculation that anti-Muslim bigotry (“Orientalism”) is a covert and modified form of anti-Semitism. He speaks in this passage of Arabs, but the point he’s making applies generally to Muslims, whether or not they’re of Arab ethnicity.

The transference of a popular anti-Semitic animus from a Jewish to an Arab target [is] made smoothly, since the figure [is] essentially the same. …

Thus the Arab is conceived of now as a shadow that dogs the Jew. In that shadow–because Arabs and Jews are Oriental Semites–can be placed whatever traditional, latent mistrust a Westerner feels toward the Orient. For the Jew of pre-Nazi Europe has bifurcated: what we have now is a Jewish hero, constructed of a reconstructed cult of the adventurer-pioneer-Orientalist…, and his creeping, mysteriously fearsome shadow, the Arab Oriental (Orientalism, p. 286).

Try that hypothesis on for size. I think it explains a lot about life in the Age of Trump, Cruz, and Carson.

In any case, witch hunt is a good description of what Trump is after. I realize that one isn’t apt to discern a witch hunt if one has never been accused of witchcraft, but take it from someone who has: Trump & Co are out hunting witches. It’d be nice for libertarians, of all people, to see that, and to deal with it with the seriousness it deserves.

——————————-

*For a book length argument, see Geoffrey Robertson QC, The Case of the Pope: Vatican Accountability for Human Rights Abuse (2010). Coming from the reverse political direction, many left-wing Catholics have insisted that illegal immigrants should enjoy legally incontestable sanctuary in Catholic churches. Regardless of whether one agrees or disagrees with the move, it’s a rejection of civil authority.

When I was a graduate student at Notre Dame, my mentor Alasdair MacIntyre used to make a special bragging point of Catholicism’s rejection of civil authority when it clashed with some claimed prerogative of the Church (e.g., the confidentiality of confession vs. the duty to report a crime to the police). He interpreted his liberal students’ indignant reaction to his views as evidence of their debt, and liberalism’s debt, to Hobbes’s anti-Catholicism (cf. Leviathan, Part IV).

Postscript, December 29, 2015: Having seen “Spotlight” since I wrote this post, I highly recommend it–for the acting, for the story it tells, and for being the rare movie to dramatize intellectual inquiry in an effective way. It also nicely focuses some of the issues discussed in the original post. The next time someone describes political Islam as being a unique threat to American liberty–there’s no Catholic equivalent of ISIS, Al Qaeda, or sharia, after all–it might be worth asking what Islamic institution has sexually violated as many children and done as much damage to the rule of law in the United States as the Catholic Church. Still, that’s not a reason for violating the rights of Catholics or of anyone else. It’s a reason for re-doubling our commitment to respecting and protecting rights on principle across the board.

Eleven years ago, by the way, I was writing online essays like this one. No one can legitimately accuse me of being uncritical of Islam or of events in the Islamic world. But my views haven’t changed. What’s changed are the double standards that surround us. From cutting Muslims a bit of slack in the name of multicultural tolerance, we now seem to have slid to the reverse extreme of demonizing Islam as the root of all evils in the contemporary world. A little objectivity and sense of balance would be nice.

Postscript, February 25, 2016: I know I’m beating a dead horse here, but I wish I’d said this in the first place. Munger had said:

Rather, Trump’s claim is the same as Locke’s:  any religion that ipso facto requires loyalty to a foreign power,  or requires that an honest believer reject the civil authority and its laws, is a political threat and an overt incitement to violence and revolution.

How is covert rejection of the civil authority and its laws an overt incitement to violence and revolution? That claim is self-contradictory.

On the other hand, if incitement is overt, and we assume that incitement is justly illegal, where is the puzzle involved in dealing with it? The solution is obvious: arrest all and only those engaged in the illegal activity.

Munger appears to avoid this dilemma by predicating “threat” and “incitement” not of agents but of “religion” as such. But since a religion is not an agent, its content only becomes threatening or inciting when an adherent makes it one. Threats and incitements that sit within the pages of some dusty tome can only sit there until someone makes use of them. If the sheer existence of claims is to be regarded as inciting or threatening, you may as well start legal proceedings against the books themselves.

Bottom line: in addition to all of the other problems Munger’s view faces, it faces a fatal and obvious dilemma. And yes, I’m done discussing it.

Si Fallor, Sum

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I covered Harry Frankfurt’s famous paper, “On Bullshit” in my ethics class this semester–ironically, at just the time when the Trump controversy over the celebration rumors broke out. Here was one of the quiz questions, in True/False format. The quiz was just intended to ensure that they’d done the reading.

  1. Near the end of the article, Frankfurt discusses the views of St. Augustine. According to Frankfurt, St. Augustine was the person who first coined the term “bullshit.” True or false?

Thirty percent of the class answered “true.”

Interestingly, this is one of those questions that didn’t really require having done the reading; a bit of E.D. Hirsch level cultural literacy would have done the trick. But when reading comprehension and cultural literacy fail….

The future of America, folks.

Hussein Ibish on Muslim Identity

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Hussein Ibish has an interesting piece in yesterday’s New York Times Opinion Pages, “Who Is a Muslim?” It takes off from and criticizes Donald Trump’s proposal to “bar entry to Muslims,” and then goes on to raise “two fundamental but largely unaddressed questions: Who and what is a ‘Muslim'”? I certainly agree with Ibish’s critique of Trump on moral as well as strictly logistical grounds. Moral issues aside, Ibish is right to say that “implementing such a policy would be completely impossible under the current circumstances,” for many of the reasons he gives. But I think he overcomplicates the answers to his “who and what” questions. The answers are in fact pretty straightforward.

In fact, the “who” and the “what” are closely related and nearly indistinguishable questions. The necessary and sufficient condition of belief in Islam is sincere avowal of the shahada, the profession of faith. (By “avowal,” I just mean explicit affirmation of the propositions involved in the shahada. It need not be avowed out loud to count as an avowal.) In Arabic, the shahada makes this assertion:

La illaha illal’llah, muhammad ar-rasullulah,

which works out to

There is no deity but the One God, and Muhammad is His Prophet.

Presumably, belief in the prophet entails belief in his prophecy, which is contained in the Qur’an. Arguably, it’s contained in other sources, like the ahadith (the supposedly verbatim sayings of the Prophet), sunna (the ‘way’ or actions of the Prophet as recorded in accredited sources), and ijma (the consensus of the Islamic community as a whole; roughly similar to the ancient Greek idea of an endoxon). But people disagree about all that and can legitimately do so while professing the shahada. You can consistently avow the existence of God and the prophecy of Muhammad, and consistently believe the contents of the Qur’an, while disputing the historicity of just about everything we know about the Prophet’s non-Qur’anic sayings and actions, and disputing the claims or existence of communal consensus.

Hussein mentions his own case, implying that it’s a difficult one:

My own case is instructive. I am a citizen of the United States but born in a Muslim-majority country (Lebanon), and, on my father’s side, into a clearly Muslim family. Moreover, my first name, Hussein, is one of a few in Arabic that is practically exclusive to Muslims (Arab Christians and Jews are not given this name).

While my father was a devout Sunni Muslim, my mother remains a devout Anglican Christian. So, despite my name and place of birth being clear indicators of a “Muslim origin,” the reality is more complex.

Moreover, I never embraced either religion, and had agnostic tendencies even as a child. Yet I identify with the Muslim-American community for social, cultural and political reasons. I am part of, and from, the Muslim community, but in terms of belief I am not and never have been a Muslim. So, how would I be categorized?

This doesn’t strike me as a hard question. He’s not a Muslim. Ibish may identify with the Muslim-American community for social, cultural, and political reasons, but those aren’t faith-based reasons. Because they aren’t, he’s in no sense a Muslim regardless of the degree of his identification with Muslims. You can’t just “identify with” God or the Prophet Muhammad; you either believe in God and Muhammad’s prophecy, or you don’t. If you don’t, you’re not a Muslim, end of story.

The scholar Marshall Hodgson made the crucial conceptual contribution here: he coined the term “Islamicate” precisely to distinguish things that are loosely “associated” with Islam from things intrinsic to the religion itself. Having a Muslim name; living in an “Islamic” country; having had a Muslim upbringing (or having Muslim parents); having an alief-based aversion to pork and/or alcohol; feeling a strange urge not to eat or drink during Ramadan; enthusiasm for qawwalis and naats; enjoying the sound of the call to prayer; eating sweets and expecting gifts on Eid; defending the Palestinian (or Kashmiri, or Kurdish, or…) cause; occasionally feeling the need to chop people’s heads off:  all of this, when divorced from sincere avowal of the shahada, is merely Islamicate. Expressed in a given person’s life it’s more of an ethical, political, or aesthetic-cultural thing than a religious one.

By contrast, believing in God, praying to God, fasting for God, paying zakat for God, doing the pilgrimage for God, fighting at God’s command, hoping for a reward in the afterlife, having real faith in the words of the Qur’an: all of this is Islamic, even if you’re doing it in English, in Peoria, Illinois, while wearing a bikini, and while feeling no particular sense of identification with the Muslim community (cf. Veena Malik).

In other words: You can be as Islamicate as you like and not be a Muslim, and you can lack almost all Islamicate attributes and be a devout Muslim. This is one thing that Islamic fundamentalists get half right (not that you have to be one to get it right): they firmly distinguish the Islamic from the merely Islamicate. Unfortunately, they can’t seem to grasp that a genuine Muslim is a genuine Muslim even if he or she doesn’t share your particular sectarian version of Islam. (These aggressively sectarian sorts of Muslims are known as takfiris–‘excommunicators’.)

Ibish continues:

Seen in this light, the range of Muslim beliefs and behaviors is more or less indistinguishable from that of the rest of humanity. The word “Muslim,” without any further qualification, and the word “person,” are, for practical purposes, synonymous. One doesn’t actually tell you anything meaningful beyond what is already suggested by the other.

I don’t buy that. How many non-Muslims wake up every day, before dawn, engage in ritual ablution, lay out a rug, face Mecca and pray–then do it again, four times a day? If that strikes you as a trivial difference, try making a resolution to get up every day before dawn for the rest of your life, wash, do ten jumping jacks while reciting your multiplication tables, and then go back to bed. See if you last a month. Trust me, a genuine commitment to Islamic prayer is not at all trivial. Only true devotion to something deity-like can rouse a person from bed at that hour over the course of a lifetime.

Commitment to five daily prayers obviously distinguishes Muslims from non-Muslims, and it’s just one of the five basic pillars of the faith. Add Ramadan, zakat, hajj, and the rest of sharia into the mix, and you have plenty of material by which to distinguish a devout and observant Muslim from a non-Muslim. It’s an open question how many Muslims are devout and observant, but every Muslim has the capacity for devotion and observance, and even that potentiality distinguishes Muslims from non-Muslims. No non-Muslim has to wonder how devoted or observant to Islam he or she ought to be. But every believing Muslim does.

I get what Ibish is trying to do, and at some level, I sympathize with it. He’s trying to normalize Muslims in American society, and make them seem less alien, exotic, sinister, bloodthirsty, violent, and intolerant than the stereotypes make them out to be. Fair enough: so far, I’m on board. But like many secular writers with impeccable Islamicate credentials, he also ends up trivializing the faith and effectively writing it into non-existence for liberal political purposes. I don’t say that as a believing or practicing Muslim (I’m neither), but as an apostate who remembers what it was like to be a believing and practicing Muslim. And there is something it’s like to a believing and practicing Muslim–something distinctive (and, to some, attractive). We can defend the rights and dignity of Muslims without having to deny that. Muslims aren’t “just like” non-Muslims. If they were, they wouldn’t be Muslims.

Ibish ends his piece by citing a new book by the recently deceased Pakistani scholar, Shahab Ahmed, What Is Islam? The Importance of Being Islamic. I haven’t read it. It sounds interesting, but it seems to me that reasoning of this sort has, under the influence of theorists like Edward Said, been taken too far:

Anyone interested in exploring the intricacies and complexities of Islam as a religion, philosophical system and social text should study the new book “What Is Islam?” by the Harvard professor Shahab Ahmed. Professor Ahmed — who died at the age of 48 shortly before this book, his life’s work, was published a few months ago — carefully guides the reader through a detailed critique of the numerous received understandings of Islam. In their place, he proposes a subtle but accessible new framework for apprehending what Islam is and has really been, in all its multiplicity and endless complexity.

I don’t dispute that Islam can be complicated. But we shouldn’t forget that it was also a faith meant to be believed and practiced by scholars and non-scholars alike. Its essential features can’t be so complicated as to elude the grasp of the ordinary believer. And its content can’t be so indeterminate or ephemeral as to blend without remainder into any old ethno-cultural background. If respect for diversity means anything at all, it means that we have to deal with the fact that Muslims really are different from the rest of us. Sometimes the differences are problematic, sometimes they’re edifying, and sometimes the differences fade into insignificance against the more fundamental similarities that Islam shares with Judaism and Christianity. But for better or worse, they’re there. They can’t be wished away.

Postscript, December 19, 2015: Hey, look–what perfect timing: a shahada story in the news! Here’s CNN,  The Washington Post, The New York Times, and Vice (the most tendentiously liberal of the four). And then there’s Breitbart, for editorializing and tendentiousness from the conservative direction.

One unresolved puzzle here is the exact source of the calligraphy lesson. It obviously didn’t originate with Cheryl LaPorte, the teacher who’s getting all the flak; she got it from a workbook variously described as World Geography or World Religions. Since textbook writers are presumptive experts in whatever subject they’re writing about, most teachers assume that it’s safe to rely on them. (So much for that assumption.) Despite showing us snippets from the book, few journalists seem interested in taking a look at the “primary text” to understand the calligraphy lesson in its original context. That’s what journalistic deadlines and pressure to keep up with the Joneses will do to a story.

The best commentary I saw was David A. Graham’s in The Atlantic, which saves me from having to write anything on the subject, since I agree with just about everything he says, and he says just about everything that needs saying.  In a paragraph:

No one comes out of this looking great. The assignment at Riverheads High School near Staunton—to copy calligraphy reading “There is no god but God, and Muhammad is the prophet of God”—seems well-intentioned but ill-considered. Parents may have been justified in questioning the assignment, but the level of fury isn’t commensurate with the offense, and it’s hard to imagine it happening with any other religion. And it seems like Superintendent Eric Bond, who made the right decision in refusing to fire Cheryl LaPorte, the teacher involved, overreacted by shuttering schools on Friday, especially as there were apparently no specific threats against the system of 10,500 students.

But go back to the primary text.

Killing In the Name Of: Jason Brennan on Abortion and Self-Defense (2 of 2)

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[This was originally a postscript to the preceding post, but that made the post cumbersomely long, so on second thought I’ve reposted it here.]

I’m not sure whether there’s an academic literature on abortion and vigilantism, but if there is, I’m not familiar with it. As it happens, there’s an online journalistic literature on the subject that’s worth reading.

One of the earlier items I found was a 1994 symposium in the magazine First Things, “Killing Abortionists,” intended as a response to the actions of Paul J. Hill, who was convicted of killing an abortion doctor and a security guard in Pensacola, Florida. Apparently, he came up with the following rationale for his action: “Whatever force is legitimate in defending a born child is legitimate in defending an unborn child.”

None of the symposiasts notices what seems to me the obvious problem with this axiom: contrary to first appearances, it doesn’t really tell us what force is legitimate in either case. Imagine that child-killing was legal and widely practiced in American society. How informative would it be to know that you could stop this ubiquitous child-killing by “whatever force is legitimate”? How does the quoted phrase tell you what force is legitimate? Suppose you had to shoot your child-killing neighbor. Should you shoot him? Now suppose you had to shoot your sister. Should you shoot her, too? While we’re at it, suppose you had to start a civil war. Should you start one?

It doesn’t really help here to say, “Well child killing is wrong, and if I saw a child being killed in the street, why, I’d rush to its rescue and kill its killer.” The problem is, you’re not confronting a child being killed in the street. You’re confronting a society of child killers. It’s not the same thing. We can’t equate one-shot and iterative violence, abstract from the differences between them, and treat them as though they were interchangeable. They’re not.

Much of the symposium is pointless and evasive; the two theorists’ responses (Hadley Arkes and Robert George) are particularly so. Though I don’t agree with any of it, the one response that seems to me entirely on point is the late Cardinal O’Connor’s. Whether you agree with his arguments or not, it’s obvious that they can’t be dispatched by a few thought-experimental invocations of what Batman would do. For one thing, for Batman to be helpful, we’d need to know what Batman thinks of the Principle of Double Effect. Despite a childhood of watching the show, I don’t know whether he does (did). (Does Batman ever intend to harm anyone? I leave it as an exercise.)

In a famous piece in The Atlantic (September 1995), George McKenna lays out what he calls “A Lincolnian Position” on abortion (which ends up being a stridently anti-Lockean position as well). No pro-choicer is wholeheartedly going to agree with the position McKenna takes, but he does a good job of explaining why opponents of abortion can consistently take a political rather than terrorist/vigilante approach to its containment or abolition.

Zac Alstin’s 2009 piece, “The Moral Tableau of Abortion,” makes the arguable but plausible point (also made in the First Things symposium) that mothers are more causally central to the production of abortions than abortionists. Mothers constitute the demand that generates the supply side of the abortion industry. As long as mothers want abortions, supply for them will arise, however covert; you can attack the supply side all you want, but unless you change the minds of would-be consumers on the demand side, you won’t get rid of abortion. Since you can’t kill mothers without killing fetuses, it makes more sense as a long-range strategy to convince mothers not to have abortions than either to kill abortionists or kill mothers-and-fetuses.

Though he doesn’t make the point explicitly, since Alstin rejects consequentialism (p. 56, left column, fifth paragraph), he has a rationale for rejecting the idea that the goal of the anti-abortion movement is what we might call fetus rescue-maximization (or minimizing the numbers of fetuses killed). It’s questionable whether a campaign of assassination actually realizes fetus rescue-maximization, but whether it does or doesn’t, fetus-rescue maximization is not the goal. Of course, given his deontic-sounding rejection of consequentialism, it’s not clear that Alstin would agree with the reasoning I employ in the original post, but my point is, Alstin’s argument suggests that Brennan’s conclusion is not as easily secured as he (Brennan) thinks. (Incidentally, Alstin’s piece reminds me that Brennan’s post has a precursor in this Slate column by William Saletan.)

And that brings us up to date. Some of the best coverage of Colorado Springs I’ve seen has been at Slate (well, best if you like Planned Parenthood, as I do–even though I currently have no practical use for it whatsoever, and even though I personally prefer the name “Planned Non-Parenthood”).

This piece by Saletan calls Republicans out for the double standard they employ when it comes to anti-abortion vs. Muslim terrorism. Try to imagine the reaction if someone had said this in response to the Fort Hood or San Bernardino attacks: “Violence begets violence! So tell Uncle Sam to stop the violence with those drones, or we’ll just have to shoot up some more American civilians”! And this piece discusses the connection–ahem, alleged connection–between anti-abortion rhetoric and incitement to violence.

My favorite tidbit is the revelation (to me) that Ted Cruz has accepted the endorsement of Operation Rescue president Troy Newman, “a man who has called for abortion providers to be executed.” He doesn’t seem to be suffering for it. Imagine my going to Gaza this summer and getting the endorsement of Khaled Meshal and Musa Abu Marzouq. I’m sure they’ve said equally blood-curdling things about Israelis. I mean, if Ted Cruz can get away with consorting with would-be murderers, why can’t I? But trust me–I can’t. And wouldn’t. And won’t.

Postscript, December 16, 2015: Headline from a story on p. A20 of today’s New York Times: “Colorado Springs Tries to Recover as Nation Moves On.”

Deb Walker, the executive director of Citizens Project, said she understood why some people might have felt relieved when many national news reporters left town. But she also worried that the city of more than 400,000 may have missed a chance to have tough conversations about topics like gun control, abortion clinic safety and women’s access to reproductive health care.

No point in having those pedestrian conversations when we can jack off to fantasies of this sort.

Meanwhile, from the (main) Republican debate:

Safety and fear have not loomed so powerfully over a debate, or an electorate, since the Sept. 11, 2001, attacks. But if the threat of terrorism has become the defining issue in the race, Republicans are sharply divided on the toughest and smartest strategies to prevent more attacks.

Well, at least if the attacks are initiated by Muslims.

“I promise you, the next time there is an attack on this country, the first thing people are going to want to know is, why didn’t we know about it and why didn’t we stop it?” Mr. Rubio said. “And the answer better not be, ‘Because we didn’t have access to records or information that would have allowed us to identify these killers before they attack.’ ”

The vague prior indications of an attack were roughly the same in the case of both Robert Dear and of the Malik/Farook duo. But in neither case was there literally probable cause to believe a crime was about to be committed (until the crime was imminent, of course). So what exactly is Rubio’s point? Does he think that people–or government officials–should start acting on hunches, whims, and fears? But then how to safeguard against idiocies of this sort? Or just overreactions to false alarms of this sort? The Obama Administration:

Josh Earnest, the White House press secretary, said in a briefing that the administration would not “second-guess the decisions that are made by local law enforcement officials in any community across the country” in responding to terror threats.

Why do people like Rubio think that their administrations will have predictive capacities that the last two administrations have lacked?

Killing in the Name Of: Jason Brennan on Abortion and Self-Defense (1 of 2)

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Jason Brennan has a post a few weeks back on abortion and self-defense (Nov. 30), written in the wake of the Planned Parenthood attack in Colorado Springs (Nov. 29). The point he makes is simple, and the argument he offers is, very narrowly construed, sound. But construe the conclusion slightly differently than he does, and the argument misses the point in an obvious way.

The claim in short is that if you think that abortion is murder, and its victims are innocent, you have the right to defend the innocent by force. If the force in question requires killing those who perform abortions, so be it. Brennan invokes a lot of “common law” reasoning to bolster the plausibility of the conditional*, but the appeal to common law is a dialectical fifth wheel that does no real work here. He’s just assuming what we all assume–that you can kill a killer.  After some thought-experimental invocations of superheroes, we reach the conclusion that if you believe that abortion is murder, it would be permissible for you to go around killing abortion providers.  Here’s the conclusion of the argument, put in the mouth of the would-be fetus defender:

“I will, if necessary (if there are no equally effective non-lethal means), kill any would-be child murders to stop them from killing children.” Again, this seems heroic, not wrongful.

Note the parenthetical. What we have here is a conditional claim whose antecedent involves another conditional. Let me re-phrase it slightly, without loss of authorial intention, but with a little gain in clarity:

If necessary, and if there are no equally effective non-lethal means, then kill those whom it’s necessary to kill in order to stop the killing.

Lots of modal claims going on there. Let’s rephrase once again:

If necessary, kill those it’s necessary to kill in order to stop the killing, but if it’s not necessary, do not do so.

What does “necessary” really mean here? I take it that “necessary” means “necessary for bringing about some end.” But the end is not plausibly construed as “bringing abortions down to zero, full stop, by all available means, regardless of any other normative considerations.” The end in question is some complex goal, e.g., a just society or the common good or whatever, where superordinate higher-order features of the goal regulate subordinate features, including strategies for achieving this or that political outcome.

So the anti-abortionist’s ultimate goal is not plausibly described as “do what’s necessary to stop the killing.” It’s “do what’s necessary to bring about the common good, stopping the killing in a way that’s compatible with bringing about the common good.” I’m pro-choice, but it seems to me that anti-abortionists (or pro-lifers or whatever we call them) are entitled to a plausible conception of post bellum considerations, no matter how militant they are about ending abortion. They don’t just want to end abortion, full stop. They want to live in a just society without abortion, and it may not be possible to do that if you try to end abortion by killing people. In any case, the two things–stop the killing and live in a just society without abortion–are not the same thing.

Suppose that abortion really is murder. In that case, killing abortionists would be one obvious means of stopping abortions, but killing would also likely have seriously adverse consequences. It might increase hostility for anti-abortionists to the point of instigating widespread persecution against them. It might even start a civil war. Further, it’s easier in talk than in practice to kill all and only the “right” people during a terrorist/vigilante campaign. Once the killing begins, the enterprise of killing is often overcome by some terrorist/vigilante equivalent of the fog of war, and the wrong people get killed with amazing frequency. Any of those outcomes could obtain, and any of them might end up being worse for the anti-abortion cause (much worse) than not killing abortion providers.

It’s hard to be precise about expected outcomes of this sort, so people reasonably disagree about them. Some people think that a campaign of killing would, all in, be good for the anti-abortion cause. Others disagree. Obviously, both the complexity of the calculations and the possibility of disagreement about them might help explain why even fervent anti-abortionists have a (disjunctive) principled reason for not going around killing abortionists. They may either think that doing so is self-defeating, or they might think that doing so might very well end up being self-defeating, and not worth risking, as long as there are relatively peaceful (or at least orderly) political means for achieving the same ends with fewer collateral damages.

In recent times, the history of the abortion controversy begins with a deceptively liberating case from the pro-choice perspective (Roe vs. Wade) and proceeds from there to a series of restrictions on the original Roe vs. Wade restrictions on abortion, so that abortion, though nominally legal in the U.S, is in many ways embattled and under siege. In other words, opponents of abortion rights have done a pretty creditable job of subverting the right to abortion by purely legal means. Of course, abortions do still take place, and on the anti-abortion view, those abortions are murder. But the question is whether a campaign of vigilante killing would have purchased more for them than the political-judicial campaign they’ve actually enacted. Hardly as obvious as Brennan’s argument suggests.

It’s an open question whether anti-abortionists could, by purely legal means, do a better job of subverting abortion rights than they could by killing abortionists. The United States ended slavery by warfare in 1865; Brazil ended slavery without warfare in 1888. Anti-abortionists could in principle plump for a Brazilian approach to the abolition of abortion on the grounds that while that approach would take longer, it might prove more counter-factually stable than a faster-acting but more violent approach. Arguably, violence would be counter-productive and self-defeating, possibly catastrophically so.

Since it makes no sense to enact a self-defeating strategy, and it’s highly risky to enact what could be (catastrophically) self-defeating, anti-abortionists need not worry that Brennan’s argument pushes them into wanton murder. Contrary to Brennan, “the” issue involved in the abortion debate is not just the moral status of abortion (though I agree that that’s the fundamental issue) but what to do about the fact that abortion is a complex issue that elicits widespread disagreement. In other words, the philosophical issue is not just the theoretical one of whether or not abortion is murder, but the practical one of what to do about the fact that certain ways of disagreeing about it are potentially murderous.

Now consider Brennan’s list of would-be objections to his argument:

There are a number of objections to this line of reasoning, including:

  1. It’s wrong to engage in vigilante justice.
  2. Batman must allow people to murder children because he has a duty to obey the law, and the law permits child murder.
  3. Batman must not kill the child-killers, but must instead only use peaceful means.
  4. Batman must not kill the child-killers, because it probably won’t work and won’t save any lives.
  5. Batman must not kill the child-killers, because they mean well and don’t think they’re doing anything wrong.
  6. Batman must not kill the child-killers, because the claim that “killing six-year-olds is wrongful murder” is controversial among reasonable people.
  7. Batman must not kill the child-killers, because the government or others might retaliate and do even worse things.

I think these objections are either implausible (e.g., 2 is absurd), or are at best mere elaborations of the necessity proviso of defense killing. (E.g., #4.)

Putting aside (4), Brennan is right to say that these are pretty pointless objections. Objection (4) is where the action is. (Construed a certain way, [4] might well entail [1]: vigilante justice might be wrong because it’s likely to be ineffective, and it’s irresponsible to engage in a political strategy that might very well backfire. But I think Brennan intends [1] to mean that vigilante justice is deontically wrong qua violation of the law, full stop. So I’ll ignore it.)

Brennan dismisses (4) as a “at best a mere elaboration…of the necessity proviso of defense killing.” Well, that’s one way of putting things, and not a literally false one, I suppose. But it’s very misleading: a “mere elaboration” of a proviso can also explain why the proviso cannot be enacted under foreseeable conditions, and (4) does just that. In other words, what Brennan calls a “at best a mere elaboration” ends up explaining why, once we leave the thought-experimental laboratory, his suggestion makes no sense in the real political world where it’s supposed to have application.

Digression: the same sort of “elaboration” is the strategy behind what’s come to be called “contingent pacifism” in the just war literature; contingent pacifism is the strategy of justifying de facto pacifism by construing just war provisos in such a way that they can almost never be satisfied in the real world. This literature suggests that depending on how one construes its claims, just war theory (and its doctrine of necessity) can lead either to very hawkish policy prescriptions or to pacifism. But if the same theory leads different theorists to contrary outcomes with respect to the same issue, the differences between the different applications of the theory–the contingencies in question–can hardly be philosophically trivial. If my version of a doctrine leads me to wage war, and your version of the same doctrine prohibits you from ever going to war, it makes no sense to say, “Don’t worry, we’re agreeing on the theory; we just disagree on the contingencies.” In this case, the disagreement on the contingencies could mean the difference between a decade of war and a decade of peace. Conceptualizing that difference is a paradigmatically philosophical task.

Back to abortion: Not killing abortionists because you could get arrested, and/or because it would undermine the anti-abortionist cause, and/or because the collateral damages would be too high, and/or because it could start a civil war are not trivial considerations, whether “morally” or “practically.” From the first person perspective of an agent deciding what to do–not what to write in a blog post–these are all considerations of paramount importance. They make the difference between going ahead and killing someone and deciding not to. So a reader could grant 99.9999% of Brennan’s argument in principle, but still think that the 0.00001 remainder makes a crucial and theoretically significant difference to political practice. And he might insist that Brennan’s way of rendering the argument reveals a blind spot in his thinking about the relation between theory and practice.

I’d put the latter issue like this: Taken as an academic exercise, with all qualifications duly noted, and abstracting entirely from what would be necessary to enact his advice in practice, Brennan’s argument is perfectly sound. Taken as real-world political advice, however, and factoring in all relevant considerations–including prudential considerations about expected consequences–Brennan’s advice is myopic and insane. It seems to me that when the theoretical version of a prescriptive argument ends up sound, but the practical version of it is insane, we’re obliged to think harder about the relation between arguments, theory, and practice.

At a minimum, I think we’re obliged to note the huge gap that obtains between theoretical prescriptions and practical ones. It sounds oxymoronic, but it isn’t. A theoretical prescription is a prescription offered ex hypothesi, as an exercise in deontic logic, without pretending to guide real-life practice: it notes a normative entailment; it doesn’t claim to tell people what to do. A practical prescription is a prescription intended to guide practice, all things considered; it doesn’t just note an entailment, but tells us, all in, what to do.** Put differently, there is a huge difference between saying, “Your views entail that you should go out and kill people–but don’t actually do that, for God’s sake, I’m only pointing out where your views lead!” and saying, “Your views entail that you should go out and kill people–and if that’s where your views lead, so be it. So get your gun and hop to it!” Brennan is saying the former (I think), but you could be excused for interpreting him as saying the latter. The lesson here is paradox-like but not paradoxical:  A prescriptive argument can be sound and yet defective as advice.

The underlying disagreement here, it seems to me, is a version of Hobbes versus Aristotle on prudence. Aristotle takes phronesis (‘prudence’) to be an intellectual virtue that guides individual, first-personal decisions. Despite its practical, individualized, contextualized, consequence-sensitive, first-personal nature, Aristotle insists that phronesis a legitimate object of philosophical inquiry and a legitimate source of knowledge (Nicomachean Ethics, VI.5-13). A view like this puts a certain premium on the nuts and bolts of deliberation, from acceptance of the premises that motivate an action down to the details of what ultimately produces the action in the real world. On an Aristotelian view, what’s philosophically interesting is not just the abstract schema that the agent accepts but how the agent translates that schema into the particularities of a particular action. “Translating a schema into the particularities of a particular action” is the work of phronesis. 

Hobbes denies that prudence so conceived has any significant epistemic value (Leviathan, IV.46.1-6):

… we are not to account as any part thereof, that originall knowledge called Experience, in which consisteth Prudence: Because it is not attained by Reasoning, but found as well in Brute Beasts, as in Man; and is but a Memory of successions of events in times past, wherein the omission of every little circumstance altering the effect, frustrateth the expectation of the most Prudent: whereas nothing is produced by Reasoning aright, but generall, eternall, and immutable Truth.

Prudence, in short, is unscientific. It yields contingent, changeable, contextualized truths, neither important enough nor counterfactually stable enough nor wide enough in scope to count as genuine philosophical knowledge. How the agent translates an abstract schema into action is philosophically uninteresting. What matters is the schema–the model– itself. From this perspective, an inquiry into what the agent is, all things considered, to do seems too fine-grained, variable, and messy to be a genuinely philosophical or genuinely worthwhile activity.

Contemporary Hobbesians (as I’m thinking of them) prize thought-experimentation and social science at the expense of mere first-hand experience, and at the expense of an account of the requirements of first-personal deliberation (i.e., prudence). First-personal agents disappear from view, as do their deliberations and deliberative needs. From this perspective, the mere prudence required for intelligent political action is unworthy of philosophical inquiry. Anarchist Hobbesians have a plausible-looking rationale for this insistence: on their view, politics is an unworthy occupation, so it stands to reason that the epistemic virtues it require are themselves unworthy of sustained reflection.***

As I see it, one of the most valuable contributions of neo-Aristotelian theorizing (in the Nussbaumian mode) is to put social science and thought-experimentation in its place, and insist on the first-personal perspective of the agent and her deliberations–along with history, psychology, and common sense. On a view like this, it isn’t enough to know that if abortion is murder, and self-defense is justified, you can infer that defensive killing would be justified to save fetuses from murder. You need to know whether, even if that argument is sound, you should actually be out killing people. If so, you need to know whom to kill, when and how; how to prevent predictable disasters that arise when you start killing people; and how the killing enterprise fits into the larger aim of achieving the common good. That sounds like “mere strategy” to some people, but on an Aristotelian view, it’s precisely the kind of knowledge that the just and wise agent has, and that the political philosopher studies in order to grasp the nature of justice and wisdom.

Anyway, thought experiments and social science are of some, but relatively little value here. Eventually, thought experiments run out of prescriptive steam for the obvious reason that life isn’t an experiment. Social science runs out of useful things to say because we can’t do experiments on novel courses of action that no one has yet tried–but we can’t refuse to do novel things because there’s no existing social scientific literature about them, either. A virtue like phronesis is indispensable here, both for deliberative agents and for theorists theorizing about what such agents do. If you’re going to do something–e.g., engage in political action–you have to know how to do it, and the only way to know how to do something is to have done it (or have rehearsed doing something as much like it as possible). You need the kind of knowledge that Hobbes denigrates and that our neo-Hobbesians ignore. 

Bottom line: even if you think abortion is murder, don’t do what Jason Brennan tells you. (PS: It’s not really relevant to my argument, but in case you’re wondering, I’m pro-choice on the abortion issue. I believe in abortion on demand from the moment of conception until birth, with some moral reservations about late abortion, while rejecting legal restrictions on it.)

*I corrected this sentence. It originally said, “antecedent of the conditional,” but what I meant was that Brennan invokes common law to bolster the plausibility of the conditional as such.

**I reworded the latter clause after posting. The previous version (which I’ve now forgotten) was wordier and somewhat unclear.

***”Anarchist Hobbesian” may sound like a contradiction in terms, but I don’t think it is. It could mean (a) an anarchist whose meta-philosophical views map onto Hobbes’s and/or (b) an anarchist whose account of political authority maps onto Hobbes’s, but who infers on that basis that no states have authority.

“Radicalisation”

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Is it too much to ask these days for conceptual clarity on a widely used term? This is the nth news item I’ve read in the past week or so using the term ‘radicalisation’ without providing the slightest hint of what it means. What is radicalisation? What are its contours? Is it a political category? Is it a socio-political category? What is it to undergo radicalisation? Is it a surrogate for some clinical term, and if so can it be eliminated in favour of a clinical term with a psychiatric pedigree? Does it refer to a state of mind or a process? If it is a process is it an exclusively external process whereby the subject of radicalisation is radicalised by someone else? Or is it an internal process whereby the subject of radicalisation radicalises himself? As someone who does quite a bit of work in a custodial institution, I’d like to do my part but can’t wrap my head around what the damn term means or how in a practical sense I’m supposed to apply it (or to whom it applies). As a dude in his early 30s, I’d like to be able to tell whether the smile I received on Wednesday from some hijab clad Veena Malik look-alike was a sign I still got it or whether it was a subtle invitation to commit a spousal jihad attack. Without any clarity on radicalisation there’s no way to know.

P.S.: You’ll have to excuse the British spelling. When in Rome…

P.P.S.: I just realised I left out the title. My bad.

Tim Sandefur on Daniel Kaufman, RIP

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I just happened to read Tim Sandefur’s memorial for his brother Daniel Kaufman, killed in the San Bernardino attack. I won’t try to summarize or contextualize; just read it for yourself. Please accept my heartfelt condolences, Tim.

Music, when soft voices die,
Vibrates in the memory—
Odours, when sweet violets sicken,
Live within the sense they quicken.

 

   Rose leaves, when the rose is dead,
Are heaped for the belovèd’s bed;
And so thy thoughts, when thou art gone,
Love itself shall slumber on.
–Percy Byshe Shelley