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.

On Her Majesty's Statistical Service

Long-time readers will recall the debate about the Burnham study (usually known as the Lancet study) that estimated excess violent deaths as a result of the US-led invasion of Iraq at around 600,000 as of 2006.. My summary of what I could figure out from reading the methodology and the various criticisms is here.

The British government (along with the Bush administration) was quick to denounce the Burnham study. Blair's office specifically disputed the figures, and British foreign officer minister Lord Treisman attacked its methodology.

Well, it appears that these statements were contrary to the advice Her Majesty's Government was getting from its science advisors. Quoth the BBC:

But a memo by the [Ministry of Defence]'s Chief Scientific Adviser, Sir Roy Anderson, on 13 October, states: "The study design is robust and employs methods that are regarded as close to "best practice" in this area, given the difficulties of data collection and verification in the present circumstances in Iraq."

The new line from the British government is quite a climbdown:

"The methodology has been used in other conflict situations, notably the Democratic republic of Congo.

"However, the Lancet figures are much higher than statistics from other sources, which only goes to show how estimates can vary enormously according to the method of collection.

"There is considerable debate amongst the scientific community over the accuracy of the figures."

Of course, anyone could say that much just from reading the Abstract of the Burnham study. The confidence interval ranged from 426,369 to 793,663. Even if the methodology were perfect, all that could be said is that it is highly likely (95%) that the true figure is between those two numbers.

The other "methods of collection" are really reported deaths. (Like that done by Iraqi Body Count.) That can only give a floor: no one thinks it provides a more accurate measure of actual deaths, and the British government certainly wouldn't in Darfur.

"War Nerd" on Nerdy War Movie

The war nerd watches 300 so I don't have to, and takes down V.D. Hanson in the process.

Most affecting excerpt:

It's downright hilarious the way this movie punishes every smart character. Every time someone wants to argue with the war party in this movie, he's evil. Everybody who talks in a normal tone of voice is evil. Snyder shows two scenes where the Spartans murder Persian envoys arriving under a flag of truce. And both times, you're supposed to cheer.

Since when do Americans cheer when truce parties are murdered? Well, that's pretty easy to answer, actually: since Iraq.

Vive l'ADQ? Vive le Québec libre!

Sweet. Thanks to the kindness of Scott Lemieux, my contentless post crowing about the Quebec election result has sparked an interesting debate in the left American blogosphere.* As an ex-pat, Scott knows the shade of pleased crimson we Canucks turn when anyone in the Great Republic notices the happenings up here.

Of course, this moment was technologically determined. As Michael Kinsley noted, "Canada: Our Troubled Neighbor [sic.] to the North" is the article more Americans want to write than read. Which, when you think about it, is a pretty good definition of what the blogopshere is all about.

To boil it down, their progressive friends find it odd that Scott and Jacob Levy would prefer the "right-wing" ADQ to the PQ, a member of the Socialist International led by an openly gay man. The suspicion that Anglo-Canadian particularist bias might have infected their apparently universalist souls might have occurred to some of the comrades. Flatteringly, Scott hoped that I would add something more congitive to the discussion. So here goes.

• The English Canadian editorials and mainline pundits (exemplefied by Jeffrey Simpson, a mind so pedestrian he makes David Broder look like Michael Kinsley) will tell you not to overestimate the significance of all this, that separatism is as potent as ever, that there is less here than meets the eye. Ignore them.

The PQ is in a terrible position. Just a few days ago, a well-placed nationalist intellectual told me confidently that the Parti would emerge with a small plurality. Mario would fade at the end, as he always has. The Liberals' vote is inefficiently distributed. Now, the PQ has come third in both the popular vote and in its seat total. It will inevitably face a battle over leadership. And with this come difficult, inevitably polarizing ideological decisions. Clearly, the vast majority of Quebecois do not want another referendum about separation -- as long as the two-party system meant that unpopularity of the PLQ necessarily benefitted them, they could afford to ignore this. But smaller parties are usually more ideological parties, and there is no one with the authority of Levesque or Bouchard to tell the party faithful to postpone their dream.

Charest is in much better shape, at least in the short term. The ADQ has always just been Dumont. He needs time to weed out his nutbars, figure out if he has anyone who is cabinet material, etc. He's not going to be in a rush. And he isn't in a position to deny Charest his new centre piece -- using the new federal money for a big tax cut. Harper's shown that you can play a minority with strength if your opponents don't want an election. Charest isn't as clever, but the way seems clear.

The English-speaking media play it pessimistic for a couple of reasons. In some cases -- such as the Globe -- it is because they were burned when they tried to sell Mulroney's strategy of burying separatism by accommodating it. But mostly because English Canadians are really culturally Scottish, and have a pagan Calvinistic sense that optimism brings the wrath of the gods.

• Everyone in the American progressive debate seems to agree that ethnic nationalism is a bad thing. Scott ascribes this sin (reasonably enough) to the PQ, and gives this as a reason for his joy. The bad news crowd point out that the ADQ contains many an ethnic nationalist.

Taking a broader view, the Left has never known exactly what to do with ethnic nationalism in general and Quebec nationalism in particular. Two broad attitudes stand out. The first is Rosa Luxemburg's view that loyalties to any contingently defined subset of humanity is precisely the poison the left exists to fight. The second -- which can be traced to Engels' writing on the 1848 revolutions -- distinguishes the nationalism of progressive peoples (good) from that of reactionary peoples (bad). Embarrasingly, Engels thought Germanic and Magyar peoples were progressive and Slavs were reactionary, but the particular valences don't matter. The key point is that progressive nationalism contains a revolutionary kernel -- its victory will ultimately help destroy all particularisms.

The trouble is that real peoples turn out not to live according to some teleological historical script. When they fight, they fight for unprogressive things like blood and soil. So they go from being progressive to reactionary to progressive depending on the coalitional needs of the moment. The Poles were the most progressive of all nationalities to nineteenth century leftists, but became black reaction personified when the Bolsheviks battled Pilsudski. The Irish are always progressive when battling the British, but somehow managed to have the most socially conservative democracy in history for sixty years. In 1948, the world's most progressive people today, the Palestinians, were -- all right-thinking people agreed -- reactionary allies of fascism. It is often difficult to keep straight which peoples are progressive and which reactionary. The reactionary nature of the Scotch Irish of the American South and Ulster Protestants would seem to be a fixture. But we have recently been told to feel bad for white Rhodesians, and who knows what the election of Jim Webb as a Democratic Senator might portend for his redneck co-ethnics?

It is perfectly true that Quebec nationalism is an ethnic nationalism, although it is the sort of truth everyone knows and no one says. Maître chez nous. Je me souviens. The first person pronoun does not refer to everyone who happens to reside in Quebec. French Canadians have no fundamental objection to people of other stock assimilating and intermarrying -- they have been happily led by three men named Johnson (from one family, but three political parties -- a fact you should bear in mind later.) Ethnic relations in Quebec -- unlike anywhere else in North America -- have long resembled the situation described by Amy Chua of the "market dominant minority." Anglophones (Scots and Jews) were basically analogous to the Chinese or the Maronites, while French Catholics were analagous to the Malays or the Druze. (Fill in your analogy.)

The Quebecois left (with the exception of the odd Bordigist** or two) has always been pretty sure that Quebec nationalism is of the progressive sort. WASP and Jewish socialists have never been as certain. (As with so many things, there were enthusiasts in the sixties, but little enthusiasm remains now that those who experienced it are in their sixties.) Not having access to history's telos, I am unable to resolve the controversy. I acknowledge Levy's point about Quebecois hypocrisy to the national aspirations of the Cree, although they in turn may prove disappointing.

I would, however, reject Rosa Luxemburg's solution. It turns out that it is really Capital that has no country. Ethnic loyalties are a universal part of human nature, and it is in fact one of the objections to the society of contract that it suppresses them. Obviously, the last century has many examples of dangerous and extreme forms of ethnic nationalism, but the record of universalism is not any better. To take parochial (and mild) examples, it was the cosmopolitan Trudeau, not the nationalist Levesque, who declared martial law after two kidnappings and convinced the Supreme Court that double digit inflation represented an "emergency" sufficient to suspend the ordinary constitution. No important Canadian politician, before or since, has been so doctrinaire or so sympathetic to totalitarianism. Perhaps what we want is moderation both in our particularists and in our universalists.

The trouble with the PQ is not that they have been ethnic nationalists. There have always been parties and politicians representing the French interest in Canada, and no doubt will always be as long as Canada exists as a binational country. And those politicians were right about important things like World War I. Part of the trouble is precisely that the PQ have been shamefaced ethnic nationalists. The post-sixties territorial definition of "Quebecois" -- supposedly a great improvement -- clearly excludes a million French Canadians living outside Quebec without really including the million non-francophones living within its borders. It is (provincial) state-centric.

The ADQ undoubtedly has a few nuts. The last representatives of a conservative tradition in Quebec, Caouette's creédistes, were completely loopy. But, sensitive as the relationship between the survivance and contemporary Canadian immigration patterns may be, issues of demographic change should be addressed by mainstream parties.

• Even though I disagree with him on the merits of ethnic nationalism, Scott is exactly right that the "left-wing" domestic politics of the PQ has a different meaning in the Quebec context than they would in contemporary America.

The Quiet Revolution left an interlocking set of nationalist elites in business, the labour movement, the intelligentsia, the PQ, the quasi-state (the Caisse and Quebec Hydro) and the bureaucracy. It's past time to open this up. Bringing in more market forces and lowering the tax burden is not, in the Quebec context, about decimating the welfare state. Maybe Dumont would someday like to get to that point, but Quebec is a long way from that.

Update: Professor Levy has a very generous response to this post here. He's clearly as far from a simple-minded "Luxemburgian" as it is possible to be. He was writing interesting things about the relationship between federalism, liberalism and multiculturalism before he got to Canada, things I thought had special relevance to Canada when I first encountered them. It would be fascinating to see how living in Montreal has affected his thinking.


*Taking libertarian Jacob Levy as a lefty for these purposes.

** And what other kind of Bordigist is there?

The Witty and Incisive Post

As BKN notes, both of the Supreme Court of Canada cases released last week involved that dog's breakfast of administrative law, the "standard of review."

Most law revolves around conflicting imperatives. In administrative law, there is the principle that the ordinary courts should make sure that every body with legal power over the subject keeps within those powers (its "jurisdiction"). The New Dealers left us the competing principle that the expertise of specialized boards and tribunals should be respected (given "deference"). These two ideas -- each of which sounds reasonable -- are sort of at war with each other.

Canadian law tries to resolve the dilemma by deciding on one of at least three "standards of review" that should be applied to the decision of the tribunal by the reviewing court. Some things the inferior tribunal must be right about. Others it can be wrong, as long as it is reasonable. And still others, it can be unreasonable about as long as it is not "patently unreasonable."

This way of resolving the genuine dilemma is patently unreasonable itself. But what is even worse is how you decide which of the standards of review gets to be applied. I'm not going to get into it, but pretty much any administrative lawyer will agree that the whole thing is a mess.

That's bad, but not all that unusual. There are many messes in law. But what is really bad is that the Court calls its multi-factor approach to determining standard of review the "pragmatic and functional approach". And lawyers -- who are all sycophantic courtiers when it comes to legal argument -- follow along, even though they would to a soul agree that "scholastic and dysfunctional" fits better.

Undeserved self-praise in labelling is not unique to the Red Nine. Management consultants, commercial advertisers and politicians are more ubiquitous. Still, the judges are alone in that we expect them to delineate the limits of their own power. In Schmittian terms, they decide on the exception. So it is particularly obnoxious coming from them.

PQ comes third

Ha!

Congratulations to M. Dumont. It looks like a federal election.

Ville de Lévis

Everybody knows the dice are loaded. Everybody rolls with their fingers crossed. Most of us sooner of later picked up that the deal is rotten and the fight was fixed. But even those naive souls who haven't figured any of these things out are aware that it's hard to be fired from a unionized public sector job, particularly in Quebec.

But still, the circumstances of Danny Belleau's reinstatement are hard to believe. Belleau was a cop in a small city in Quebec. Over the holiday season of 2000-2001, he got into a fight with his common law partner, resulting in convictions for threatening to cause death or bodily harm, assault, three counts of improper storing of a firearm and breach of his release conditions when he showed up at her parents place after undertaking not to contact her. In each case, Bellleau pleaded guilty to the criminal charges. He was dismissed from the police force, but an arbitrator reinstated him. The "special circumstances" were that he was in a "morbid mental state" as a result of family problems. Belleau succeeded in having the arbitration award upheld in the Quebec Court of Appeal.

One doesn't need to be a follower of Dr. Thomas Szasz to see that any violent person can get a medical opinion that they were in a "morbid mental state", and even the morbid ought to lock up their guns. Maybe especially. So I sympathize with the Supreme Court of Canada's reversal of the award. But I have some trouble with the reasoning.

As in every administrative law case, the first part of the decision consists of mumbo-jumbo about "standard of review", which must be decided based on the "pragmatic and functional approach." Lay readers are advised to skip this. Bastarache has decided that in deciding whether there is a conflict between statutes, arbitrators are required to be right, but when deciding on how to apply these statutes, they are allowed to be wrong, if they are reasonable, but not if they are patently unreasonable. This is just as stupid as it sounds. Still, there's not much point complaining about the "pragmatic and functional" approach, and it does add to the billable hours.

But on the other major legal issue, on the compatibility of statutory provisions, I think Bastarache has muddied things up once again, and things are not yet so far gone that complaining is pointless. This may have negative consequences for the federation, or just for the coherence of this area of law, depending on how seriously it is taken. Canadian law -- to the Ectomorph's dismay -- has always had a wide view of what laws are compatibile with each other. Laws are only incompatible if it is literally impossible to comply with both. If Law 1 says that A is forbidden and Law 2 says it is obligatory, then there is an incompatibility. But this almost never happens. In the more common case where Law 1 says that A is forbidden, and Law 2 says it is permissible (but not specifically privileged), then the two laws are considered compatible: A is just forbidden. For example, a local prohibtion on the use of a pesticide for cosmetic purposes has been found to be compatible with a regulatory pass for that pesticide by the province. And the same thing can be an offence under any number of laws without creating a conflict.

There were two laws that might have applied to Danny Belleau's employment. One said that criminal conviction for criminal offences (other than summary conviction offences) will lead to dismissal as a police officer, unless there are special circumstances. The other said that a criminal conviction for an offence with a maximum penalty of more than 1 year (which includes almost all non-summary offences) disqualifies a person from employment as a municipal official for 5 years. Belleau, as a muncipal police officer, is in the intersection of the groups to which the two statutes apply. So is his dismissal automatic, or can he show special circumstances? Bastarache decides that the two laws are incompatible because the muncipal official one "effectively" and "pragmatically" denies the right to show special circumstances. Since the cop law is later and more specific, it wins out.

I think the concurring judges have the better of the argument here. The cop law is not trying to create a special right for cops; it is just another type of (almost) automatic dismissal provision. It is possible to be disqualified from municipal employment without being fired as a cop. So there is no incompatibility on the traditional Canadian approach.

These fine doctrinal points matter to federalism. Under the doctrine of preemption, American courts take a wider view of what amounts to incompatibility between two laws. This leads to both floor and ceiling preemption: if there is federal law about, the states are unable to provide for either lower or higher standards. Overlapping jurisdiction means federal authority. In contrast, in Canada, each level of government can fairly easily provide new requirements. Federal paramountcy rarely matters very much in Canada, unlike in the US and Australia.

The good part of this is that it preserves federalism, even as other doctrinal developments make concurrent jurisdiction more and more extensive. The bad part is that it is bad for freedom if "X is permissible, but not obligatory" is the rule that always gives way. As a provincial autonomy sort, I would prefer a real policing of the boundaries of jurisdiction, but since that's unrealistic, I would still want to resist any expansion of incompatibility.

The simpler point -- and the real reason I'm not going to give P&S's coveted "Thumbs Up" to this case -- is that Bastarache didn't even need to go there. The whole court agreed that no special circumstances existed. The wisdom to shut up about tricky doctrinal issues that don't need to be decided -- particularly ones that might upset the balance of the federation -- is an important judicial quality, and was lacking here.

Case Comment of Lévis (City of) v. Fraternité de polciers de Lévis Inc., 2007 SCC 14

Four Years Ago, Part 2

This post is from April 2003, so it is technically cheating:

I didn't say the Bush administration had advanced the most transparently immoral argument for war since Alaric. I used that characterization for the Canadian business community that says we should have participated so that we don't face protectionist measures from the United States. That argument is transparently immoral since it uses economic interest as a justification for lethal force. The Bush administration (rightly) does not argue that the war against Iraq will bring the United States any economic benefit.

No doubt there will be *some* good consequences of the war. But it seems strange for a libertarian [like my interlocutor] to think that's the end of the analysis. There would be some benefits of a government program giving all high school graduates free sports cars. The question is whether the costs of the war in global instability outweigh the benefits. It seems odd to me that you think governments will necessarily make things worse by regulating pesticides, but establishing democratic self-government in a (at minimum) half hostile country is a doddle.

All occupations, like all taxes, are "temporary." Just as soon as order is restored, democracy established, "terrorists" disarmed and global brotherhood established, the United States and United Kingdom will be on their way, bedecked in garlands by a grateful population.

If the Iraqi population is genuinely supportive of this adventure, then this rosy scenario could materialize. But I don't think it will. We really don't know what the Iraqi population think now. The evidence from exile communities (which would, if anything, be biased in an anti-Hussein direction) suggests that even at the beginning of the occupation, there is a range of opinion from support through indifference to hostility to the Americans among anti-regime Iraqis.

Historical experience suggests that the longer the occupation lasts, the more hostility there will be. In Somalia in 1993 and in Ulster in 1969, the population initially welcomed the occupiers: neither turned out that well. Even if there is material improvement, Iraqis have suffered a national humiliation. Arabs in neighbouring countries are in a cold fury against the United States, and it seems likely that, assuming the country opens up, this message will spread. If anything goes wrong, the occupiers will (rightly) be held responsible. Moreover, American armies are not known for their cultural sensitivity and the Bush regime prefers to smother bad news than learn from it. All in all, a recipe for increasing resentment.

This resentment could lead to an intifada. The undeniably immense technological superiority of the US military will be of little use if this occurs. Instead, the US will have to choose between crushing the rebellion and withdrawing. The obvious leaders of such an intifada are (you guessed it) Islamist fundamentalists.

The more general point is that national sovereignty is a necessary, although obviously not sufficient, condition for democratic self-government.

More broadly, this war sets a bad precedent. If we take seriously the "Bush doctrine" of pre-emption, then any country could justify invading any other. If we, more realistically, accept that the Bush doctrine is only intended for hegemons to invoke, then there is no reason to stop at Baghdad. Damascus and Tehran await. Etcetera. Either America becomes the ruler of the world or it repudiates the Bush doctrine.

But if I am wrong about all of this, I would say the same things about Celluci's intervention, and the craven response to it on the Canadian right. Even if the war and occupation turns out brilliantly, friendly countries, like Canada, are entitled to take a different view without being threatened. Loyal oppositions do not react to threats to their country by chiding the government of the day for upsetting the hegemon. The threats on Canada are what make me angry, but they are not of the greatest world-historic importance. But similar threats have been delivered to Turkey because its government followed the wishes of over 90% of its population. This *is* of world historic importance, since Turkey is a precarious Muslim democracy, with a pro-American military willing to threaten the civil government.

It seems odd to me that you don't recognize the inherently mercantilist logic behind Celluci's statement that the US values security more highly than trade, with its implicit threat that Canada will suffer trade consequences if it does not adopt the Bush administration's view of security. Canada will suffer if the United States goes down the protectionist road, but so will the United States. We will suffer more, but we will suffer proudly if our only alternative is capitulation.

Four Years Ago, Part 3

Well, I haven't been very successful in getting any of you to to talk about the 2003 me, so I'll talk about me. Hey, if you don't do it for the money, you do it for the vanity.

I think I was basically right that "Iraq represents no plausible undeterrable threat to the United States or the world, and certainly not one proportional to the risks and immorality of starting a war." No WMDs were found -- contrary to my expectations of "a few canisters of nerve gas in a basement in a Baghdad suburb." The risks of occupying a Muslim country are now fairly obvious, although I would have expected an attack on the North American mainland by now.

My concern that the new regime would consist essentially of Ba'athists not immediately related to Saddam Huseein turned out to be false. I wrote something a few months later assuing that the Americans would never permit pro-Iranian Shi'ite parties to take power. Wrong on that one.

I am now more inclined to a pretty strict Westphalianism (no war to change the internal nature of other countries). I'd still say that intervention in the midst of an ongoing genocidal massacre is excusable, if not always prudent. By March 2003, Britain and the US had already created a de facto Kurdistan, and I think (and thought) that this was justifiable. Indeed, I would say that by now, the West owes the Kurds some protection.

"The old racist, colonialist line that Arabs are not ready for democracy" looks a lot better today. I don't, however, think this is because of something essential in Arab nature, but sometimes the historic situation makes majority rule and a reasonable amount of liberalism incompatible, and this is one of those times.

Four Years Ago

There appears to be a vogue for bloggers re-publishing what they said about Iraq in March 2003. "Pithlord" didn't exist back then, but my alter ego did participate in a Canadian current affairs Listserv. I've done a light edit of my posts to preserve pseudonymity (and remove embarrassing typos), although it wouldn't work against someone really motivated. I will write something about what I got right and wrong later, but I thought I'd let commenters have a go first, if they are so inclined.

February 20, 2003:

Iraq represents no plausible udeterrable danger to the United States or the world, and certainly not one proportional to the risks and immorality of starting a war. I agree with *** that the only plausible argument in favour of war is the removal of the gruesome Ba'athist dictatorship. It is hard to know whether the Iraqi people would really regard this as a liberation (many peoples in the past have fought hard to protect domestic tyrants against foreign "liberators"; on the other hand, the one thing we know about Iraqi public opinion is that there is no reliable way of knowing what it is).

Unlike some people on this list (the "Westphalians"), I am not in principle against the use of military force to overthrow tyrannies. It seems axiomatic to me that sovereignty, as a principle, should be for the security and self-determination of the people, rather than an excuse for inaction when the state is massacring civil society. If this is contrary to the UN Charter and Lloyd Axworthy's worldview, so much the worse for them.

However, members of the Iraqi opposition in exile are raising the alarm that US foreign policymakers plan a military government, with domestic quislings acceptable to the Gulf oil monarchies. Defectors from the Saddam regime, all of them butchers in their own right, are promised positions of influence in the new order. The promise of a secular democratic federal Iraq seems likely to be betrayed. The Left is assisting in this process, by repeating the old racist, colonialist line that Arabs are not ready for democracy (ignoring the role of the West in keeping them from having an opportunity to demonstrate otherwise). The pro-war Right seems incapable of anything other than uncritical adulation of Bush and equating skepticism about Ariel Sharon's desire for peace with anti-Semitism. But as proponents of this war, they should be the first to raise the issue of what kind of Iraq is contemplated after it is over.

March 19, 2003:

The truly outrageous aspect of the Bush administration's claim that UN Resolution 1441 authorizes its actions is that, at the time, it obtained that Resolution precisely on a promise that it would not execute the "serious consequences" without a second resolution.

Josh Marshall has the money quote from Ambassador Negreponte. This is what he said, on behalf of the US, when the Security Council approved 1441:

"There's no 'automaticity' and this is a two-stage process, and in that regard we have met the principal concerns that have been expressed for the resolution. Whatever violation there is, or is judged to exist, will be dealt with in the council, and the council will have an opportunity to consider the matter before any other action is taken."

By betraying that promise, the Bush administration has made it clear that it means what it said in the National Security Strategy, paraphrased by Gore as the recognition of no limits on the US's right to employ military force other than the discretion of the American President.

Is it hard for Americans and their cheerleaders on the right in other English speaking countries to understand that most of the world (rightly or wrongly) considers that proposition much scarier than a few canisters of nerve gas in a basement in a Baghdad suburb? A narcissist is congenitally incapable of seeing him- or herself as others do. Only a narcissist would be surprised to find that the US's actions -- clumsy lies to the Security Council, shifting rationales for a war that has clearly become an end in itself -- would unite world opinion behind anyone, including a corrupt Gaullist, willing to stand up to it.

On the one hand, I hope that the war is swift, that the criminal military trial balloon about "shock and awe" is not followed through on, and that Iraq establishes a federal democracy in the aftermath. But if this rosy scenario does occur, will it not embolden the Bush administration to new and even more dangerous adventures?

Also on March 19, 2003:

I don't believe France said it would veto any resolution that involved the use of force, but that it would veto any resolution that *automatically* authorized force if Iraq did not comply. This is a reasonable position, if you don't trust the US to fairly determine compliance. France's position in March was consistent with the position it took last Fall. The US solemnly stated that there was no "automaticity" in 1441.

What Canada, and others, proposed was a second resolution with a deadline, after which there would be "automaticity". France's opposition was reasonable, because the Bush administration has made it abundantly clear that they will read anything, short of regime change, as non-compliance.

March 20, 2003:

Is "imperialism" a fair word to describe the Bush doctrine, or recent US policy more broadly? I agree with *** that the leftist theory of imperialism, which essentially equates it with capital investment in other countries, is economically illiterate. There is also nothing inherently imperialist about being more powerful than anyone else, or leading an ideological struggle against Leninism, or providing support to ideological allies throughout the world.

But it isn't just the usual suspects who are using the i-word.

What is remarkable is that, for the first time since the Teddy Roosevelt administration, figures with influence in American policy are talking about "empire" favourably. Formally, the administration has not gone that far. But its claims, in its most recent National Security Strategy report, are "imperialist" on any reasonable interpretation of that word.

An "imperialist" claims sovereign authority over large swathes of overseas territory. Imperialism is consistent with some limited rights of local self-government, providing that the ultimate authority is with the imperial country. Max Weber defined the state as the monopoly of armed force within a territory. Clearly, another aspect of sovereignty is the right to determine who will exercise the various functions of government.

In the National Security Strategy, Ms. Rice, on behalf of the US government, stated explicitly, that it would act to remove potential threats and unfriendly regimes, on the basis of no other authority than that of the President. In other words, the territory with respect to which the US claims the monopoly of armed force is the Earth (and, for that matter, its orbit).
This doctrine is being tested in Iraq, and the main reason for the resistance of the world is not friendship for the Iraqi regime, but fear of this doctrine.

Against this doctrine, much of the world puts forward the Westphalian understanding that each state is sovereign within its own territory. The corollary of this doctrine is that war can only be justified if a state has actually invaded (or, at minimum, has a present intention to invade, combined with steps towards doing so) your own state or an allied state. The Westphalian doctrine could justify Gulf War I, on the grounds that Kuwait was an allied state to the US and the other participants. It could justify the war in Afghanistan, since there was a clear link between the Taliban regime and the September 11 attack. But it cannot justify Gulf War II (and couldn't justify the 1990s interventions in Panama, Somalia, Haiti, Bosnia or Kosovo either).

The Westphalian understanding is the basis of international law, as set out in the UN Charter, and in international custom. The only exception is where the UN Security Council has specifically authorized the use of force. This it declined to do in UN Res. 1441.

Moreover, the Bush administration (unlike Blair's UK) -- while formally asserting that it has authority for this war from the Security Council -- also says it doesn't need it. The real advocates of the war against Iraq are contemptuous of the United Nations and international law more generally.

There are objections to the Westphalian view. The first is a moral one, made most vivid by the 1994 genocide in Rwanda: if sovereignty has any moral force, it must be because it preserves the security of individuals, but if it is slaughtering them, how can we morally stand by when we have the power to prevent this, without an over reliance on the act/omission distinction?

This is a question people like *** have to address.

The other is a genuine security issue. The major threat to us in the developed world is not imminent invasion by a major state, but the proliferation of retail nuclear weapons, particularly in the hands of fanatical NGOs, like al Qaeda. Pure sovereignty allows any country to build whatever weapons it wants, as long as it does not violate its treaty commitments. I do not see this working as a system of world order as the technological capacity for mass violence becomes increasingly affordable.

U.S. imperialism may be a solution to these problems. It is difficult to deny that the regimes targeted by the US and its coalitions of the willing are much more heinous than their replacements. (I realize that on the Internet it is possible to deny anything, but I'm trying to establish why *reasonable* people would say the US is being imperialist, and it's a bad
thing.)

U.S. imperialism, if followed through, could also, in theory, deal with the proliferation problem: by definition, it leaves the U.S. in control of weapons of mass destruction, but, in principle, this is no different than the Hobbesian police department being the only ones with automatic weapons.

If the only choice is between Westphalian anarchy and U.S. imperialism, it is arguable that the latter promotes better the greatest happiness of the greatest number, and/or might be chosen behind the veil of ignorance. The logic is Hobbesian: better one absolute monarch who can establish order and let all the burghers trade peacefully than hundreds of ministates with nuclear weapons. The permutations of conflict rise exponentially.

Still, being honest about the downside is the first rule of policy analysis, and there are some downsides. There's the strange American habit of electing personable governors from the least civilized part of their country to supreme executive office. This is fine when they turn out to be adulterous policy wonks with Oxbridge educations, but can turn sour when they are dim, earnest and parochial jocks, with a moral worldview less complex than that of Dungeons & Dragons. More generally, there are the classic problems of vesting unlimited authority in a single individual not accountable to the vast majority of people over whom authority is exercised.

A claim by the US to sovereign authority over the entire world will not be readily accepted by the vast majority of people on the planet. That is what the diplomatic and political manoeuvres prior to this war have been about, and not about Iraq itself. The hawks need to address an obvious problem: the government of Chile (for example) fears for its survival if it supports the US in the Security Council, despite all the inducements and threats of the hegemon. Why? Is it because the people of Chile care that much about who will be the dictator of Iraq? No, it is because they don't care about the regime in Iraq, but they do fear the power of the United States. And who can blame them?

The result is that a US imperialist world order, without any structure of international law or supra-national institutions, cannot possibly be a basis for security in this century. On the other hand, no such order can be built without the support of the United States. If we look rationally at the US's legitimate security concerns, which center entirely on proliferation of mass weaponry and terrorism, it appears obvious to me that these concerns can only be met on a multilateral basis, according to which *everyone* trades some sovereignty for the collective good. This goes against neoconservative ideological prejudices (and the interests of Greater Israel fanatics). As a result, it will have to await regime change in Washington.

March 31, 2003:

Now, I'm no supporter of the late Senator Joseph McCarthy. But he had a point about one thing. There was, in the 1950s, a significant global communist movement, and it did, as a matter of ideological principle, subordinating the interests of one's own country to those of the Soviet workers state. And, while as a civil libertarian, I support the right of persons with an ideological preference for putting another country's interests first, I don't think such people should be trusted with governmental power.

And I'm no fan of Preston Manning's Reform Party. But they had a point too. There was something a bit anomalous about the Bloc Quebecois being "Her Majesty's Loyal Opposition" when they were committed to the end of the Canadian constitutional order. I disagreed with them, because the BQ committed itself to working within the structures of Canadian federalism to achieve their goal of dismantling those structures. It was therefore "loyal"
in the sense most important for an opposition party.

However, after its reaction to Celluci's threat against our country, it is now evident that the "Canadian Alliance" is not a loyal opposition. Celluci threatened to put Canadians, including Alliance voters, out of work for following its own sovereign policy with respect to war in Iraq. A loyal opposition, even if it felt that Canada's interests would be best served by participating in Bush's war, would have been the first to say that this was an unacceptable interference in the internal politics of a friendly nation.

That is because a loyal opposition, while not necessarily accepting the wisdom of the policies of the government of the day, accepts that the constitutional structure vests the power to make Canadian foreign policy in the government of Canada.

The distinction is similar to the distinction between those, in the Cold War, who believed it was in Canada's interest to take a more congenial attitude towards Moscow, and those who worked to further Moscow's interests against that of Canadians. A more plainspoken age called it the difference between dissent and treason. Supporting the right of the US government to use economic pressure (presumably in violation of its treaty commitments) against Canadian working people because of the decisions of the Canadian government is on the wrong side of that line. A self-respecting nation (both France and the United States would qualify) would not tolerate a politician or a media chain who took this position.

The Canadian Right is as ideologically invested in the United States as the 1930s Communist Party of Canada was invested in Stalin's Soviet Union. The United States is a more benign society, of course, but its interests, particularly under this administration, are not our interests. The peace movement should petition the speaker to remove the title of leader of Her Majesty's Loyal opposition from Mr. Harper. It should also target those Canadian businesses who have spoken out in favour of Mr. Celluci with its own boycotts. The Canadian Right should clean its own house, and explain where its loyalties lie.

As *** has pointed out, Canada has not been alone in being on the receiving end of official chastisement from Washington for its (well advised, in my view) refusal to endorse Bush's war for regime change. Bush threatened Mexico with a "spontaneous" backlash against Americans of Mexican descent if Mexico refused to vote its way in the Security Council. We should link up with Mexico and Chile, and ask for official confirmation from the United States that it will not seek to punish, economically or in any other way, friendly countries that disagree with it about Iraq. Given that coalition forces are now stalled outside Baghdad, that it is increasingly obvious that Iraqis are not going to view the United States and Britain as "liberators" and there is a real threat of the war escalating to Syria and even Iran, we should also propose a ceasefire, and the return to a disarmament process overseen by the Security Council.

The good news (or at least speculation) is that heads appear to be about to roll in Washington. Rumsfeld and possibly Rice may become the scapegoats for the failure of the rosiest scenario to materialize.

I realize this posting is already long, but I though many might find the following Boston Globe article interesting. It blames Commonwealth rightists, including Canadians Conrad Black, Mark Steyn, Michael Ignatieff, Charles Krauthammer (who I didn't realize was Canadian) and David Frum, for trying to make "imperialism" a positive word in American foreign policy circles.

Dreams from My Father

I am reading Barack Obama's first book. There is a lot in it that -- taken out of context -- could be pretty damaging in the hands of an enemy, and he won't lack for enemies capable of paying someone to read the book. But -- I'm now at Chapter 5 -- I think it would be a mistake to read it as anti-white or an embrace of simple-minded black nationalism. Obama is subtle, maybe too subtle.

Here he is on his white liberal mother became an (apparently unsuccessful) avatar of Midwestern Anglo values in fatalistic Muslim Indonesia (the typos are mine):

Honesty — Lolo [Obama’s Indonesian stepfather] should not have hidden the refrigerator in the storage room when the tax officials came, even if everyone else, including the tax officials, expected such things. Fairness — the parents of wealtheir students should not give television sets to the techers during Ramadan, and their children could take no pride in the higher marks they might have received. Straight talk […] Independent judgment — just because the other children tease the poor boy about his haircut doesn’t mean you have to do it too.

It was as if, by traveling halfway around the globe, away from the smugness and hypocrisy that familiarity had disclosed, my mother could give voice to the virtues of her midwestern past and offer them in distilled form. The problem was that she had few reinforcements; whenever she took me aside for such commentary, I would dutifully nod my assent, but she must have known that many of her ideas seemed rather impractical. Lolo had merely explained the poverty, the corruption, the constant scramble for security [in Indonesia]; he hadn’t created it. […] My mother’s confidence in needlepoint virtues depended on a faith I didn’t possess, a faith that she would refuse to describe as religious; that, in fact, her expereience told her was sacrilegious: a faith that rational, thoughtful people could shape their own destiny. In a land where fatalism remained a necessary tool for enduring hardship, where ultimate truths were kept separate from day-to-day realities, she was a lonely witness for secular humanism, a soldier for New Deal, Peace Corps, position-paper liberalism.

On Malcolm X:

Only Malcolm X’s autobiography seemed to offer something different. His repeated acts of self-creation spoke to me; the blunt poetyr of his words, his unadorned insistence on respect, promised a new and uncompromising order, martial in its discipline, forged through sheer force of will. All the other stuff, the talk of blue-eyed devils and apocalypse was incidental to that program, I decided, religious baggage that Malcolm himself seemd to have safely abandoned toward the end of his life. And yet, even as I imagined myself following Malcolm’s call, one line in the book stayed me. He spoke of a wish he’d once had, the wish that the white blood that ran through him, there by an act of violence, might somehow be expunged. I knew that, for Malcolm, that wish would never be incidental. I knew as well that traveling down the road to self-respct my own white blood would never recede into mere abstraction. I was left to wonder what else I would be severing if and when I left my mother and my grandparents at some unchartered border. (p. 86)

More later...

Choice or Justice? Abortion Rights and Retail Eugenics

Having recently spoken well of Lindsay Beyerstein, I think it is interesting to note how two of her recent posts show the tension between strong pro-choice commitments and the left's support for the traditionally marginalized and oppressed. Beyerstein is nothing if not logical, and so the dialectic plays out very quickly. But I think it has broader implications, some of which Russell Arben Fox has blogged about.

In the post I originally linked to, Beyerstein indicated her disgust with an Albert Mohler of the Southern Baptist Theological Seminary, who apparently supports the idea of screening pre-natally for same sex sexual orientation, followed by "treatment", should these things become scientifically possible. Mr. Mohler doubtless would not approve, but the most likely "treatment" will be abortion.

More immediately, inferential statistics show that sex selection through abortion is widespread. And of course, there are very few Down syndrome kids anymore.

Not surprisingly, as a progressive pundit, Beyerstein initially showed disapproval of Mr. Mohler's homophobic stance.

Beyerstein was taken to task for inconsistency by libertarian Julian Sanchez. A fetus is not a person, and therefore, he claims, has no legal or moral rights. So there can be nothing legally or morally wrong with killing or modifying it, even if the parent's preference is a morally arbitrary one.

Beyerstein -- to the credit of her consistency, if not of her premises -- posted again, essentially agreeing with Sanchez. When I asked her to clarify whether she was just saying that women shoudl have the legal right to use abortion to select for sex or sexual orientation, but that it was still morally wrong, she said such abortions were morally indifferent, although they reveal a character flaw of discriminatory attitudes.

I agree that a fetus is not a person with equal legal and moral rights to the born. I think that view is fanatical -- no well-constituted person would leave a child to die to save any number of blastocysts. But the Sanchez position -- that any abortion for any reason is morally indifferent -- seems equally fanatical to me. When the left embraces such a position, especially in relation to disadvantaged and marginalized groups, it abandons its core commitments, the ones that give it a right to exist.

One problem is imposing a discrete framework of person/nonperson on what is a continuous process. Another problem is the quintessentially liberal assumption that all our duties derive out of the rights of other persons.

Perhaps we should start from the recognition that abortion is an act of violence. Not all violence is wrong. Some is necessary; some is justified; some is excusable. If we aren't strict vegetarians, we eat as a result of violence. It is violence (against people) that sustains borders internationally and law domestically. Requiring someone to give birth against her will would also be an act of violence. But it is perhaps just a little too easy to declare violence -- especially violence we are accustomed to -- necessary. And it is even easier -- but worse -- to decide we don't need to find it necessary because it isn't violence at all.

We have already passed the point where parents can -- and do -- decide their children's sex prenatally. Soon, it will be sexual orientation, and IQ, and personality profiles. A mature parent is one who realizes how little his or her "preferences" matter to what a child is going to be, who accepts the dread that comes in knowing how wide a variety of futures there are, and how little -- in the final anlaysis -- our planning can do about that. At the same time, the pressure for more detailed planning, for better control, grows. I see a grim future in all this choice and technology.

Voting, Truth and Logic: One more time on Bryan

The Bryan decision is still bugging me. I find the idea that a priori "logic and reason" should be preferred to actual empirical evidence difficult to take in the first place. But even a priori logic points in the opposite direction the Court took.

Suppose that the act of voting is a cost we engage in to get a government we want. Whether we live in Nanaimo or Bonavista, the chance that our individual vote is going to affect who becomes the local MP, let alone who constitutes the government is essentially zero. So on this assumption, no rational person would vote.

This argument leads to the expressive theory of voting. Instead of conceiving of voting as something we do in order to get a result, we vote to express our political identity (or perhaps as a civic duty). In economic terms, voting is consumption, not investment. It follows then that we would vote the same way regardless of who was going to win.

This argument may be wrong, since it is premised on people being instrumentally rational. Maybe they aren't. But I can't think of any way to reason about how people will react to information that is based neither on evidence of how they in fact do so or on an assumption of rationality. If Bastarache does, he should publish.

Pith & Substance Gets Results!

Trade Minister Emerson announces plans to negotiate a Canada-India Free Trade Agreement, as supported here.

Kremikovtzi Trade --Thumbs Up

What with all the excitement of security certificates and election result publication bans, it is with a certain sense of relief that we turn to the Red Nine's latest on the limits of in rem jurisdiction in admiralty cases.

Phoenix Bulk is in the business of transporting cargo by ship. It says Kremikovtzi Trade contracted with it to move some coal from Vancouver to Bulgaria. But -- if Phoenix Bulk is to be believed -- instead of following through with this contract, Kremikovtzi arranged with the owners of the Swift Fortune to transport the coal on that ship instead.

The question is whether Pheonix Bulk can "arrest" the cargo in the Swift Fortune. This turns on whether the Federal Court as an admiralty court has in rem jurisdiction over the cargo, which in turn depends on whether it is the "subject" of the action.

In its 2000 Paramount Enterprises International Inc. v. The An Xin Jiang decision, the Federal Court of Appeal ruled that the cargo that is the subject of a contract of this nature is not the "subject" of an action for breach of that contract. The Court of Appeal in Kremikovtzi Trade thought that this was wrong, but binding on it. The SCC rather tersely just said that since it was not bound by Paramount, it was free to overrule it.

Neither court really says why Paramount is wrong. Statutory interpretation cases can be resolved just from intuitions about what words "plainly" mean. But I think more satisfying reasoning is available here.

What do the parties agree to in a contract of "affreightment"? One thing the carrier gets is the security that if it isn't paid, it has possession of the cargo. This security means it can charge less than it would if it didn't have this way to reduce its risk.

Let's suppose the cargo is not delivered at all. What is the carrier deprived of? Most obviously, the carriage price. But it also loses the security possession of the cargo provides.

The Court in Paramount was dead right to say that not all property remotely connected with an admiralty case could be the "subject" of the action. But it ignored how central possession of the cargo is to what a carrier bargains for.

So it was good that Paramount was overruled. I'm not sure it would have killed the court to show its work a bit more though, so this is a pretty limited "thumbs up."

Case Comment of Phoenix Bulk Carriers Ltd. v. Kremikovtzi Trade, 2007 SCC 13

Well Said

Analytical feminist Lindsay Beyerstein makes a great point:

People who put too much emotional stake in nature/nurture questions are usually trying to shirk the harder work of making a defensible value judgment.

R. v. Bryan -- Thumbs Down

For many years now, political junkies on Canada's west coast have faced an irritating choice on federal election nights: the smug visage of Peter Mansbridge or the partially-reanimated corpse of Lloyd Robertson telling us either who had already won or (with patronizing smile or barely detectable eyebrow movement respectively) that we would for once have an impact on who governs us as a result of divisions among our fellow citizens in more easterly time zones.

By law, we are not supposed to know which of these things are true, or which party will form the government, until our own polls close. The theory is that ignorance will boost the number of lotus eaters putting down their joints long enough to exercise their franchise. (Although actual evidence for this theory is, as we shall see, scarce.) Section 329 of the Canada Elections Act makes e-mailing the results in Cape Breton-Canso to a pal in Vancouver Kingsway is committing an offence punishable by imprisonment.

Today, the Supreme Court of Canada ruled 5-4 that the law is OK by the Charter of Rights. Bryan posted federal election results in Nova Scotia on his web page before the polls closed in the West. He was charged and convicted, and the Court has now upheld that conviction. They thereby revealed a number of alarming things about the protection of freedom of speech in this country.

In Canadian constitutional law, all analysis comes in at least two stages. It is never enough to know just that a right has been violated: the court also has to determine whether the violation is a reasonable one, saved under section 1 in accordance with the jargon.

Under Canadian freedom of expression doctrine, the first step is pretty much always a foregone conclusion. Any activity capable of conveying a meaning is taken to be expression and any government action that makes that activity a little more difficult counts as a "prima facie breach". The real issues are always addressed when figuring out whether the violation is reasonable. The Pithlord has no particular objection to this -- free speech absolutists either haven't thought very hard about their position or are total nutbars. The trouble in Bryan lies with what the majority is prepared to accept as a justification for infringing what they concede is the core of the freedom of expression guarantee -- talking before voting.

First, the Court tells us that governments can legitimately limit freedom of expression to obtain "informational equality" among voters. This is a concept Robert Mugabe would love, since it could justify any act of censorship. Anything anyone says, or writes, or posts obtains a limited audience, and therefore creates an informational imbalance between those who hear or read or download it and everyone else. It follows that all political expression creates informational inequality. According to Sitemeter, even Pith & Substance fails to reach the entire Canadian electorate. To the extent this post has informational content, you, dear reader, are now part of an informationally advantaged group. Shame on you, you informational kulak.

It is true that the movement of the Earth provides BC voters the opportunity of knowing how Nova Scotians have voted prior to voting themselves. But I fail to see even a cosmic injustice in this. If this knowledge does not affect how BCers vote, then it doesn't matter. And if it does, then it magnifies Nova Scotian power. It's win-win.

Second, it turns out that quantitative studies provide no evidence that the availability of eastern electoral results affects western voting. The trial court listened to expert evidence on this point and -- as trial courts are expected to do -- concluded that it undermined the government's rationale for the legislation. But Justice Bastarache has shown that this was precisely where the trial court went wrong -- evidence is no substitute for uninformed hunch. Or, in his deathless prose:

The contextual factors are essentially directed at determining to what extent the case before the court is a case where the evidence will rightly consist of “approximations and extrapolations” as opposed to more traditional forms of social science proof, and therefore to what extent arguments based on logic and reason will be accepted as a foundational part of the s. 1 case.

Bastarache uses the terms "logic" and "reason" -- both rather foundational to Western thought -- in precisely the opposite sense that they have traditionally been given. It appears that logic and reason depend not on the best analysis of the available evidence, but on uninformed public opinion:

This evidence includes the Lortie Report, which found that “Canadians feel very strongly about premature release of election results” (vol. 2, at p. 84), and the Decima Research/Carleton University Poll, which found that 70 percent of those surveyed believed in the principle of informational equality, suggesting that a failure to adhere to this principle would harm their view of the electoral system. Clearly this evidence is not conclusive, but the Attorney General is not required to demonstrate an “empirical connection” between the objective and the provision: Harper, at para. 104. Logic and reason, combined with the evidence that is available, establish that s. 329 is rationally connected to maintaining public confidence in the electoral system.

In other words, there is no reason to think that releasing the information actually reduces turnout, but 70% of Canadians tell one pollster that they think it might, so that is good enough.

The reductio writes itself. What kind of protection of expression depends on the expression being approved by more than 30% of the populace? How many Québécois in the 1950s thought it was a good idea to suppress communism and criticism of the Catholic Church? How many Americans like flag burning, or Maoist newspapers?

Finally, Bastarache says the suppression is "only for a few hours", so it is no big deal. Here, the Court shows an (unsurprising) lack of understanding of new media (or, as I prefer to refer to us, "loser obsessives with blogspot accounts"). The MSM can -- at least in theory -- restrict its broadcasting to permitted time zones. The Internet doesn't work that way. If this law is to be enforced, every election is going to require investigations of a whole slew of political bloggers. The RCMP will be poking into pseudonyms, IP addresses and all that other stuff I don't understand. It's going to be ugly.

And for what? There is absolutely no concrete benefit that the federal government was able to establish on the evidence. That's the nastiest implication of this case, by far. The state can suppress political speech without having to show a reason of any kind.

Case Comment of R. v. Bryan, 2007 SCC 12

Photo credit Phillipe Landreville, Supreme Court of Canada collection

What makes the Literati Leftist?

Benjamin Nugent's article on Mark Halperin has inspired a bit of a debate on whether it is true that there are no good right-wing novelists and, if so, what the explanations are.

Exceptions like the older Mordecai Richler aside, it certainly seems to be generally true in Canada that its novelists are either conventional leftists, apolitical or old-style establishment Tories -- with the bulk probably conventional leftists. So the issues are why, and will this change?

One obvious explanation is a materialist one. Writers vote for left-wing parties for the same reason as muncipal workers -- because most of their income comes from the state.

Another explanation arises out of the peculiarities of the Canadian political scene. There has always been a tie between the novel and nationalism. In English Canada, nationalism is even more appealing to literary types because -- at least since Grant -- it is tied to the kind of lost cause elegiac sensibility Nugent suggests is an appealing background for literature.

On the other hand, the centre left is so hegemonic in Canada that one might think its pieties would make tempting targets. And it is a bit odd that the old rural Protestant Canada seems in all our fiction to be treated like an all-powerful force of oppression when it is fairly obviously a culture in decline (making it a tempting object for elegiac treatment, one would think).

Update: Andy the Ectomorph and the mysterious Man Who is Thursday both respond to this post.