Tuesday, December 15, 2009

There is no such thing as justice on the cheap; the attempt to provide the poor with "cheap" justice necessarily cheapens justice for all

Michael Coren is a smart guy; yes, some of the things he says get my blood pressure up because he has a habit of playing devil's advocate with his guests and thus, in apparent seriousness, logically controverts positions he has previously adamantly held. But still, he says a lot of wise things.

Yet I just watched a youtube of his recent discussion of the Alberta Court's decision on the Stephen Boissoin/Alberta "Human Rights" Commission case - that great travesty of justice, perhaps the greatest scandal to legal due process and justice in Canadian history - and the common sense of Coren and his guests (well he does have one righteous guest, described as an "activist",  without the sense to think other than that she knows just which kind of "hate" speech should be sanctioned with fines, as if she could never be on the wrong side of the powers that be in Canada, but I digress...) strikes me as nonsense.

Their common sense goes like this: well, sure we've now (in the light of Boissoin, Steyn, Levant, et. al.) learned the lesson that Human Rights Commissions should not be allowed to go anywhere near the policing of freedom of expression, because the Commisisons have been proven to be staffed by ideologues, arbitrarily asserting the power of the state in their official pronouncements, and with no ability to respect legal due process (for both personal and institutional reasons). But nonetheless, the argument goes, Human Rights Commissions are a good thing if they stick to their original purpose, which was, supposedly, to protect people who have been "discriminated" against in the pursuit of empoyment of housing.

Now even if one believes that business owners and rental property owners should not have the right to "discriminate" (whatever the many things that can mean in practice) in the exercise of their property rights (which don't exist in any full sense in Canada, I'll admit) -  I don't believe we should hold this as any kind of general rule but this is a topic for another day - why is it that much of Canadian public opinion maintains the common sense that Commisions and Tribunals, which they admit are incapable of providing justice or due process in respect to "hate speech" or "free speech", are nonetheless at least minimally capable of doing so in other areas?

People like Coren argue that people who have been discriminated against in fields of employment or rental housing can't go to the courts because it's too expensive for them, in most cases, so there needs to be free recourse to "human rights" commissions.  I'm wondering why, if people are so concerned about the rights of the poor, they don't just argue well, instead of publicly funding the large "human rights" industry in Canada, with its thousands of employees, we don't just hire a few more judges and lawyers and provide those with prima facie plausible  complaints of "discrimination" free legal representation to make their case in a proper court of law, with all the protections of due process and all the standards of evidence and logic the courts uphold? It's assumed this would be much more expensive, but I'm not sure that this wouldn't turn out to be cheaper to the taxpayer than the present "human rights" bureaucracies, given the amount of invidious discrimination in Canada; but even if it weren't cheaper, why are we not willing to pay the price for full and proper due process for all?

I think people don't raise this kind of question because, at the end of the day, "common sense" in Canada remains of the view that poor people, and - in the awful PC expression - "people of colour", who feel victimized should have an easier time attacking businesses and the propertied classes than the latter should have defending their interests.   It's ok if a McDonald's franchise owner gets his property rights (such as they are in Canada) lynched by some "human rights" official who gets to adjudicate an employee's complaint, based on the whims of her victimary "common sense" (I won't try to argue the point now, but I think it would be foolish to believe that our "human rights" law has developed a truly disinterested system of adjudication and procedure); but yes, it is a supreme scandal if Stephen Boissoin is told he can't make any "disparaging" remarks about homosexuals for the rest of his life.

Why is this "common sense", even on a "conservative" talk show like Michael Coren's? The despairing side of me thinks it is because those public "conservatives", or classical liberals, who have gotten used to appeasing the gods of our reigning victimary ideologies, still feel they can hold on to some more rigorous defense of freedom of expression. Perhaps they don't find this so difficult to do because "free speech" is still for some on the left a respectable rhetorical cause - the left who forever frill in declaring themselves, amidst the ideological near conformity of the universities, "public service" unions, and "activist" "communities", brave enemies/victims of some mythical "McCarthyism". This would be notwithstanding that, in much daily practice, political correctness and victimary ideology is pretty much all that the left ever any longer talks about and so its authority in such matters is something fiercely defended. And so the idea that maybe, say, a Jewish business owner should have the right to choose not to employ a Muslim (given fears, reasonable or not, of Islamic antisemitism) is yet unimaginable.  How dare I even imagine it!!

Or maybe what I'm talking about is just the pragmatic common sense that in this day and age you can't really shut people up on the internet - and it's best just to ignore all those with bad ideas, as we are mostly all so instantly forgettable nowadays  - unless you're going to sign on to the most appallingly transparent forms of arbtrary "justice", and use sledge hammers against ants; and that kind of performance just isn't good for anyone's political causes.

More generally, I think the problem is that few in Canada today have any coherent conception of what a human right is or where it comes from. Of course we're not alone, at a time when we hear about Germany imprisoning fathers who refuse to send their children to "sex education" classes that the state, with no sense of humour, no sense that it has become the all-consuming Nanny - calls "My Body Belongs to Me" (HT: Walker). Or when we hear about the great expense to which the Australian "human rights" authorities have gone to rule that a woman does not have the right to offer women-only vacation tours, (HT: Catfur) on the grounds that these would be discriminatory to men (as if that weren't their very point, as if discrimination might not sometimes be a good thing, an idea they seem to have been programmatically incapable of considering).

But again I digress. We have no hard conception of where human rights come from absent some conception of how any aspect of culture is generated, anthropologically. The great value of Generative Anthropology, as I have variously suggested at this blog, is that it provides a rigorous hypothesis (or now, perhaps, hypotheses) of how language or culture could ever have come into existence in the first place, and how this necessarily shared, public, scenic process of our coming into being is re-presented through time, giving us the historical processes in which we have come to discover or develop things like "human rights".

The basic idea of GA is that all culture is engendered as the means by which humans defer their conflicts, in order that they not turn unnecessarily violent. In other words, culture, freedom, rights, come into being because we collectively renounce, or defer appropriation, of some common object of desire. Freedom emerges from collective restraint, from equal sharing in the signs of desire/restraint. We have "human rights" to the extent we have developed the due processes by which no individual, nor any institution of state, can stop us from exercising them. Due process is not some mere means to the provision of justice. It is absolutely integral to it.  If we think the case of some poor "victim" is so compelling that we can do away with expensive and time-consuming legal processes, what are the chances that our resulting Lynch mob will ever develop a firm understanding of justice as a process for deferring everyone's violent desires, instead of just a way of buying into one or another scapegoating myth of who is good and who is evil?

But when we begin to imagine a state that should promise us things the state cannot in reality possibly provide, such as an "end to discrimination" (as if our lynching of McDonald's franchisees, or "homophobes", or "hatemongers" were not itself an arbitrary or mythic form of disrimination) or "equality of outcomes" or "personal fulfillment", we are developing a notion of "human rights" that is not grounded in any rigorous conception of anthropological realities. We are instead developing a Gnostic religion that rejects the normal, the established "hegemony", rejects this fallen world, as somehow insufficient to the perfect vision we must somehow bring into being, by hook or by crook. The fact that "a world without discrimination" is a Utopian idea that can make little sense of any imaginable reality (we can change the bases for discrimination in society, but we must always discriminate in some ways among people) is not of interest to the present "human rights" crowd.

This is all by way of recommending you take a look at how John Robson has argued such a point about our indulgence in "metaphysicial madness", at the recent Free Speech and Liberty Symposium in Ottawa (ht again to The Blog of Walker):

John Robson for Vimeo - Computer from Vlad Tepes on Vimeo.


Term papers said...
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maccusgermanis said...

I watched that clip some time back. It made me think of our Housing and Urban Development here in the States. I forget who, in explaining your Human Rights Councils first made comparison, but HUD more often acts as an advocate rather than a judge. I won't rule out however that their bureacratic authority might have similarly punative effects irrespective of the appearance of a trial. But at least they are more strictly limited to Housing. Which seems to be the half measure toward freedom that Coren would content himself, in regards to the HRC.

You seem to define rights as granted by communal decision. I think it more useful to imagine the possiblities of anarchy, of which we've negatively bargained away for the mutual consent. We've every right until we consider the other. The cummunities that we create can only secure certian rights as pre-eminent over those that we do still retain.

truepeers said...


I don't think rights, such as "freedom of expression" came into existence because one day everyone was silent or wary about what they said, abiding by some uniquely correct code of ritual behaviour, and then the next day they just found a way - with what freedom? - to "make a decision" and contract to protect each other's free expression. We cannot explain our ability to first make a contract by reference to what we presume the contract brings into existence. Chicken and egg... No, the covenants we share must have a less formal, more eventful, origin.

I think the ability to come to a formal understanding of the need or reality of "freedom of expression" must have proceeded from some more tacit ethical understanding that came into existence in some kind of ethical/religious event that revealed that the peace of the community was best kept by people negotiating the meaning of what they held to be sacred. While the kernel of this tacit ethical understanding should be located in a hypothesis of the very origin of all human language, in some founding event of all humanity, the originary ethical understanding would have been variously represented and further understood/developed through a historical series of new events/revelations. In the West, we might associate the more explicit discovery of "freedom of speech" with the Platonic invention of the desire for a metaphysical discussion of "ideas" like "truth", "beauty", "justice". Once you make such ideas, or related metaphysical propositions, the centre of attention in your community - once you make their exchange the basis of keeping the peace - then you implicitly make the need for freedom of expression sacred. But it is not a question of having free speech because that is what we have decided "justice" comes to mean, according to some formal agreement. Rather, it is a question of what the experience of the entire process of talking about "justice" comes to signify to the community: the need for full and free participation in the exchange of ideas. It turns out that Platonic metaphysics doesn't work very well in keeping the peace if people can't freely participate in it. (The "philosopher king" only makes sense to someone who is discovering the value of philosophy for the first time, not to someone who has grown tired of a philosophical dictator.) In other words, the meaning of a "right" is secondary to the process by which it is practised.

Or as I tried very simply to put it in the post, people come to the understanding that we don't have free speech because we have come to some perfect metaphysical formulation that determines justice demands it. No, we have simply come to the understanding that we can have no decent discussion of justice unless no individual or state agent can stop us from having it. Law should be a means of discovery/exploration into the nature of our shared reality, founded in a respect for due process. It should not be an attempt to realize some pre-conceived metaphysical formulation.


truepeers said...

Again, this understanding is a realization of the need for the entire scene on which we exchange our differences; it is respect for what this scene signifies in toto that founds our understanding of the need for free speech, not some discrete decision that has conveyed the meaning of this right to us. Any such "decision" can only be a way of formalizing an understanding that is already implicit or present on the scene.

The problem with "metaphysical madness" is when we try to develop ever more complex formulae to express what we think is already the tacit common sense of the scene, as if we must find a systematic way for the government to end all "discrimination" according to some perfect, wholistic, highly nuanced vision - this is the Gnostic's dreamworld I so often decry.

Today, Canadians have a common sense understanding that certain forms of discrimination are wrong and they generally work accordingly against them. But by the same token their common sense also allows for certain forms of discrimination to occur - how else do you make, for example, a choice about which of a 100 candidates you should pick for a job? Our laws against "discrimination" should thus allow judges to defer to community standards and pragmatic realities and not get involved in attempting to legislate Utopias in terms of some complex metaphysical formulation that presumes to found a Canada without discrimination. For example, today the "human rights" people are lobbying for the inclusion of "social condition", in "human rights" acts as a prohibited grounds of discrimination. But this is to take the Platonic discovery of metaphysics - a genuine achievement in its time - to the point of absurdity where we now propose to keep the peace by forcing us to exchange and negotiate any and all propositions about scandalous discrimination towards one's "social condition". This is to forget that the value is not in the metaphysical formulae or propositions in themselves - there is no great value in the Utopian imagining of a world without discrimination - but in what the free exchange of propositions can and cannot do for the community.

I'm not sure if this answers your comment...

Anonymous said...

Heh. I simply try to avoid this question by being a natural rights theorist, and premising that we 'own' these rights by virtue of our own autonomy - i.e. nobody can stop us from doing something, because they have no ownership of either us or our actions ( unless of course we're causing them or somebody harm ). I think this view dovetails nicely with the idea of a 'contract', as with a business.

Which, by the way, is a concept that the Left doesn't seem to quite be able to grasp. That's why you have somebody like Dr. Dawg ( his was the first name that popped into my head, anyway ) bemoaning some business or other instituting some censorious policy or other, and wondering why the Speechers don't go up in arms about it.

This ignores entirely the concept of ownership - our contract with a business signs over our time. Our time is theirs - from there, they have a say in what you do in your hours working for them. This is not to say that such policies cannot be protested, but it does not mean by any means that they should not exist, because that would mean the death of the contract, and therefore our ability to govern, or sign away, our own behavior.

I went down a rabbit-trail, there. Anyway, I too found John Robson's speech quite fascinating - I hadn't viewed 'Rights' in quite that light before; I think he raised a very good point, and something which bears consideration, even by my fellow libertarians. The state is not a guarantor of rights - it's a functionary of rights. Too often I think that distinction is confused, or perhaps ignored.

truepeers said...


I've probably invoked natural law in one of my arguments regarding freedom of expression; the ability and necessity to make signs really is something fundamental to human nature, on one level. Still, I think it's important to note that saying "hands off" to government, or perhaps your neighbor, is work that cannot be taken for granted in the nature of things. In other words, their acknowledgment of the covenant that guarantees our individual freedom is not simply a recognition of given nature but rather of something rooted in human nature plus historical understandings that to be maintained take the continuous renewal of political work.

On my view freedom is rooted in the active renewal of prohibitions or, better put, sincere renunciations, that limit those who might like to control common objects of desire, be these material or cultural. I don't see these renunciations as being formed through contracts. Rather, contracts develop from the freedom that renunciations, as they emerge in the course of events, allow.

Our freedom of speech, as individuals, requires that of state functionaries to be limited (in their official capacities). So if your accounting of natural law avoids the question of how we must renounce certain controlling desires (while, paradoxically, having the freedom to imagine and share signs of desire in the first place, as we attempt to develop the acceptable means for increasing our shared freedom to pursue and trade in desires), I think it is problematic

I think you're right about the workplace; we cannot treat it, in respect to free expression, as we do the political arena. As workers we have to respect the necessary lead of others - necessary because without it nothing gets done - while politics is where we contest and negotiate terms of leadership. Dawg makes such category errors because the left today has only one card to play: protest a lack of supposed moral equivalencies in the desperaate search for more "victims" of the normal. They are not much interested in pragmatic realities but rather more in how these offend their dream world.

truepeers said...

I haven't yet had time to look at this but it appears we have another sad example from no longer Great Britain of the insanity of the idea that the state can outlaw all "discrimination". In this case, it requires the state discriminate against Jews, by dictating to them the definition of who is and isn't a Jew:

The closeness of the Court’s decision underlines the inherent difficulty in applying the complex modern law of discrimination to an ancient religion, particularly where the UK law of direct discrimination does not allow any breach to be justified, however legitimate the motive.

A majority of the Justices expressed the view that the law may be wrong and Lady Hale signalled that an amendment to the Equality Bill should be investigated.

Nevertheless, notwithstanding the sympathy of the Court, the finding that applying the test of Jewish status is directly discriminatory will have a significant and profound effect on Jewish schools and the whole of the Jewish community. This is why the United Synagogue has supported the School’s case.

Lord Rodger in his dissenting judgment said, “The decision of the majority means that there can in future be no Jewish faith schools which give preference to children because they are Jewish according to Jewish religious law and belief…… Instead, Jewish schools will be forced to apply a concocted test for deciding who is to be admitted. That test might appeal to this secular court but it has no basis whatsoever in 3,500 years of Jewish law and teaching.” He continued “The majority’s decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one can’t help feeling that something has gone wrong.”

From Spengler blog

Seorank Pemula said...

want to know..

Anonymous said...

Any such "decision" can only be a way of formalizing an understanding that is already implicit or present on the scene.

I think this sentence most directly addresses the chicken-egg problem that I had with your post. Man was free, when limitatation was experienced. Some limitations have been seen as beneficial and have thence constituted law.


truepeers said...


Man was free, when limitatation was experienced.

Free in what sense? Is an animal free though his range of action is limited by the instinctual behaviours of self and others in his pack? If freedom is something that requires shared language, imaginative desire, and a community of action, then freedom requires whatever it takes for words and desires and concepts to come into existence (and hence freedom develops in degrees, primitive man would have fewer of them - fewer words, desires, ideas - than we do).

And I don't think you can explain that coming into Being absent a shared desire that becomes significant and memorable, because it has not been instinctually gratified like an animal appetite, but rather because it has run into some kind of road block of human conflict. We make the sign, develop consciousness, as a way of re-presenting what we cannot just appropriate materially. To realize a desire, in freedom, that desire must first be denied, which is to say sacralized and made into a problem to pursue. When we feel that high that comes with a sense of freedom, it's because we've realized something that we previously couldn't do or imagine.

Anonymous said...

Is the individual animal to defer to the packs seemingly pre-existent limitations, once percieved? When did the pack form, and what prevents the choice of solitude? Isn't our more complete concept of freedom more linked to our history of, and continual identification of, percieved limitations? Perhaps I was once wrong to think myself completely free, but the only law to which I am truly bound is that which I voluntarily condone.


truepeers said...


How does an animal "perceive" limitations? He experiences them, to be sure. But can he reflect on them with the kind of consciousness humans have? I don't think so; I think our consciousness requires an ability to share in symbolic language, to signify a communally-imposed, not naturally-imposed, limitation (in other words, one has to be able to signify a social effect - something that has no material existence - and not just refer to the things of the world like an animal signalling a source of food or danger).

If we can't all equally share in the sign of renunciation of a common desire, if we can't signify this freely-shared social understanding, we don't have consciousness. The limitations that the animal "perceives" are not the pack's conscious creation. Rather, the pack is structured as a series of one-on-one relations of dominance/submission. No one speaks to or for the pack as a whole, nor is there any perfect equality of decision making. Thus, I don't think an animal can consciously choose "to leave the pack" though in cases where male animals don't hunt in groups, non-alpha, non-breeding, males may be effectively left outside the pack if they can't assume a dominant role.

As you say, our concept of freedom is linked to our perception of limitations. And as you also note, these limitations require a shared recognition/acceptance or they don't work. We must freely give our consent to them, we must sign off on recognizing/reformulating what is proposed as sacred, untouchable, or it won't succeed in becoming sacred; or it will at the cost of casting non-believers/scapegoats out. I would be wary to equate being cast out with "freedom". It might be a necessary step in that direction - as the story of Exodus emplifies - but as long as one remains alone in one's outness, one can't do much with it. The romantic individual eventually has to find a way back into society or back into the marketplace, by showing them a way to appreciate the values he upholds or pursues, or he has to come to a more humble end, recognizing that he is not so special after all.

The covenant is our shared agreement to protect each other's freedom by restraining our own desires - i.e. it's inherently paradoxical - thus allowing for more complex forms of social interaction and production and group defense, and hence new possibilities for our freedom, our desire, and eventually, perhaps, for our (more or less) shared ability to realize those desires.

Anonymous said...

Truepeers, you said "Free in what sense? Is an animal free though his range of action is limited by the instinctual behaviours of self and others in his pack?"

I don't have the energy right now to really flesh this out, but I've come to believe that the main difference between humans and animals - regarding anything, but especially regarding freedom - is that humans can view freedom as an abstract idea, and animals cannot. Animals are incapable of abstract thought - this is why language, mathematics, all of the higher functions that we humans have over animals, are out of the animal's reach.

I think freedom functions in two senses, then: as an abstract concept, and as more of an actual, physical thing. For instance, to go back to freedom of contract, the freedom to make a contract is an abstract principle, whereas the actual making of one, specific contract is the exercise of our freedom to do so. Animals may be capable of the actual, physical, specific act, but they are incapable of realizing the abstract idea of what they are actually doing.

I dunno - does that make sense?

truepeers said...

For instance, to go back to freedom of contract, the freedom to make a contract is an abstract principle, whereas the actual making of one, specific contract is the exercise of our freedom to do so. Animals may be capable of the actual, physical, specific act, but they are incapable of realizing the abstract idea of what they are actually doing.

-Kind of, Walker: what I think you mean by "abstract principle" is our ability to conceptualize non-material, or non-natural, social phenomena. For example, when I point to a cross, I am not, in the first place, saying "two pieces of wood"; but rather i am signifying something like "putative sign of human salvation". An "abstract principle", like "salvation", is just a way of summing up a shared experience (of salvation), and I would be careful not to think that the abstract principle comes before the experience. Rather, the abstract idea is distilled from a primary experience or event that emerges from the interaction of humanly-significant desires and conflicts.

So I think the animal's problem is not that he only knows how to point his fellows to two pieces of wood, and not to an abstract concept; but also he has no way of signifying or perhaps even experiencing an event of communal/individual salvation. Let's say that the animal group has just survived a battle with a competing group. Do they have a way to memorialize and reflect on that experience, to put up a monument to their dead? I don't think so. In other words, even when they were "experiencing" the fight, in real time, and the relief when it was over, that experience was not consciously structured in a way akin to what we would experience as a moment of divine salvation.

So yes, I would agree that the animals are physically capable of joining together to fight their rival pack. But in what sense is that a "contract", if they have no way of conceiving it as a freely-engaged, or divinely-given phenomenon? I think a "contract" is a social phenomenon that while perhaps rooted partly in natural phenomena nonetheless transcends the natural in some significant ways. In other words, we can't talk of a contract absent an ability to distinguish the immanent world from the transcendent world. I think we have to talk of the animals fighting together in terms of natural survival instincts. Would we say that ants or bees working together have an unspoken contract? I think that would be taking the idea of contract into a domain where it doesn't belong. Physically they work together, but so what? - so what, because if it's not significant in some transcendent way, it's not a contract..

Anonymous said...

Hmm... - that's a good point, Truepeers. Damn - I keep getting sucked into this conversation.

I think a writer that you had recommended to me, Truepeers, commented on something very close to this issue. I think he used the example of, say, an unusual centrepiece on a table. If two people look at the centrepiece, let's say the owner and a guest, the owner will probably be conscious of the guest's confusion about the unusual centrepiece, because, well, it's unusual. So he'll explain the story behind the centrepiece to the guest.

So in a way, that's a shared...experience, or idea, I guess, that we can all intuit. Whereas an animal probably wouldn't be able to intuit someone else's confusion because of the centrepiece, because they don't understand shared concepts like that.

I think that ties in with what you're saying, but I'm not sure if it adds anything...

truepeers said...

Yes, that's right Walker. I just reminded myself of the article you're talking about. It's pointing out the differences in how animals and human infants learn. Chimps can learn from each other about useful things; they can make discrete observations about what another is doing, but that doesn't mean they can divine intent or purpose like humans do in sharing experiential signs. Chimps can't learn in the way children do when the latter become aware of their being present on a human scene of shared attention and intent. So chimps can't ask the "so what?" question. Here's the passage you're talking about:

Let me emphasize this difference between perceptual events and the joint attentional scene. Animals can of course focus their attention on discrete objects or events in the world, as when a cat tracks the movements of a mouse, or a chimp warily eyes the presence of a male rival. In the joint attentional scene, however, the child is not merely paying attention to the object, but to someone else's attention toward the same object. In other words, the child grasps that the significance of the object is mediated by the attention of the other. It is this capacity to separate the other's intention--his or her internally represented goal--from the perceptual reality of the object that distinguishes the joint attentional scene from otherwise superficially similar perceptual scenes. The child learns that the adult's intention to the object is distinct from its own intention toward the same object. Moreover, in making this distinction between self and other, it lays the foundation for participating in an intentional relation that is truly collective or intersubjective, because in recognizing the difference between the other's intentionality toward the object and the object itself, the child learns to take a perspective on the object distinct from its own. The child is now imitating a particular intentionality toward the object that is transposable to other scenes in which the object may appear. Tomasello calls this "role reversal imitation" (105) because it implies that the child is able to grasp that an adult's intentional stance toward an object is something that can be adopted by the child itself. This is something we do all the time--indeed, whenever we use language. For example, suppose you tell me that the peculiar thing on your dining room table is a "grazza." Later, when my wife walks in the room and makes a face while staring at the peculiar object on the table, I turn to her and say, "Oh, that's a grazza." I have not merely imitated the word, I have also reproduced your intentional stance toward it. That is, I have recreated the joint attentional scene by adopting your perspective, and this time I have reversed the roles because I am now instructing someone else, as you had instructed me before.

Anonymous said...

Ah yes - there it is. I think I've got the esssay saved away somewhere, but you know how it goes. These things, unfortunately, get buried.