Death of a feature

I recently heard from an old friend who hates blogs:

Blogges are the work of the Anti-Christ. Most of them, anyway, yours saves itself by having something resembling a focus that cannot actually be described as "another misinformed voter's partisan thoughts on the War and the [Insert hated party here]."

This was from an old friend, mind you, so I can't be sure whether the exemption to the general anatehma was intended to save my feelings. But, in any case, I will no longer qualify for it, since I am going to end the feature that gives this blog such focus as it has. There will be no more snarky Supreme Court of Canada reviews.

For those of you hurting at this news, I can only hint that there will be a new participant on Osgoode's The Court blog whose style may seem strangely familiar. In accordance with Osgoode's strict rules on the subject, this person will have to use his real name, and will be expected to use a spell checker and refrain from accusing the Supreme Court of treason.

Misinformed thoughts on the War and partisan politics will continue to be found here.

John Wiley & Sons reaches for the hammer

Via Razib, I see that John Wiley & Sons is engaging in some heavy-handed (and dubious) copyright enforcement against a science blogger.

It seems that Wiley's Journal of the Science of Food and Agriculture published some taxpayer-financed research showing that mixing alcohol (and some other less interesting substances) with fruit may improve its shelf life and antioxidant qualities. Shelley Batts, one of Seed's collection of bloggers, published a chart from the article in the original version of this post.

The result was this letter:

Re: Antioxidants in Berries Increased by Ethanol (but Are Daiquiris Healthy?) by Shelly Bats

http://scienceblogs.com/retrospectacle/2007/04/antioxidants_in_berries_increa.php


The above article contains copyrighted material in the form of a table and graphs taken from a recently published paper in the Journal of the Science of Food and Agriculture. If these figures are not removed immediately, lawyers from John Wiley & Sons will contact you with further action.

I'm not really up on intellectual property law at all, let alone American copyright law, and I hesitate to opine as to what the law is (as opposed to what it would be if I had the dictatorial powers necessary to straighten things out.) But even if Wiley is within its legal rights, it should have to pay something in its reputation for this. The whole academic publications business survives on a business model of nothing but path dependence and inertia. To heck with them.

Update: Wiley has folded, blaming the misunderstanding on a junior staffer.

Sebastian Alexander 1962-2007

A long-time reader of this website pens an obituary for an old friend of the Pithlord who died earlier this year.

Update: Melanie has few thoughts and memories of Sebastian.

Update 2: Fixed link for Lyle Neff's obit.

Recycling

I want to recycle a couple of comments from this thread. Some, but probably not all, typos have been edited.

First, this one:

Would Dicey and Blackstone have agreed that there are “unwritten postulates that form the very foundation of the [British] Constitution”? Yes. Would they say these principles were binding on both Parliament and the courts? Yes. Would that imply that the courts could invalidate a statute passed by Parliament if the courts thought the statute contrary to those principles? No.

A rule can be binding on an agent either internally or externally. The Supreme Court is “bound” to apply a hierarchy of relevant legal sources when it decides a case. But if a litigant thinks they have failed to do so, she is out of luck — there is no other body that she can appeal to. They are not final because they are infallible — they are infallible because they are final.

If we are to have a closed system of positive law, at least one body must be final in this sense. In the British constitution, when it comes to the enactment of laws, that body is the Queen-in-Parliament. Blackstone and Dicey would both have insisted that the Queen-in-Parliament is obliged to follow the unwritten postulates of the constitution, but that obligation is internally binding. By enacting a statute, the Queen-in-Parliament is coming to a judgment that the statute is consistent with the unwritten constitution, and that judgment is not reviewable.

There is no point complaining about the existence of a body whose judgment is not reviewable. That’s just life. Either Parliament’s judgment is unreviewable or the final court of appeal’s judgment is unreviewable. For Dicey and Blackstone, it was preferable that the unreviewable body be Parliament.

Before Confederation, the same system applied to the colonies, except that imperial statutes were paramount over colonial ones. So the courts had the power to consider a colonial statute of no force and effect to the extent it conflicted with the imperial statute. That was the basis of judicial review under the BNA Act. It was, in principle, a corollary of the sovereignty of (the imperial) Parliament. Subject to the BNA Act, though, the federal and provincial legislatures are sovereign within their sphere. Again, they inherit unwritten postulates from Britain — but they are the final interpreter of how those postulates apply to new legislation. On the other hand (and especially once reservation and disallowance fall into disuse), the courts are the final interpreters of the imperial statutes which make up the written constitution.

The English courts have always referred to the unwritten constitution in interpreting legislation or disciplining executive action, and the Canadian courts followed them. It’s just that they accepted that their judgment of what the unwritten constitution might require was bound by the clear intent of Parliament, just as lower courts are bound by the precedents of higher courts.

Eventually we get to 1981-1982. In the Patriation Reference, 7 out of 9 judges made it perfectly clear that only the written constitution could legally restrict legislative sovereignty. The 1982 deal sets out exactly what texts count as the written constitution, and how they may be amended. As a critical part of the final deal, judicial review under much of the written constitution is subject to the notwithstanding clause. Unwritten principles continue to exist, but they play the role they have under the British and then Canadian constitution — used by the courts in statutory interpretation and administrative law, binding internally on the legislatures in making enactments.

Is the Manitoba Language Rights case inconsistent with this (I would argue universal) understanding? I don’t think so, because while it involved reference to the “rule of law” as a value, it did not purport to make it an independent basis for the courts to strike down any statutes.

On the other hand, the Provincial Court Judges case is revolutionary because it places the Court, rather than Parliament and the legislatures, as the final interpreter of the unwritten constitution. And it does so by confusing the issue of being internally bound by a rule and being externally bound by it. The Secession Reference compounds things by using “unwritten principles” to overturn the very amending formula set out in Part V.

And this one:

A practical lawyer might wonder whether there is any point criticizing decade-old precedents. I’d respond with T.S. Eliot’s observation that there are no lost causes because there are no gained ones. If we are in for a period of extended Conservative rule (and I suspect we are), we are going to have a different kind of judicial politics, more like that in the US. Partisan affiliation will become less important for patronage reasons, and more important for ideological reasons. Anyone who observes Canadian constitutional law will see waves of advance and retreat for the cause of judicial supremacy. The Motor Vehicle Act Reference is ultimately followed by Rodriguez (but then by Chaoulli). Oakes leads to Edward Books, Andrews to Law, and Provincial Court Judges’ Reference to Imperial Tobacco. Who knows what will happen with Christie? Whatever happens, the issue of the underlying legitimacy of Lamer’s coup is unlikely to die.

Anyway, in this country, we inherit the tradition of the United Empire Loyalists, and should not be afraid of being identified with lost causes.

I don’t think “incrementalism” and “originalism” are necessarily in conflict, since I think of both –at least in their defensible forms — as counsels of caution, rather than decision rules that will render determinate answers. I wouldn’t start with either, but with the question of the legitimacy of the judicial role. The need for judges arises out of the social need for a definite answer to legal conflicts. That’s the source of the obiter/ratio distinction, as well as of the virtue of incrementalism. Judges act with authority to the extent they say what is necessary to resolve a specific legal dispute. (References complicate things, but this is already too long for a comment, so I’m not going to pursue that point.) They should pick the narrowest (least controversial, least disruptive of settled expectations) grounds to fulfill this function. To the extent possible, they shouldn’t comment on anything else, but if they do, they are no longer acting within their authority.

Originalism, in a defensible sense, is just respect for the deal reached by the principals. Part of that deal, no doubt, was to give the courts a large amount of discretion and power. But a court misues its finality to seize more power than it was granted.

I suppose if time makes a revolutionary act a sufficiently settled part of the social order, it becomes pointless to oppose it. Most days, I have given up on trying to restore the Jacobite line, for example. I don’t think we are there yet with “unwritten principles.”

He Makes It Look as Easy as Pi

Nathan Whitlock has posted a hilarious takedown of Yann Martel's incredibly irritating defence of federal arts subsidies in the Globe a week ago.

Is There an Ontologist in the House? Or, how I learned to stop worrying and accepted Lamer as my personal Galileo

The Pithlord may maintain a chin-pulling ambivalence about the merits of the Charter. But he becomes an unhinged, screeching partisan in opposition to the Supreme Court of Canada's post-1997 "discovery" that it can invalidate legislation on the basis of "unwritten principles" not found in the actual constitutional text.

Over at The Court, the Pithlord has been bitching about the fact that the Supreme Court of Canada changed the fundamental locus of sovereignty in our system without any of 35 the lawyers appearing before them even arguing that this was possible. I was then accused by a David Cheifetz of making a fallacious argument from authority:

So now the validity of an argument - either the procedural validity of the analysis or the substantive content of the premises - may be supported by counting the number of apparent experts who are prepared to agree it is right?

Do tell what school of (il)logic teaches that.

It follows from your assertion that that when most of the people on the planet believed the earth was flat, it was correct to say that it was flat. Or would you say we don’t have to count them because they weren’t experts.

The thread after that focuses on the merits of the Provincial Court Judges' Reference and the ethics of posting pseudonymously. Both are interesting issues, worthy of further discussion. But if I am ever going to crack the two digit mark in AdSense revenue, I am going to have to get better at giving the people, especially the critical veteran demographic, what they want. And what they want down at the Legion, I am told, is more post-structuralism. Fortunately, Mr. Cheifitz's question does raise some interesting issues about the ontological status of legal propositions, so I can easily segue into the relationship between power and knowledge,

Is it really fallacious to conclude from the fact that all or almost all experts with an opinion on a point of law believe P to be true that P is in fact true? A cartoon post-structuralist would say that about the shape of the earth or the number of planets in the solar system. In fact, a real post-structuralist would agree that some propositions about astronomy are true and others false, but would say that the development of astronomy as a discipline with epistemic criteria is (a) necessary for there to be astronomical propositions that could be true or false and (b) not itself the kind of thing that can be true or false. And our real post-structuralist would point out that the question of how many planets there are in the solar system depends critically on what counts as a planet, and that is a matter of stipulation and therefore politics. But this is the Internet, and we certainly aren't supposed to be fair to post-structuralists on the Internet.

Even if we assume a naive realist account of truth as "out there" and even if we were talking about scientific propositions, I still wonder if the argument from authority is really fallacious. After all, courts rely on the "consensus of the experts" all the time. Isn't that just the rational thing to do when the acquisition of knowledge is necessarily specialized? The fact that the relevant experts all think P may not prove that P is true, but it should move you to revise your Bayesian priors upward somewhat.

Nonetheless, and all caveats aside, I suppose that we all agree that Galileo was right that Jupiter had moons and everyone else was wrong, including the experts in the Holy Inquisition. It might not have been wise to have said so, but it was still the facts.

But does this mean that when Chief Justice Lamer "discovered" that he had the power to overturn statutes based on unwritten principles, contrary to what the legal profession and judiciary as a whole had thought from the seventeenth century on, he was analogous to Galileo. Could he have just seen further, understood better than the staid conformists who came before?

I think most of us would say, "No. That can't be. Law, unlike astronomy, really is a social construct. If all the lawyers think that legislatures are supreme within the bounds of the written constitution, then that must be the law." When it comes to law, we are all Foucauldians -- knowledge and power, in the end, amount to the same thing. So Lamer might have had the ability to change the constitution, but he couldn't really discover that it was always as only he knew it to be. The implication would be that Mr. Cheifetz's reproach was unjustified. It does follow from the fact that all the lawyers arguing before the Supreme Court in 1997 assumed that they would only invalidate legislation for violating the written constitution, and that they were representative of their profession in this respect, that this was then the law. If the law is different now, it is not that some new truth has been discovered, but that some new power has been won (and therefore lost).

All of this is true enough. But legal advocacy is nonetheless structured around the idea that there IS a law. "Out there", just like the starry heavens above. And, to a suprising extent, this assumption works. The big question is "why" and the answer, I am pretty sure, will come from evolutionary biology.



Photo of "Galileo" by beanic. Photo credit for portrait of former Chief Justice Lamer Phillipe Landreville, Supreme Court of Canada Collection.

Can the US "lose" the Iraq war?

Senate Majority Leader Harry Reid got himself into trouble with the usual suspects by saying that the Iraq war has already been lost. Ross Douthat takes note of their reaction and asks whether there are any conceivable situation in which these people would admit a loss.

This may be one of those occasions where the insane people are right, and the sane ones -- like Douthat and Reid -- are wrong. The US really cannot "lose" the Iraq war, for the same reason it can't win. Victory and loss alike require some realizable/frustratable set of political goals. These are precisely what are lacking in Iraq.

Certainly, the US can, if it is prepared to expend the resources, prevent an unfriendly government from coming to power in Baghdad. But it cannot -- without a political settlement beyond its ability to broker -- create an effective state there, let alone the absurd neocon vision of a pro-Israel democracy. Moreover, by any reasonable metric of national interest, an unfriendly government in Baghdad would represent a huge improvement from the point-of-view of the US on the status quo.

Americans don't like defeatists. Since "victory" and "defeat" are equally category errors when applied to Iraq, Reid would be better off saying that the US has already won and it is time for the boys and girls to come home.

Double Doubles, Doughnuts and Doctorates

The Guardian makes fun of a York grad student who has finished his dissertation on the impact of doughnuts on Canadian culture. His family and friends are just relieved it's over.

Actually, I suspect the new Dr. Penfold's work should be seriously considered by political scientists. In the last election, the Tories finally closed their Canadian-icon-gap with the Liberals with the hoky image of Harper as hockey-dad-with-Timbits. Since the Tories (and, even more, the Reform/Alliance) have long been tarred with a vaguely treasonous Yankee-lover quality,* this probably won the election for them.



*Who was the genius who thought of the "brain drain" as a good electoral issue. It basically amounts to telling the electorate that they are too stupid to make it in the States.

So, do I pay up?

Last February, your host made the following foolish bet with Scott Lemieux

Sure. A bottle of Canadian wine: you name the vintage. I win if a majority strike some or all of the statute down on federalism grounds. You win if a majority say the statute is within the Commerce power. Nobody wins if they avoid it because there is still a majority for Carhart (I don't think there is, but you don't seem to either.)

The SCOTUS ruled yesterday dismissing the challenge to the Federal "Partial Birth" Abortion statute. Clearly, therefore, I don't win, but it isn't quite so clear whether I lose. Ilya Solmin seems to think that there could be five votes against the statute on federalism grounds "at least in some applications."

Now, I know that a debt of honour really should be one's first priority. Unfortunately, I am working on a really tight deadline, and I haven't had a chance to read the decision. From scanning the blog commentary, it seems that Kennedy has given himself (and, therefore, were I inclined to take it, me) a lot of wiggle room. Does Scott win or nobody?

And, yes, there will be no Baby Duck...

Happy Twenty-fifth, Charter of Rights! Now Get Over Yourself

We might have been better off without it. We could (and without Trudeau probably would) have patriated with just an amending formula, and maybe a strengthened statutory Bill of Rights.

The direst warnings of its opponents haven't come true. But the criminal justice system is more procedurally overwrought. Constitutional doctrine has never become predictible and legal; it still comes down to a large extent to whether five judges think the law wise. And the major social issue facing Canada -- the condition of aboriginal people -- has been diverted from education, health and urban issues into a neverending attempt to parse the meanderings of Antonio Lamer to the benefit of lawyers and consultants. Speech is freer, but this has a lot more to do with technology than the Charter. We probably are more Americanized and more centralized. And, of course, the lack of consent from Quebec put us through years of turmoil and almost destroyed the country.

Still, I'm not totally agin' it. The ideas that there are duties limiting the authority of our governors (ss. 2-34), and that all rights are limited (s.1) are good ones. The notwithstanding clause is an ingenious device. Judicial review has done some harm and some good, but it does emphasize the need to scrutinize limits on liberty.

I'm not entirely impresed by the "counter-majoritarian" difficulty because I tend to think a polity needs to mix aristocratic and democratic elements in its system of government. Both the people and the elites can make mistakes. The fundamental problem that democratic opponents of the Charter face is that the court maintains its popularity. If it didn't, the notwithstanding clause would probably not even be necessary, since there are so many other ways to frustrate judicial decisions. But if it is necessary, it exists.

So long as affirmative remedies are limited (and that is a precarious "so long"), then the Charter is unlikely to do much damage. It provides an elite veto -- one that will be rarely exercised. But it allows for a chamber of "sober, second thought," which the Senate has never been able to fulfill.

A coherent right-wing response to the Charter has never developed in this country. Originalism is unattractive, since the original intenders were Trudeau and Chrétien, if not Barry Strayer and LEAF. The right generally longs for the days of Parliamentary supremacy, but opportunistically abandons that preference when a decision like Chaoulli comes along.

The one thing I most would like to see is the rehabilitation of the "notwithstanding clause." It is in many ways the most Canadian part of the Charter, and it should be used more often.

Power-Knowledge: Legal Academics and the Charter

In my previous post, I warned the Chief Justice --who is promoting the idea of educating Canadians about their constitution -- that there may be an inverse relationship between knowledge of the Charter and support for it. Andy makes this interesting comment in response:

My view has always been that the Charter was cooked up under pressure from legal academics who were envious of the starring role their colleagues played in U.S. political discourse. Having started law school in 1987, just as the first Supreme Court Charter decisions were being handed down (I can well remember the shrieks of joy when our crim prof walked into class bearing glad tidings about R v Morgentaler), I can attest to the palpable sense of excitement among the faculty that they could now zip through the legalistic "federalism/BNA Act" parts of the constitutional law course in a couple of months while spending the remaining six months on U.S. style Charter casuistry.

So are academic experts on constitutional law the skeptics or the vanguard of the "Court party"? Well, it depends.

Love it or hate it, it's certainly true that the Charter makes Canadian constitutional law courses more interesting. Pretty much anyone would rather talk about abortion and euthanasia than egg marketing boards and the taxation of potash. To the extent a legal academic thinks in terms of power and status outside the ivory tower, the Charter is a pretty tempting object of esteem. Mandel reports that a prominent feminist organization actually lobbied Peter Hogg about the contents of his chapter on equality rights in his ConLaw textbook. But then it is also more fun to attack judicial decisions than celebrate them. So where do people end up?

Legal academics are a curiously hybrid sub-profession. Traditionally, they considered themselves part of the legal profession, and, to the extent the profession likes them, they continue to have more access to power and occasional billing opportunities than most SSH academics could imagine. However, over time, status in the legal academic world has increasingly become based on the same considerations that exist in the rest of the university, rather than the kind of things the profession values. That's led to a lot of tension, and duplication of legal education by the profession.

The result is that legal academics are divided between those comfortable with Bay Street and Wellington Street, and those who are engaged in a different, more academic, status game. The former dominate the University of Toronto law school; the latter are a bit more common at Osgoode.

My own experience at U of T came half a decade after Andy's. I can confirm that all the professors there were plus royaliste que le roi in their support of aggressive judicial review under the Charter. They only differed in how much plus royaliste they were. Those most likely to actually become judges could understand why the Red Nine did not invalidate every law that was presented before them; the others not so much.

By the time I was there, the mood was a bit sourer than Andy recounts. The glory days of Singh and Morgentaler had passed -- we were clearly in the age of bronze. I have no idea what the mood is like now.

Postcript: In the course of researching this post, I found out that the University of Toronto law faculty have a blog. Unfortunately, it sucks.

The Pointlessness of Election Result Bans

Inequality of information is something the Red Nine are just going to have to live with. We already knew that any motivated British Columbian who wants the Nova Scotia election results before the polls close in the west will be able to get them. But I thought that at least Big Media would be temporarily silenced.

But even that seems unlikely. Le Monde has engaged in the device of "reporting the controversy" by linking to the bloggers who will defy France's law by releasing the results of the first round of the presidential election. Expect Canadian imitators.

Charter propaganda in the schools?

As the legal profession gears up for celebrating 25 years of the Charter of Rights,* the Chief Justice has called for teaching constitutional law as a mandatory subject in the "schools and high schools":

[Chief Justice McLachlin] told a Toronto Charter conference that polls and surveys have revealed a disturbing ignorance about how judges make decisions, and the extent to which they can override Parliament and provincial legislatures.

"Canadians don't understand the Charter," Chief Justice McLachlin said. "If we want the Charter to retain the relatively high rate of approval it has been enjoying, we should worry that Canadians know so little about the details.

The Chief is a very intelligent woman, but she fails to consider the obvious inference from the surveys she refers to. Canadians like the Charter and know very little about it. It may be that these facts are correlated. Basically, Charter critics in English Canada consist solely of evangelical Protestants, the odd conservative Catholic, and constitutional experts. Reading a lot of constitutional decisions and thnking about the counter-majoritarian difficulty tends to promote a certain skepticism. Normal people, on the other hand, just think rights are a good thing and we should have more of them. Individual decisions -- especially in criminal law -- are very occasionally controversial, but if there is a real populist groundswell, it is against lenient sentencing, not the Charter.

But more realistically, McLachlin has little to fear from the kind of indoctrination the public schools will doubtless engage in on the subject. It will doubtless create a mild hostility towards something so boring -- rather similar to what most products of the Canadian school system bear towards Margaret Laurence -- but when pollsters come around, most people will recall that the Charter is one of those things they are supposed to be in favour of. The numerically larger categories of dissidents will doubtless be home schooled anyway.


*The actual birthday is next Tuesday, and I'll have a celebratory post, I promise.

I wish I was better at coming up with titles for blog posts

Because if I were, I could compete with Akrasia's "You Damn Dirty...MORAL...Apes". But since I know I'm outclassed, I am instead going to see if I can drag him out on the substance of his post.

Anyone even slightly into popular science has noticed a lot of talk recently about apparently "moral" behaviour among great apes (along with shockingly immoral and treacherous stuff too). Akrasia cites a New York Times piece on Frans de Waal, and comments:

Boringly, the author initially seems to imply that the evolutionary origins of human morality mean serious trouble for moral philosophers. And while one of the main subjects of the piece -- primatologist Frans de Waal -- seems to cling to a rather naïve understanding of the relation between empirical investigation into the emotional bases of moral agency and critical philosophical analysis of moral claims (or, to put it in rather quaint terms, the relation between ‘is’ and ‘ought’) [...]

He promises more, but so far has not delivered (and with the possible exception of Larison, none of us are without that particular sin). I thought I'd try to provoke him with my own naive thoughts.

I doubt Akrasia would deny the potential importance of this work for moral psychology, as opposed to moral philosophy. It would be significant if our capacity for formulating moral beliefs and judgments is an adaptation, since this would mean that its features could be explained by the selection benefits they gave our ancestors. Moreover, if we share some moral capacities with great apes, then we share even more with other humans, including those in other cultures and other historical periods. That's significant because it undermines a radical historicism about moral opinion. In jurisprudence, de Waal's findings tend to give support to people who look for universal principles across legal systems, against those who think everything is culturally relative..

The real question is the relationship between moral philosophy (critical reflection on what we believe about what we should do) and moral psychology (empirical inquiry into what we believe about what we should do). Akrasia seems to police that boundary using a meta-normative/positive distinction. In other words, moral philosophy (in its metaethical rather than applied form) is about what we should believe about what we should do, while moral psychology is about what we do believe about what we should do.

One problem with this approach is that it would place a lot of the tradition of moral philosophy on the side of moral psychology. Andy can give me trouble if I'm wrong, but Hume would seem to be more interested in what we do feel about moral matters than in telling us what we should feel. Mikhail points out that even Kant believed he was providing a rational basis for generally held moral intuitions. Plato's Socrates thinks that the mass of humanity is wrong about what is good, but Aristotle's account of the virtues does not seem to be meta-normative. The natural law tradition seems to be moral psychology. IIRC, Mill claims (wrongly) that our moral intuitions comply with utilitarianism. Everyone who thinks they disprove utilitarianism by showing how counter-intuitive its consequences takes empirical data in the form of undergraduate intuition as capable of counting against a theory in moral philosophy.

And unlike some of the traditional philsophers, contemporary academics working in meta-ethics rarely try to act as moral reformers. (Peter Singer seems to be the main exception.) And few would take them seriously if they tried. (I know a number of vegetarians, not one of whom became that way as a result of Singer.) So it would seem that they are not placed to tell us what we should think about the right or the good, as opposed to making clearer why we think what we already do. But if that is what it's about, then the distinction with theoretical moral psychology seems pretty blurry to me.

"Preventive War" and Preventative Diplomacy

Daniel Larison calls out the cafeteria Catholics at First Things* for rejecting Church teaching on the immorality of "preventive war." Since all states potentially threaten their neighbours, if war could be justified on the basis of "prevention", then all aggressive wars would be preventive ones. Therefore, the Vatican's position is a necessary implication of holding on to any just war theory at all. The point is a so obvious, one despairs that Larison has to make it. But he does, and does it with his characteristic erudition, so I commend it unto you.

I also commend Matthew Yglesias's response to Dennis Ross. Ross thinks it makes sense to impose, as a precondition on negotiations with Abbas and Fatah, that they prevent any attack on Israel by their sworn enemies in Hamas. Yglesias makes the obvious point that imposing such conditions would make it trivially easy for Hamas to prevent any negotiation from occurring. The fact that Ross was Clinton's main man on the Israel-Palestine dispute and Yglesias is a snot-nosed kid may explain why the situation in the Middle East has gotten as bad as it has.

*Since they have rejected "Thou Shalt Not Kill" (Fifth by the Catholic numbering) in favour of Reagan's Eleventh Commandment.

Update After 14 comments: I think the discussion has been interesting. In the end, Andy seems (to me) to retreat from arguing that preventive war is justifiable to arguing that the war was necessary to enforce the peace terms Iraq accepted after 1991. I disagree "on the facts", but I accept that such a justification isn't in principle contrary to the just war tradition.

But while I recognize that some arguments along these lines were advanced, the Bush administration clearly did present itself as putting forward a new doctrine. Lee at Thinking Reed has the goods.

Further Update: On the Internet, you can even get a discussion by an "Independent Catholic Priest" on how Augustine's comments on the Third Punic War anticipate the arguments about Iraq. (Via Thinking Reed)

Der Untergang des Blogosphere

The Globe and Mail points me to this article claiming that October 2006 represented the peak of blogging. Since then, there has been more exit than entry. Soon enough, Josh Marshall and Instapundit will be one with Nineveh and Tyre.

Those of us with a Tory bent will find this comforting. A reactionary's hobbies should not be cutting edge. In an earlier time, such a scruple might have kept the Tory from all kinds of fun. But the contemproary globoculture makes everything a matter of antiquarian interest quickly enough. A generation ago, it would be necessary to affect an interest in Early Music or the Odes of Pindar to be considered a genuine fuddy duddy. Now, it is sufficient to be an expert on The Clash or to care about the merits of the Clinton impeachment.

The Dispassionate Scientist or the White-Coated Fanatic?

As we pleasantly argue about how many Iraqis are likely to have died in the last few years, Andy makes the following point about the editor of the Lancet:

I don't deny the editor the right to hold views that are contrary to my own, and it is possible that in the fulness of time I'll admit that he was right. But, come on...he uses the study to introduce a fairly bombastic denunciation of Blair's "colonialism", "imperialism", "hate", etc. and announces at the end of his speech -- given at an antiwar rally where George Galloway was apparently also speaking -- that "We are the new resistance". This doesn't quite fit the image of the dispassionate lab-coated scientist who we'd turn to for an objective view of a complicated subject. I understand that his emotion might be the result of an honest belief that the war has unnecessarily killed a lot of people, but it still would be a lot more convincing (to me) if the study came from a journal that didn't appear to have such a passionate institutional commitment to the results that the study produced.

You can watch Dr. Richard Horton's speech at an anti-war demonstration in Manchester here. Horton wasn't one of the researchers, but he is ultimately responsible for the quality of the Lancet's stuff. Is it a problem that he is a passionate fellow, especially by standards applicable to Englishmen?

Similar questions come up about climate researchers, or conservation biologists and indeed any kind of scientists whose field intersects with a matter of public controversy. When we get to know them, it turns out that these people are not judicious, impartial types. They are fanatics. Should this lead us to distrust the science?

No. The "image of the dispassionate lab-coated scientist" is itself a product of 1950s-era Madison Avenue, better for selling soap than describing the dynamics of scientific discovery. Scientists are distinguished precisely by their ability to become passionate and blindly partisan about things -- like fruitfly pheromones and fluid dynamics -- that normal people find intensely boring. Republican and Democratic senators can have a drink after a party line vote; their staffers can date. Quantum loop gravity people, in contrast, despise string theorists with the kind of passion a DailyKos diarist would find unhinged.

Science doesn't work because it imagines that the participants can be neutral about their hypotheses. Their careers, their prospects of fame and quite possibly their ideological and existential commitments are bound up in them. Science works because there are clear methodological rules and because there is glory in successful criticism. Ideological biases are fine, especially when there are other people with the opposite ones.

One problem with the legal system is that it does seem to favour the kind of expert witness who is best at giving the appearance of being "above the fray." Judges don't want someone who shows their work -- they want someone whose demeanour makes them comfortable. There are understandable reasons for this, but it's a bit odd since the legal system is itself adversarial and devoted to the idea that truth will come from conflict of interest constrained by rules.

Update: There is a great thread at Cosmic Variance featuring a relatively accessible debate between string theorists and their enemies.

Update 2Via GNXP, I see that in pre-independence India, while Gandhi and Nehru's Congress Party largely attracted Brahmins with legal or journalistic training (something I had been aware of), the Hindu communalist RSS leadership, while also largely Brahmin in caste, were far more likely to have a scientific or technical training. Razib's discussion is quite interesting.