Free Speech Then and Now

The Supreme Court of Canada overriding a jury verdict of seditious libel against Jehovah's Witnesses saying rude things about the Roman Catholic Church back in 1950:

There is no modern authority which holds that the mere effect of tending to create discontent or disaffection among His Majesy's subjects or ill-will or hostility between groups of them, but not tending to issue in illegal conduct, con­stitutes the crime, and this for obvious reasons. Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality.

The Supreme Court in 1990:

In applying the Oakes approach to legislation restricting hate propaganda, a meaningful consideration of the principles central to a free and democratic society requires reference to the international community's acceptance of the need to protect minority groups from the intolerance and psychological pain caused by such expression.

A decline of style and substance. What will 2010 bring?

Why are Muslims Becoming More Liberal?

The Pew Global Attitudes Project has tracked a consistent decline among Muslims in support for Al Qaeda, and an increase in support for liberal democracy since 2001. Different countries vary a lot, and there are still millions of people who think Bin Laden is great. And you don't need a lot of people to form a terrorist threat (although the bigger the base the easier that is). Moreover, there is a lot of belief that 9/11 was a fake, that Muslim economic woes are the fault of imperialism and so on. But everywhere, things seem to be going in the right direction.

I don't think left or right would have expected this. Certainly one of my main reasons for opposing the Iraq war was that it would make these numbers worse. And Muslims didn't like the invasion and occupation of Iraq any more than I thought they would. The neoconservative hope that grateful Iraqis would make everyone else think the US was wonderful did not -- to put it mildly -- unfold as expected.But even though "George" and "Tony" are never going to be fashionable names for Muslim boys, things have not gotten worse since 2003. The direction of these results also casts doubt on the view that illiberalism is inherent in Islam, a view that seems more common now on the right than it did back when W. was popular.

So why is this happening? Is Fukuyama right after all?

Double Standards Department

Ethiopundit makes the excellent point that what Mugabe had done over the last few months is materially identical to what Meles Zenawi and the EPRDF did in Ethiopia in 2005. Bob Geldof made a bit of a stink at the time, but that was about it. And of course, the communist EPRDF quickly became a key ally in the War on Terror.

McCain is right about Viagara and Birth Control (Even if He Doesn't Know Why)

The lefty blogosphere has been trying to give McCain a tough time about voting against mandating that health plans that include Viagara must include birth control as well. One can't expect them to understand economics, but even if you don't, surely both products are equally valuable to both parties in a heterosexual couple? I suspect some age bias.

Here is what I said at Ta-Nehisi Coates' (very good) blog:

I sort of doubt that birth control vs. Viagara is a man vs. woman issue. It's more of a generational issue. Heterosexual women with older partners benefit from Viagara as much as heterosexual men with younger partners benefit from birth control.

The legitimate argument for McCain's stance is the following. We want birth control (and Viagara)to be as cheap as possible. Mandating that birth control be part of a health insurance plan doesn't (necessarily) make it cheaper. You now have to add the costs of administering the insurance claims to the manufacturer's costs and profit.

Liberals tend to think, "Ah, but if it is insured, the employer pays for it instead of the employee." That's actually wrong. Benefits are just part of your overall compensation. If the costs of drug plans go up, then (all other things being equal), your take-home pay is going to be less. So you pay, one way or the other.

I suppose birth control could be part of a publicly-funded universal drug benefit. It isn't in Canada or anywhere else that I'm aware of, so I don't think this is reasonable.

But what about Viagara? Why should it be insured? I would object to a mandate there too, but it's at least possible that there is an overall gain to insuring it. Erectile dysfunction is a risk that only happens to some people (although it is pretty common at a certain age). So maybe employees as a group are better off spreading this risk across the group, even if it means higher unit costs.

Anyway, neither Viagara nor birth control should be mandated, since that just means paying more for sex.

How McCain could still win

I realize it's chicken to hedge your bets so soon, but maybe Maliki has given McCain a way out. The Iraqi government is asking for a date certain for withdrawal of US and allied forces. McCain said a year or so ago that if that happened, of course the US would leave.

So now McCain can leave while declaring victory. Iraq has uninspiring elected politicians instead of psychopathic fascist ones. The price in resources and lives is difficult to justify, but, being human, Americans will be inclined to do so -- as long as they know they are getting out.

As I've argued before, "victory" and "defeat" are category errors in Iraq, so McCain would have the benefit of having a position that is logically equivalent to Obama's while being psychologically superior.

McCain Calls Social Security a "Disgrace"

It's over. We can all obsess about something else.

Is Knowledge a Type of Belief?

When I was an undergraduate in philosophy, everyone knew that knowledge was a kind of belief. The only issue was what kind of belief (was it "justified, true belief" or something else. "S knows that p" entails "S believes that p", although not the other way around.

The interesting blog Experimental Philosophy has a result that suggests many people intuit otherwise. Apparently, people given a scenario about a corporate chairman causing damage to the environment are more likely to agree that the chairman "knew" harming the environment was wrong than that the chairman "believed" harming the environment was wrong.

Is this just a bias, like when we are told that Sandra is a strong feminist and are asked to evaluate which is more likely, "Sandra is a Christian" or "Sandra is a liberal Christian". People will say the latter is more likely, contrary to fundamental axioms of probability.

Or do people have a different conception of knowledge?

Come on baby, get in the road

I agree with Yglesias that the recent Republican attacks on Obama for being a "flip flopper" and moving to the right will likely count as one of the biggest own-goals in the history of American politics. The centre (or "center") is where it's at. McCain could have won this thing on one strategy alone: he's in the middle (not like those other R's) and Obama is a crazy radical with nice speeches.

If Obama is a normal politician who will pander however he needs to, then the median American voter will be relieved. It's time to give the Dems a try. It might be interesting to have a black guy who writes books. McCain's old. But that same median voter has (reasonably enough) some lurking suspicions about this dude. McCain and the Republicans telling you he is just an opportunistic office-seeker like all the others will just reassure those suspicions.

And could we end the "Rove proved that you don't need the centre" crap. First, that is not really how either 2000 or 2004 worked. Second, to the extent that Rove tried a mobilize-the-base strategy, how did that work out for the GOP? One voter switching in the middle is worth two on the edges deciding not to vote or vote for a third party, and there are more voters in the middle.

Is Quasi-Contract Really Dead?

Another book I have recently finished is the second edition of Peter Birks' Unjust Enrichment, which he completed just before he died. Professor Birks made a late conversion to what is now the Canadian approach to non-consent non-wrong based private causes of action -- namely, that we should treat every transaction in which D benefits and P loses as presumptively reversible to the lesser of the benefit or loss. Contract, gift and statutory transfer are all just exceptions to the borader rule. That is a departure from how the common law traditionally dealt with the same issues by presuming gains/losses fall where they lay, but using defined categories of "monies mistakenly paid and recieved", practical compulsion and so on to provide for exceptional reversal. Birks is also "Canadian" in separating out gain-based remedies that do not require any corresponding loss from the law of unjust enrichment.

In one respect, Birks is triumphalist about the success of civilian-style unjust enrichment. He says no one will ever again write a book entitled "Quasi-Contract" because liability for benefits provided under mistake, compulsion, necessity and so on has been completely liberated from implied contract theories.

I wonder. It seems to me that there are a number of reasons non-consent non-wrong based liability will always be closely tied to contract:

*We are always going to let defendants get out if the matter was something the parties could have contracted about. If I mow your lawn before I negotiate a price, you are never going to have to pay unless there was some good reason we couldn't agree to an express contract.

*Unless the benefit the defendant received was cash, we are always going to have to value it somehow, and the only way to do that is to think what would have been agreed to. That inevitably brings the implied or hypothetical contract back in.

*Contract law itself will always have to deal with implied or hypothetical bargains, as well as express ones. Think about any real contractual dispute. If the parties expressly agreed who was going to take on the risk or cost at issue, then you wouldn't expect litigation, other than merely for enforcement. If there is serious litigation, that is because the parties intentions are in doubt, and the judge/arbitrator is always going to be reasoning abut what they "would have" done if they had turned their mind to the eventuality. So inside every express contract is a million implied or hypothetical contracts. And the law of what we do when there is no contract at all should develop alongside what we do when there is a contract but it doesn't deal with the subject matter of litigation.

So Birks' triumphalism is premature. Implied/hypothetical contracts are as hard to banish from practical litigation as from political theory.

Self-Demonization

I don't want to give the impression that Zizek is an idiot. This is pretty sharp, for example:

The politically correct version enacts a weird reversal of racist hatred of Otherness -- it stages a kind of mockingly Hegelian negation/sublation of openly racist dismissal and hatred of the Other, of the perception of the Other as the Enemy which poses a threat to our way of life. In the PC vision, the Other's violence against us, deplorable and cruel as it may be, is always a reaction against the "original sin" of our (white man's imperialist, colonialist, cetc.) rejection and oppression of Otherness. We, white men, are responsible and guilty, the Other just reacts as a victim; we are to be condemned, the Other is to be understood; ours is a domain of morals (moral condemnation), whilst that of others involves sociology (social explanation). It is, of course, easy to discern how, beneath the mask of extreme self-humiliation and self-blame, such a stance of true ethical masochism repeats racism in its very form: although negative, the proverbial "white man's burden" is still here -- we, white men, are the subjects of History, whilst others ultimately react to our (mis)deeds. In other words, it is as if the true message of PC moralistic self-blame is: if we can no longer be the model of democracy and civilization for the rest of the world, we can at least be the model of Evil.

Where is the Workers' Country? Samurai Japan?

I have confirming evidence that the only coherent anti-capitalist stand in our Fukuyamist/Grantian age is conservative or reactionary.

I just finished reading the latest from Slavoj Zizek, the too-cool-for-school intellectual leader of academic communism. Zizek's proclaimed goal is to somehow "repeat" Lenin, while acknowledging reality. He rehabilitates Robspierre, Stalin and Mao through the use of the apologist paradox perfected by Chesterton.

Zizek's too smart not to see that it is capitalism that is the genuinely revolutionary force in the world, and that the genuinely mass-based hostility to it arises precisely from this fact. But he doesn't want to do anything as uncool as oppose, say, genetic manipulation of the human germ line. So he retreats into an overtly reactionary fantasy (not that there is anything wrong with that):

In the early seventeenth century, after the establishment of the shogun regime, Japan made a unique collective decision to isolate itself from foreign culture and to pursue its own path of a contained life of balanced reproduction, focused on cultural refinement, avoiding any tendencies towards wild expansion. Was the ensuing period which lasted till the middle of the nineteenth century really just an isolationist dream from which Japan was cruelly awakened by Commodore Perry on the American warship? What is the dream is that we can go on indefinitely in our expansionism? What if we all need to repeat, mutatis mutandis, the Japanese decision, and collectively decide to intervene in our pseudo-natural development, to change its direction?

In other words, the historic task of the left is to stand athwart history, yelling Stop.

Happy Independence Day, America

In the spirit of harmony and friendship, I won't revisit the merits of the whole stamp duty dispute. Suffice it to say that as a descendent of United Empire Loyalists, I agree with Matthew Yglesias.

Canadian fact: According to highest legal authority, there is no single day on which we became independent. (Anyone saying April 17, 1982 should be summarily shot.) Instead, we were in a quantum state of sovereign indeterminancy for 12 years. According to the Court in 1967:

There can be no doubt now that Canada has become a sovereign state. Its sovereignty was acquired in the period between its separate signature of the Treaty of Versailles in 1919 and the Statute of Westminster, 1931, 22 Geo. V., c. 4

Canada Day Thought

Shorter Canadian political elite: Canada is among the most successful societies in the world. It is therefore morally imperative for it to abandon everything that made it that way.

Supply-Side vs. Demand-Side Theories of Liberal Exegesis

"Anti-realist" gives a quantitative version of his charge against Islam:

That said, of course there are still things in the text that a decent Christian will have trouble rationalizing. My claim is just that he'll have lot less trouble than a decent Muslim.

I think "decent" is a bit of a distraction here. I would interpret "decency" to refer to ordinary interpersonal morality, rather than ideology. Plenty of decent people believed and believe in the legitimacy of religious coercion. Some of them were saints. However, decent people can be a political or military threat. What we really want is an ideological transformation such that as many Muslims consider liberalism (broadly understood) as consistent with their ancestral faith as Jews or Christians do now.

If we substitute "liberal" for "decent", then we have a supply-side theory of illiberal religious exegesis. There are four kinds of exegesis of the texts: liberal Christian, illiberal Christian, liberal Muslim and illiberal Muslim, all of which exist, but with a negative correlation between liberalism and Islam. Anti-realist's theory is that this is because it is costlier to produce liberal Muslim exegesis (in cognitive dissonance or some other currency) than to accomplish the same trick for Christianity or Buddhism.

The alternative view would be that the greater relative salience of liberalism in Christianity is demand-, rather than supply- driven. On this view, cognitive dissonance is not a great obstacle to the religious beliefs of most people. For non-religious reasons, Christians want more liberal religious beliefs than Muslims do. If the forces making Christendom more liberal act in the Muslim world, they will (and have) increased the demand for liberal exegesis of the Qu'ran.

What's the deal about Islam?

"Anti-realist" and Marnie Tunay are having an argument about Islam in this comment thread. (As so often happens, the argument is tangentially related to the original subject of the post, which I think was about young offenders.) I wanted to weigh in, and hopefully a new thread will emerge.

Sciency types make fun of academic philosophy, often with reason. But sometimes it really does seem like conceptual work has to be done before we know what we are disagreeing about. So it is here. No one can really dispute that Islam-as-historical-phenomenon involves some unjustifiable violence and sexist oppression. On the other hand, the same can be said of Christianity and Buddhism. Scientific materialists have to explain away Stalin and Mao. Since the decision in WIC Radio v. Simpson, I can even point out that New-Agey Nietzschean post-Christians have some explaining to do.

And, at least in the context of Christianity, I can cite text. In addition to Augustine and Aquinas on religious coercion, there is the OT. Joshua made Mohammed look like a wimp. Opening randomly, I see Josuha 8:24-29:

When Israel had finished killing all the men of Ai in the fields and in the desert where they had chased them, and when every one of them had been put to the sword, all the Israelites returned to Ai and killed those who were in it. Twelve thousand men and women fell that day—all the people of Ai. For Joshua did not draw back the hand that held out his javelin until he had destroyed all who lived in Ai. But Israel did carry off for themselves the livestock and plunder of this city, as the LORD had instructed Joshua.

So Joshua burned Ai and made it a permanent heap of ruins, a desolate place to this day.

So what claim is "anti-realist" making about Islam?

As for Marnie, she claims that the law requires that the person who asserts a claim prove it. That is true -- at trial. But lawyers also have processes for striking pleadings or for giving summary judgment, where the person disputing the claim has to show that it is without merit. Ms. Donohue did not have to prove that her ginger beer had a snail in it, but only that it wasn't crazy to sue if it did. And it seems to me that if you are going to say that certain claims should be subject to legal sanction, you face as big a hurdle.

It also strikes me that one concept that seems completely inconsistent with the Qu'ran is invoking a secular norm of religious equality to prevent examination of the truth claims of religious practices. The idolators the Prophet railed against did not mind the worship of Allah -- they just thought Al-lat and the Sun and Moon should be respected as well. Certainly, no one should be permitted to offend their worshippers. It is easy to imagine the Meccan Human Rights Tribunal levying a stiff fine for aggressive monotheism.

Argumentum ad Hitleum not actionable: blogosphere saved

According to the Supremes it is OK for BC talk radio deity Rafe Mair to compare local anti-gay activist Kari Simpson to Hitler and the KKK. The trial judge thought there was an implication that Simpson approved of violence against gays and lesbians, which she doesn't -- however let Mair off on the basis of the "fair comment" defence. The Court of Appeal disagreed, thinking such allegations are beyond the pale, but the Supremes tell us that we might as well get used to unregulated twenty-first century discourse, because they're not going to do anything about us. Godwin's Law is not the law in Canada.

I tend to agree with the concurring justices that when a loudmouth compares another loudmouth to Hitler there really is no defamatory implication that the compared loudmouth wants genocide. But maybe I spend too much time on blogs.

Presumably, if there is an analogy between defamation against individuals and "hate speech" provisions about identifiable groups, then comparing Islam to fascism would be OK. Unfortunately, there is -- as yet -- no doctrine of fair comment in the tribunal jurisprudence.

Religion of Peace?

In the comments, "anti-realist" argues it is false that Osama bin Laden's actions are contrary to Muslim principles.

I respond:

The trouble with your point is that it is TOO realist about "Islam" as an entity. When someone says, "Bin Laden has nothing to do with real Islam", they are not making an empirical assertion. They are engaging in a speech act. They are saying, "Muslims ought not to engage in violence against innocents, and those aspects of the Islamic tradition that assert this should be emphasized in comparison to those which do not."

Saying this speech act is false is like saying "give peace a chance" is false (or "unite against the oppressors of our people" is false). It is a category mistake.

The real objection to Bush is that "Bin Laden is not a true Muslim" is a speech act only available for an insider.

As Uncle Karl would say, "The non-Arabic-speaking bloggers have interpreted Islam in various ways. The point, however, is to change it."

Posner Slams Black

Posner's Opinion in the case of US v. Black, Conrad is here.

B.C.E.

It appears that the forces of good (and shareholder value) prevailed in B.C.E. It's not up on the University of Montreal Website yet.

O.B.G. Limited Again

A while back, Andy suggested I should comment on the House of Lords' decision in OBG Limited. I did read it, but then got off on a tangent about inducing-breach-of-contract, which is as tangential to the main decision as products-liability law is to the plot of Strange Brew.

The classic common law is a very market-oriented thing. And so, in general, it does not protect against competitive injury. And If A failed to perform her contract with you, it encouraged you to sue A, not somebody else who may have caused the dealbreaking. However, there are murky exceptions in the form of the "economic torts," most of which were used to deal with the nascent British Trade Union movement, although the odd shady opera promoter was manhandled as well.

Lord Hoffman does a bang-up job of going through the cases and extracting the principle that P can sue D if D intended to harm D and did so using illegal means. Although that tedious British analytic philosophy comes in handy as his lordship sets out what "intention" means here, with much less fuss than our courts are prone to.

Lord Hoffman and Lord Nicholls of Birkenhead get into a bit of a set-to over the scope of illegal means. Lord Nicholls wants to include any violation of statute, while Lord Hoffman is only interested in common law wrongs against third parties. So if I decide to improve my share of the widget market by scaring your customers with guns, or blowing up your suppliers' widget factory, Lord Hoffman would let you sue me. But if I just violate the EU Widget Manufacturing and Distribution Directive, I won't face worse than the penalty the public law has in store for me.

The Pithlord agrees with Lord Hoffman here. If something that was legal at common law is made illegal by the will of the politicians, then it is to the will of the politicians we should look for the consequences. If they didn't think to put in a civil right of action, then there is no reason for one. In Saskatchewan Wheat Pool, our highest court (rightly, in my view) rejected the idea that breach of statute was inherently actionable. However, Sask. Wheat Pool also says that compliance/non-compliance with a regulatory standard can be presumptively persuasive evidence of whether the defendant acted "reasonably". So too, it may be that some modern statutes (at least those that have clear victims) can help give content to what is trespass, battery or assault. With that caveat, though, I'm on Lord Hoffman's side.

On the other major disagreement, on whether conversion can apply to choses in action, I have to prefer Lord Nicholls. OBG Ltd. was mistakenly put into receivership: the defendant took over all its property and all its contractual rights. The question was whether OBG could sue for damages. If someone takes your property (even innocently, but without your consent), then you can sue. What about "taking" your rights under contracts? It seems to me that these are essentially the same: they are my stuff. Only real law nerds even know whether bank deposits, for example, are contractual rights/choses in action or personal property. As Lord Nicholls points out, if intangible rights are represented in a document, and the document is appropriated, then there can be a suit in conversion. On this point, the majority of the Law Lords seem to just engage in reactionary fear of any change at all, rather than reasoned response.