Tuesday, October 31, 2006

No Guts, No Glory

OK, I'm going to go out on the limb and make a "Democrats are going to kick butt" prediction for the midterms next week. My thinking is that the "Likely Voter" models are based on previous elections, and this isn't going to be like them.

So I see the Senate with 50 Dems (including Lieberman) with 49 Republicans and 1 independent.

The Dems will pick up 30 seats in the House, which would roughly reverse the current standings.

(Comments ridiculing my prognostication skills are welcomed. But if you don't put something down yourself before next Tuesday, expect to be met with chicken noises.)

Sunday, October 29, 2006

Iggy's Popped

Much as we amateurs and commentators would like to pretend otherwise, professional politics is skilled work. It takes years of practice.

It was therefore always rather arrogant of Michael Ignatieff to imagine he could start right at the top, particularly in a country he has not lived in for three decades.

The mess he has made of recognizing Quebec as a "nation" is evidence enough.

First, his supporters in the Quebec branch of the federal Liberal party make a big show of a resolution calling for recognition of Quebec as a nation in the Constitution. His people claim this as a big victory over Dion and Rae.

But once English Canadian Liberals react to this affront to the fundamental principles of Trudeauism, Iggy claims he is saying nothing different from the others. He now says he doesn't want quick constitutional change. So he has raised expectations among nationalists, and then said he will not meet them.

I want to return to the substantive issue later, but the man clearly is not a reasonable alternative Prime Minister. IQ and looks are no substitute for experience.

Saturday, October 28, 2006

Khawaja and the dangers of ideology

Last week, Mr. Justice Rutherford of the Ontario Superior Court of Justice, as a result of a constitutional application by an accused terrorist, severed clause 83.01(1)(b)(i)(A) from the Criminal Code.

What does that mean, you ask? Before last Wednesday, there were two ways to prove that an act or failure to act was a "terrorist activity" -- the first was to show that it was one of a number of offences under international law. The second involved proving that it was "in whole or in part, for a political, religious or ideological purpose, objective or cause." That wasn't enough, of course. Lots of perfectly lawful things -- arguably including Pith & Substance -- are in whole or in part for political, religious or ideological purposes. A terrorist activity has to kill somebody, or endanger their life, or cause serious risk to public health or safety or -- at bare minimum -- cause serious property damage or disrupt an essential service in a way that might do one of those things. But, before Wednesday, if you did one of those bad things just for kicks, or for love or money, it wasn't terrorism. Now it is.

The first thing I noticed in reading Justice Rutherford's decision was how lackadaisical the process of constitutional litigation has become in this country. No expert witnesses were called on the critical subject of the policy reasons for distinguishing religious and political violence form other forms of violence. Instead, the judge was just given large amounts of undigested reading material -- without objection from either side. None of the assertions in the academic literature (which is largely unsympathetic to national security concerns in this country) were subject to cross-examination. We wouldn't run a significant personal injury case this way, but the government appears willing to let a major part of its anti-terrorism policy be shot down on the basis of garbage evidence. The judge rightly complained about this. Heads ought to roll at DOJ.

Traditionally, the Anglo-Canadian criminal law has ignored motive in deciding whether a particular crime has been made out, although it is often important in sentencing. Personally, I am unable to see much of constitutional significance in this distinction. The law has never thought that motive was irrelevant to the seriousness of criminal activity, and I can't see why the state should be prevented from defining certain crimes in terms of motive.

On the other hand, I can't dismiss the idea that inquiry into the motives of people committing what are admitted to be criminal acts creates some risks to freedom of expression and religion. This is a problem libertarians have pointed out -- with little effect -- in relation to hate crimes. Assault is already illegal, but if it is a bigger deal because it is motivated by discriminatory beliefs, then it is, of course, relevant to ask people about their beliefs during trial. This may well be unfair to people with nasty -- but legal -- opinions.

On the other hand, it is -- I think correctly -- argued that racial violence has the unique potential to dissolve civil society in a multiethnic state. If it isn't ruthlessly crushed, and subject to specific sanction, Toronto or Vancouver could look like Sarajevo or Beirut.

I suspect the same thing is true of terrorism. It has an effect on social order that random violence does not. As Solzhenistyn remarked, without an ideology, Shakespeare's villains all stop at about a dozen corpses. Human nature doesn't need religion or politics to generate violence -- greed, lust for power or jealousy will do -- but without religion or politics, it is just retail violence.

Surely, an expert could have told Mr. Justice Rutherford as much. But he couldn't see it on his own.

Friday, October 27, 2006

Pharmascience Inc. v. Binet, 2006 SCC 48 -- Who's in charge of handing out leave here?

In Pharmascience, the Supreme Court of Canada decided whether the word "on" in s. 122 of Quebec's Professional Code means every governed professional or everybody. If it's the former, then syndics (officials in charge of professional discipline) can order the production of documents from anyone, whether they are part of the profession the syndic has jurisdiction over or not.

The Quebec Court of Appeal thought the grammatical meaning of "on" in context was ambiguous, and invoked the principle that legislated search power must be clear to prefer the more restrictive interpretation. Justice LeBel, with a majority of the Supreme Court of Canada, disagreed.

The Pithlord speaks what can be gently referred to as "Western Canadian High School Francais." I can follow Stephen Harper in full oratorical flight, and could tell you the score in a game carried only by Radio-Canada. But I am not going to pronounce on the proper reference of the pronoun "on", especially since I suspect it is a Gallic plot to confuse Anglos in revenge for Agincourt. If the Quebec Court of Appeal think the linguistic issue is murky, I have no reason to disbelieve them. But it's LeBel's native language too, so what do I know?

But you don't get to be a contender in the "Best New Canadian Blog"* category by being shy to offer an opinion on a subject just because you don't know anything about it. And, after some reflection, I found I did have an opinion after all: this decision should never have existed in the first place because leave shouldn't have been given.

As the Canadian legal blogosphere's most prominent ectomorph has pointed out, all is not well with the mix of cases the Supremes take. Bar association meetings and Continuing Legal Education events across the country are filled with moaning about how the Nine don't resolve the pressing issues of somebody's practice, except when they are about how the Nine screwed everything up in their latest unfathomable pronouncement.

Now, to be fair, the time of the Nine is a scarce thing. They have to refuse to hear more cases than they can hear. So if we are going to be constructive critics, we have to bitch about what they are hearing, as well as what they're not.

And that is one of the things that makes Pharmascience so mystifying. If there is one type of litigation that can safely be left to provincial appellate courts, it is litigation that turns on the interpretation of ambiguous provisions in provincial statutes. No one else cares, and if the court has really screwed it up, the legislature can fix it relatively easily.

So no thumbs this time, but a blank stare of incomprehension.

Case Comment of Pharmascience Inc. v. Binet, 2006 SCC 48

Photo of Mr. Justice LeBel from Supreme Court of Canada collection. Credit Phillipe Landreville

*By the way, how's that going, L? You remember the deal...

Thursday, October 26, 2006

R. v. Krieger -- Thumbs Up

The right to trial by jury is one of those things that Anglos can be insufferable about. The English developed it, and it became a bulwark against tyranny, so we like to bring it up when we are mocked about our spotty complexions.

One implication of a jury trial is that ordinary citizens can occasionally refuse to convict because they disapprove of the law the accused is charged with violating. In the seventies, Henry Morgentaler took advantage of this possibility and was acquitted of violating the provisions restricting abortion then in the Criminal Code, even though he was obviously violating them. The Supreme Court of Canada reversed the acquittal, and found Morgentaler guilty. In effect, the 70s-era Nine found him guilty, even though no jury of his peers would.

Interestingly, Trudeau reacted by abolishing the power of appellate courts to overturn acquittals, as opposed to order new trials. The right to a jury trial for matters where there could be a sentence in excess of five years was put in the Charter. Canada during that era reaffirmed the old English principle of trial-by-jury.

Fast forward to our current controversies. Grant Krieger grew his own marijuana for allegedly medicinal purposes. He was charged, and elected a jury trial. His defence, like Morgentaler's, was the murky common law defence of necessity.

Rather outrageously, at the end of the evidence, the judge told the jury that they had no choice but to find the man guilty. As the Supreme Court quotes the trial judge referring to some jury members asking to be excused:

It is apparent that some of the members either didn’t understand my direction this morning, that is that they were to return a verdict of guilty [Emphasis in Supreme Court of Canada decision]

This is clearly inappropriate for a judge in a jury trial. Many long-winded speeches of dead English jurists could be cited on the subject, but it is unnecessary, since the Crown conceded as much.

The Alberta Court of Appeal -- rather oddly, I think -- thought matters were improved by the fact that the jury deliberated quite a while, notwithstanding the judge's clear instruction that they find a verdict of guilty. The Supremes couldn't see what that makes things any better -- it might make things worse, since it suggests the jury had a lot of doubts about what the judge ordered them to do.

A good day for an ancient right.

Case Comment of R. v. Krieger, 2006 SCC 47

Here are Alex's thoughts on the case. He discusses the jury nullification angle, which I might do something on sometime.

Wednesday, October 25, 2006

Prince Myshkin reviews Richard Dawkins' new book

"I came home in the morning by the new railway and talked for four hours with a man in the train; we made friends on the spot. I had heard a great deal about him beforehand and had heard he was an atheist, among other things. He really is a very learned man, and I was delighted at the prospect of talking to a really learned man. What's more, he is a most unusally well-bred man, so that he talked to me quite as if I were his equal in ideas and attainment. He doesn't believe in God. Only, one thing struck me: that he seemed not to be talking about that at all, the whole time; and it sruck me just because whenever I have met unbelievers before, or read their books, it always seemed that they were speaking and writing in their books about something quite different, although it seemed to be about that on the surface. I said so to him at the time, but I suppose I didn't say so clearly, or did not know how to express it, for he didn't understand."

--The Idiot>, as translated by Constance Garnett

I am quite sure that the God in which Dawkins disbelieves does not exist. I am not as sure -- although it may be true -- that someone believes in that God, and so Dawkins is doing something useful.

But then it is inevitable that our conceptions of the Absolute will fail to actually be the Absolute. The commandment against idolatry is a stern reminder of that. We do not -- cannot -- know as we are "known". Nor are we "known" by a knower like us, or a big invisible all-powerful version of us. I'm not sure how far Dawkins has advance the argument beyond that.

Update: Terry Eagleton makes some of the same points as Dostoyevsky/Myshkin, but in the style of a man trained in Trotskyist and academic-lit-crit polemic.

Imperial Oil Ltd v. Canada -- Thumbs Down

Nothing quite stiffens up the sinews and summons up the blood like a decision on when foreign exchange losses are fully deductible from income for tax purposes.

The Alpha and Omega of the Pithlord's approach to tax policy is Kenneth Carter's* line that "a buck is a buck is a buck." In other words, I am a believer in the Haig-Symons doctrine that income just is increase in wealth plus consumption. Any attempt to distinguish between increases or decreases in the value of assets (capital gains/losses) from other forms of income is doomed to be arbitrary and ad hoc.

But whatever its merits, the distinction is with us. And so, every taxpayer wants to portray good news as a capital gain, but bad news as an income loss. The Man feels exactly the opposite, of course. Since the distinction is actually bogus, this gives a lot of opportunities to tax lawyers to feed their families. If I were a better person (or a tax lawyer), I wouldn't resent this, but I'm not, so I do.

One issue that comes up from time-to-time is whether the foreign exchange gains/losses of transactions conducted in non-Canadian currencies are capital or income losses/gains. The governing principle, I am lead to understand, is that the same characterization that applies to the non-currency part of the transaction, applies to the whole of it. If I buy stock in a Malaysian company, then the whole of my loss--whether attributable to undisclosed financial irregularities by senior management or a tanking Canadian dollar -- is a capital loss. If I buy and sell widgets in Kazakhstani dinars (or whatever), then it's a business loss/gain and is taxable (or deductible) as ordinary income.

Along with this principle (and necessary to make sense of it) is the principle that the only currency for the purposes of Canadian law is the Canadian dollar -- every element of a statutory formula must be translated into loonies.

The Imperial Oil case turned on a type of transaction that is a capital one, but is specifically designated as deductible from income by the Income Tax Act -- the redemption of debt obligations. There's a long and boring story about why that is, but that need not concern us here. Imperial lost some US money buying back some debentures, but because the Canadian dollar fell between issuance and redemption, it lost even more Canadian money. The Rev allowed the non-currency related loss as deductible from ordinary income, but said the exchange loss was a capital loss. In other words, it said the first principle didn't apply.

If those were the rules, the Pithlord would be unconcerned. We could maybe say that the foreign exchange aspects of all transactions are always capital gain/losses. But we don't and never have, so the Rev was wrong, as the Federal Court of Appeal found.

Bad as the Rev's argument was, though, it wasn't as bad as the one that the majority of the Supremes came up with. Instead of abandoning the principle that the characterization of the foreign exchange aspects of a transaction follows the nature of the transaction, they abandoned the principle that Canadian law always uses Canadian dollars. So now the amount of the loss is calculated in US dollars, even though it is defined in terms of two different magnitudes (roughly, the amount the debentures were issued for and the amount they were redeemed for).

The majority quotes one charmingly innumerate House of Lords decision to abandon a rather basic principle and thereby cause reams of confusion. The Court remarks that the principle that all magnitudes must be measured in Canadian dollars isn't in the Income Tax Act, but it is in section 14 of the Currency Act, as both parties apparently pointed out. The majority mentions this, without reasoned response. The principle that "all magnitudes must be translated into Canadian dollars" has been abandoned for "most magnitudes must be translated into Canadian dollars" without any guidance on the appropriate exceptions and without any reason for muddying everything up. In addition to patriotism, as your Grade 7 Science teacher ought to have told you, it is just darn important when measuring things to use the same measure all the time.

Case Comment of Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46

*Someone really should put the Carter Commission report online.

Monday, October 23, 2006

The Fantasy Foreign Policy

Matthew Yglesias makes the sound point that, however bad Bush's foreign policy may have been, it is sanity itself compared to the fevered dreams of the neoliberals and neocons. If the Weekly Standard and the New Republic had their way, the US wouldn't just be in an unwinnable war in Iraq, but in Syria, Iran, Sudan and God knows where else as well. With fantasy troops. However reckless Bush is, he does have to actually implement his policies.

Interestingly, the foreign policy of Tory Canada resembles more closely the fantasy foreign policy of the neoliberal/neocon axis. Who cares if we don't have enough soldiers to meet our commitments in Afghanistan? We can always send sailors instead! No thought is taken for the fate of our navy, because this is Canada where left and right alike view the armed forces as ideological fantasms. We share an illusion of not having any security needs, and therefore treat foreign policy as simply vicarious identity politics.

Naturally, the big foreign policy debate in Canada today -- just as our biggest commitment since Korea has been exposed as a clear overcommitment -- is whether the (dim) foreign minister called his ex-girlfriend a dog. We haven't been a serious country about these matters for almost half a century, but this is a new low.

Update: The Minister of National Defence has announced that the navy will not be used for operations in Afghanistan. No resolution yet on the canine controversy.

Silly Country

Apparently, there are no people in the United States named "Pith Lord". No one with my real name either.

Thursday, October 19, 2006

Riverbend on whether 600,000 really died

I try to avoid mere link blogging, but everybody should read Riverbend's latest. A secular Iraqi cries for what has happened to her country.

(Via Lawyers, Guns and Money)

The Gitlin-Ackerman Manifesto

Todd Gitlin and Bruce Ackerman have put together a manifesto for American liberals in answer to Tony Judt's charge that their tribe has acquiesced in Bush's foreign policy.

The manifesto rightly assails Bush for his violations of international law and the American constitution in how he has prosecuted the "Global War on Terror" and the invasion/occupation of Iraq. Good stuff, but it sits uneasily with the signatories support for the Bosnian and Kosovo wars, neither of which fit in nicely with the UN Charter or Article I, Section 8 of the US Constitution.

I also can't endorse the following statement of vulgar Rawlsianism:

When debating policy in the public square, our government should base its laws on grounds that can be accepted by people regardless of their religious beliefs

I doubt this stricture is applied solely to governments. After all, it isn't so much governments that debate policy in the public square, as politicians and citizens, and it would be an inappropriate limitation on democracy to prohibit the latter from bringing their religious commitments to the public sphere. I'm not sure there even are "grounds that can be accepted by people regardless of their religious beliefs," and dispute that it is acceptable to keep people from asserting religious values in the public square. I doubt the signatories have Buddhists for a Free Tibet or Quakers Against the Death Penalty in mind. But what they ask is basically impossible: in Canada, political scientists have long found that religious affiliation is a better predictor of voting behaviour than almost anything else. You might as well have a manifesto denouncing the tendency of the tides to get your feet wet.

Which brings me to the Manifesto's embrace of reason. I'm big on science, and I agree that Bushian Republicans have a bad record in regard to it, but the insistence by American liberals and like-minded progressives in other countries that equality is an empirical fact, rather than a normative guide, is a significant hassle for scientists. Left-of-centre types have also had non-reason-based objections to economic science in my lifetime.

Don't get me wrong. Bush has been a lawless President, and one unusually impervious to empirical disconfirmation, and most of these criticisms hit home. I intend no moral equivalence. As Daniel Larison -- no liberal by any definition -- puts it, "You can vote for the Republic, or you can vote for the Republicans." But even in a short piece, American liberals show some of their own limitations.

Wednesday, October 18, 2006


Up to the present, the Pithlord has moderated all his comments. For the benefit of the literatus, I will explain that this means that I saw each of them and had to approve them before the general public could read them in Haloscan.

I am going to experiment with unmoderated comments. For now, you can just open up the Haloscan box, type away and press Post. I may have to take further anti-spam measures in the future, but here's hoping that this will work.

This will not be an exercise in free speech absolutism. Contrary to popular belief, when Al Gore invented the Internet, he did not thereby repeal the laws of defamation, uttering threats, advertising non-FDA-approved pharmaceuticals or spreading seditious libels against our sovereign. The right to comment will be subject to such reasonable limits prescribed by the Pithlord as would be demonstrably justified in a police state with me as sole despot.

I won't delete something just because I disagree with it, or it is politically incorrect, but I also won't provide for any right of appeal.

I should note that all my commenters so far have been persons of great taste and discernment. I particularly welcome Fred S.'s objections to my politics and sense of personal self-esteem. Of course, I also enjoy the more like-minded commenters too. Please keep it up!

Tuesday, October 17, 2006

We're Doomed

I always doubted the reports that Bush, just prior to the Iraq War, was unaware that there was a sectarian division between Shi'ites and Sunnis in the country he was planning to invade. Don't get me wrong: I don't like the guy, and am generally willing to believe bad things about him. But it apparently derived from some emigrés he met with at that time. And I have heard from second-order hearsay that Bush in person is actually quite different from the amiable doofus he likes to appear as on TV screens.

But now Jeff Stein reports that a large number of senior American policy makers and national security officials still don't know the difference.

Here's Terry Everett, vice-chair of the House subcommittee on technical and intelligence issues, and apparently a nice guy, with an epiphany he ought to have had a while ago:

“One’s in one location, another’s in another location. No, to be honest with you, I don’t know. I thought it was differences in their religion, different families or something.”

To his credit, he asked me to explain the differences. I told him briefly about the schism that developed after the death of the Prophet Muhammad, and how Iraq and Iran are majority Shiite nations while the rest of the Muslim world is mostly Sunni. “Now that you’ve explained it to me,” he replied, “what occurs to me is that it makes what we’re doing over there extremely difficult, not only in Iraq but that whole area.”

Urban Bias in the John Hopkins/Lancet Iraq Mortality Study

At Mike Dunford's science blog, I asked whether the streets/intersections method of selecting a sample in fact led to an urban bias in the John Hopkins mortality study. A Kevin Donoghue made the following response, which I pass along to you:

Pithlord, the clusters were assigned in such a way that, at the outset, as far as possible every household in Iraq had an equal probability of inclusion. Admittedly an isolated farm or village might have had no chance, but no survey really lives up to the textbook ideal of a random sample. I can't see that a household in a small town containing a hundred homes or so would have been any less likely to get included than a household in Baghdad.

If isolated farms and small groups of houses are very safe/(unsafe) that would bias the mortality estimate upward/(downward), by an amount which depends on the proportion of Iraq's population living in such places. AFAIK that proportion is very small.

I suspect Mike's main reason for de-emphasising that concern is he doesn't know which way the bias (if any) goes. Most likely nobody does.

Update Via Deltoid, here is an interesting take from UK Polling Report.

Monday, October 16, 2006

It's an honour just to be nominated (*cough*)

Some thoughtful soul is hosting a 2006 Canadian Blog Awards.

Just thought I'd mention it.

Innumerate vs. Non-innumerate criticisms of the John Hopkins Mortality Study

There's been some confusion about this in the comment threads. So let me set this out:

*Criticism that the sampling exhibited various biases. (NOT INNUMERATE)

*Asking where all the bodies are. (INNUMERATE).

*Making reference to the wide confidence interval. (NOT INNUMERATE)

*Referring to Iraq Body Count or other media-report-based sample as disproof (INNUMERATE)

*Questioning whether the Sampling Protocols could have been executed flawlessly in the circumstances of Iraq (NOT INNUMERATE).

*Refusing to believe the number because it just seems too high or because there is a midterm election in the US next month, or because the Iraqi and American governments don't like it or because snooty leftists have referred to it. (INNUMERATE)

You're welcome.

Pithlord approved links:

Andrew Gelman

Tim Lambert (any of last ten posts)

The BBC (includes Iraq Body Count criticsms and responses by study authors to other criticisms)

Iraq Body Count's own press release

Mike Dunford, Take 1 (critical of the John Hopkins study) and Mike Dunford, Take 2 (reconsidering some of his criticisms

Dunford Take 2 walks back from his original criticism that the sample was biased to urban areas, although he doesn't say why.

Benedict's Regensburg address and "Radical Orthodoxy"

I am far from learned in the ways of theology, but one thing that struck me in reading Benedict's Regensburg address was the similarity between his themes and those of the "Radical Orthodoxy" theological movement. (The latter is a mostly Anglo-Catholic trend in academic theology with connections to the current Archbishop of Canterbury. Its leading lights are John Milbank and Catherine Pickstock).

This is an interesting fact in part because Radical Orthodoxy is politically leftist, not rightist, and hostile to the "Global War on Terror" (as, of course, Benedict has been).


Luther entertained no such project [as "knowledge by faith alone"]: on the contrary, he broadly accepted the framework of late medieval nominalist philosophy. Now this philsophy was itself the legatee of the greatest of all disruptions carried out in the history of European thought, namely that of Duns Scotus, who for the first time established a radical separation of philosophy from theology by declaring that it was possible to consider being in abstraction from the question of whether one is considering created or creating being. Eventually this generated the notion of ontology and an epistemology unconstrained by, and transcendentally prior to, theology itsef. .. The very notion of a reason-revelation duality, far from being an authentic Christian legacy, itself results only from the rise of a questionably secular mode of knowledge. By contrast, in the Church Fathers or the early scholastics, both faith and reason are included within the more generic framework of participation in the mind of God [...]

"The Theological Critique of philosophy" in ed. J. Milbank et al., Radical Orthodoxy


In all honesty, one must observe that in the late Middle Ages we find trends in theology which would sunder this synthesis between the Greek spirit and the Christian spirit. In contrast with the so-called intellectualism of Augustine and Thomas, there arose with Duns Scotus a voluntarism which, in its later developments, led to the claim that we can only know God's voluntas ordinata. Beyond this is the realm of God's freedom, in virtue of which he could have done the opposite of everything he has actually done. This gives rise to positions which clearly approach those of Ibn Hazm and might even lead to the image of a capricious God, who is not even bound to truth and goodness.


In the year 1277, the Christian West reached its crisis: certain drastic edicts issued by the archbishops of Paris and Canterbury meant that it decided more or less to outlaw the common Hellenistic legacy of Aristotle fused with Neoplatonism, and blended with allegorical readings of the Hebrew Bible, which it shared with Islam, Judaism, and Byzantium. A common culture of mystical philosophy and theology, focused around analogy and ontological participation--—which has also tended to favor social participation--was rendered impossible. The West went in one direction and Islam in another, since Islam, too, inclined in this period to outlaw this perspective. Islam became a doctrinally orthodox, scriptural, and legalistic civilization to the exclusion of dialectics and mystical theology (apart from newly enhanced Sufistic tendencies).

The conventional view is that from that point forward, the West became secular and Islam became theocratic. But that seems to me to be a half-truth. In fact, by abandoning the shared mystical outlook, Western Christian theology started to look more and more itself like Islamic orthodoxy; it started to read the Bible more like the Qur'an, allowing only the literal meaning and construing that meaning more narrowly than it had. The new stress in the fourteenth century, that only God's will makes things true and right, echoed earlier Islamic Kalam theology and some of the ideas of Al-Ghazali.


Dehellenization first emerges in connection with the postulates of the Reformation in the sixteenth century. Looking at the tradition of scholastic theology, the Reformers thought they were confronted with a faith system totally conditioned by philosophy, that is to say an articulation of the faith based on an alien system of thought. As a result, faith no longer appeared as a living historical Word but as one element of an overarching philosophical system. The principle of sola scriptura, on the other hand, sought faith in its pure, primordial form, as originally found in the biblical Word.

The common narrative is the following:

*Patristic and meideval Christianity was characterized by a beneficial synthesis of faith and reason. The critical concept was Platonic "participation" as the link between the created and the creator.

*This synthesis was first disrupted in Islamic thought, where Platonic and Aristotlean conceptions of divine rationality were thought to limit God's freedom.

*The Islamic emphasis on God's freedom as against God's rationality migrated to Europe through Duns Scotus and the nominalist late scholastics (boo!)

*Duns had a huge impact on the Reformation and on modern philosophy and, through it, the scientific idea of rationality and the liberal concept of justice.

*The whole thing leads to a dangerous choice between nihilism and fundamentalism.

*Islam and Western secularism are not opposed -- they are variants of the same heresy.

*We need to somehow get back to the Patristic/medieval way of thinking about faith and reason.

I'm not learned enough to know if Benedict and Milbank are theologically related by common descent or mutual influence. Milbank thinks the counter-Reformation, with its emphasis on the authority of the hierarchy and ultimately the Pope was also part of the unfortunate development of modernity; not surprisingly, that theme is absent from Benedict's lecture.

Much of Milbank's political analysis has the weakness of a lot of Chomskyan critiques -- the West is damned if it does and damned if it doesn't. UNOCAL seeking pipeline opportunities in Afghanistan and American toleration of Saudi norms in the interests of making a buck are denounced in neocon terms, but neoconservatism is denounced as imperialist. Milbank makes some sensible points (terrorists are not like medieval pirates) and some not-sensible ones (" Detailed and objective analyses by Le Monde and many other reliable sources show that what is currently being played out in Afghanistan is not a war against terrorism nor a response to the attack on the Twin Towers, but le nouveau grand jeu de Kipling. Multiple interests are trying to seize control of one of the largest pools of natural resources in the world in the former Soviet and largely Islamic territories to the north. " Dude, there are cheaper ways to get natural resources.) Benedict is a bit more worldly.

But the critical point, which few of my bretheren and sisteren on the secular left have grasped, is that we cannot begin to understand the issues of the day without learning some medieval theology.

Will Kim Jong Il Live to See the New Year?: Kremlinology Today

I still think that if China's loss of patience with the Korean dictator is genuine, he isn't long for the world.

A data point comes from Mr. Spog, who notices this article in the Korea Times. It seems the Chinese media is full of articles about how ancient northern Korean kingdoms were really part of China.

Apparently, this bold new direction in historical scholarship really got underway in 2003. Andrei Lankov, the Russian expert quoted in the Korea Times piece, thinks there are parts of the NK elite who would welcome some attention to their internal politics from their elder brother in socialism.

Saturday, October 14, 2006

One Bad Argument on Abortion

Well, there are a lot of them. But the one I want to take on is Scott Lemieux's. He says that those who would make abortion illegal but do not support serious criminal sanctions against the woman seeking the abortion are in a contradiction, at least if they accept that women have the same moral agency as men.

In one of his comments threads, I argued that this didn't work against abortion opponents who think of abortion as morally wrong, but not as wrong as infanticide, as most do. Other commenters made similar points at greater length.

In fact, most of us combine the following views about something:

*X is wrong.

*X should be legally suppressed.

*Not everyone involved in X should be subject to criminal sanction.

For example, I suspect most Democrats believe that American employers hiring illegal aliens are doing something wrong, and that there should be some legal consequences, while opposing criminal sanctions against the illegal aliens. They are hardly thereby denying moral agency to undocumented Hispanic workers.

There are a lot of prudential and moral reasons that a person might oppose criminal sanctions against women seeking abortions, even if they thought the law should step in more often (my own position) or even all the time (not my position).

Update: Scott responds here.

It's tricky defending views you don't hold, especially on issues it is possible to lose friends over. I'm not a pro-lifer, but I don't think the position of wanting to suppress abortion without criminalizing women who seek them is inconsistent. In addition to the relatively abstract issue of whether a particular argument is a good one or not, there is the problem that seeking to furhter polarize people's opinions on abortion on the grounds of "logic" may not have good consequences.

To address Scott's challenge, I can think of a couple of reasons that a pro-lifer might think criminal sanctions inappropriate:

*Criminalizing something much of a society thinks is permissible is often a mistake, even if that part of society is mistaken about the moral issue. That's basically my view of spanking. I might support criminalizing it if there was a social consensus against it, but I hardly want to drag ordinary parents away to jail when such a consensus doesn't exist.

*Many women seeking abortions do so under conditions of economic or social duress. This would be even more true if abortion was legally unavailable. A person opposed to the legality of abortion could regard this as mitigative, even if not justificatory.

Is (Genuine) Papism Consistent With Liberal Democracy?

Noah at Gideon's Blog notices that this is the interesting question arising out of the Linker-Douthat debate at The New Republic.

Since JFK, no one doubts that operationally secular or operationally Protestant Catholics can be good liberal democrats. But what about those who take seriously the magesterium's authority over matters of faith and morals? Did the problem exist? Did Vatican II solve it?

This was a central issue in Canadian history: the dominant view from Durham to Trudeau was "no." Quebec had to drop its traditional Catholicism (as it did in the mid-sixties) to be properly liberal-democratic. What Durham failed to realize was that French Quebec was not going to peacefully give way to the self-evidently superior Anglo-Saxon way of life. What Trudeau failed to realize was that the only possible replacement for the old Catholic Quebec was ethnic nationalism.

One striking fact about traditional Catholic societies (e.g., Quebec, Ireland, Spain) is how sudden the process of liberalization is, and how quickly those societies settle into an indifferentism about the issues of sex and death the Church is clear about. They seem to pretty clearly vindicate Grant's suspicion that only one of the "religion of progress" and traditional religion could inhabit the public sphere. In principle, perhaps liberalism or libertarianism could be neutral between comprehensive conceptions of the good, but it never seems to work out that way in practice, particularly outside the traditionally Protestant world.

Another Grand Unified Theory of Bushism

The brouhaha over the Lancet mortality study, and the rightist position that the results discredit the fields of statistics and public health, makes me wonder if there is not another grand unified theory of Bushism. It is the democratic revolt against knowledge. The 2000 election was aimed at math, while the 2004 election was more directed against history and the knowledge of foreign languages.

Stephen Harper: Ethnic Demagogue/ Michael Ignatieff: Not Ready for Political Prime Time

So now we have the absurd spectacle of our politics revolving around whether the Israeli air strike on Qana last summer was a war crime. It was, but the matter is hardly central to the appropriate concerns of a Canadian Prime Minister.

But first Harper claims the Liberal party (long the recipient of the support of the majority of Canadian Jews) is "anti-Israel" because Ignatieff criticized the Qana bombing after saying he would "lose little sleep" over civilian deaths in Lebanon last summer (that, at least, is certainly true).

Harper's Tories are building a dubious record of ethnic divisiveness over matters outside the core concerns of the Canadian federal government. First we get the apology to the payors of the Chinese head tax, posturing over the Armenian genocide and a clear attempt to play on Jewish international ethnic loyalties as a wedge in the Liberal party. This is dangerous, even irresponsible, stuff in a leader of a multi-ethnic country. You wouldn't think he, of all people, would take Joe Clark as a role model.

As for Ignatieff, he is just proof that political experience is necessary in a political leader. He lost a number of opportunities to shut up about things that don't concern him. This latest stunt about going to Israel is just going to make things worse.

Pith & Substance endorses Trudeau's insight that a multi-ethnic society can only hope to be just "in our own time" (an insight Chrétien very much followed, which, to my mind, suggests we should overlook the odd dubious transaction). The Pithlord would only add that we can only hope to be just in our own space, as well.

Update: On a related note, Matthew Yglesias questions how the Jewish people could have survived at all what with all the "anti-Semites" like Tony Judt (Jewish intellectual) and George Soros (Holocaust survivor and financier).

Update 2: Andy at I Ectomorph, from the opposite perspective on the Israel attack on Lebanon, independently came up with the "not ready for prime time" verdict about Ignatieff.

Friday, October 13, 2006

R. v. Shoker -- Case Comment -- Thumbs Up

Mojo Nixon famously told the world, "I ain't going to peepee in no cup/ Unless Nancy Reagan's gonna drink it up." The question is whether he would be able to maintain this position in Canada if convicted of a crime and otherwise ordered by a sentencing judge as a probation term.

The court today said that sentencing judges cannot order urine, blood or breath samples as part of a probation order, unless Parliament more specifically gives them that power. As it stands, the Criminal Code allows a court to prescribe such "reasonable conditions as the court considers desirable ... for protecting society and for facilitating the offender's successful reintigration into the community."

Harjit Singh Shoker broke into a woman's bedroom and, naked, tried to get into her bed. When she called the police, he apparently made no attempt to escape. Charged with breaking and entering a dwelling-house with intent to commit sexual assualt, he blamed the drugs and the booze.

The sentencing judge told him that once he completed his jailtime, he had to abstain from alcohol and non-prescription narcotics. Sensibly enough, the judge thought random testing would be necessary to ensure compliance with this condition, and ordered it.

The Pithlord has no problem with the judge's order. Shoker was convicted of an offence, and if you can deprive him of all his liberty by putting him in jail, you should also be able to subject him to more limited indignities non-criminals are secure from. But he agrees with the majority that, given that such orders are obviously "search and seizure", they need more specific legislative language. Courts are doing what they are supposed to in forcing the politicos to be clear when intruding on personal liberty, however justifiably.

A good day for democracy-forcing.

Case Comment of R. v. Shoker, 2006 SCC 44

Update: I also give a thumbs up to Justice Rothstein's decision in Ritchie v. Walker (defendants do not have to pay increased costs because plaintiffs could not afford to pay their lawyer), but it's too boring for me to blog on a Friday. Complaints are directed to Haloscan.

Update 2: David Fraser, the Privacy Lawyer, blogs about Shoker here.

Thursday, October 12, 2006

My Name is Bush, Devourer of Worlds

The Lancet has published a mortality study of excess deaths in Iraq since the invasion (lead author Gilbert Burnham). The excess violent death toll is around 600,000. This in a country smaller than Canada.

Any humour here will be grim, but Lindsay Beyerstein has a rundown of innumerate right-wing commentary here. Bush himself claims to be an expert epidemiologist.

The takehome points:

*The fact that you do not want to believe something is not an argument against it.

*It is equally likely that the sample size led to an understatement of the actual number of deaths in the population as an overstatement.

*In particular, there is a 2.5% chance that the actual number of deaths exceeds the confidence interval, just as there is a 2.5% chance that it is beneath the confidence interval.

There is no such thing as the perfect study, and all empirical work is subject to reasonable criticism. So far, the right-wing blogosphere has yet to exceed the level of the Holocaust deniers.

Update: More important than the right-blogosphere is the American national media. Tim Lambert has been covering its reaction (or lack thereof). Basically, the New York Times and the Washington Post have been burying it, while Associate Press claims the study is "controversial" on the basis of the word of a "national security analyst" with no apparent expertise in statistics or epidemiology.

Update 2: Steve Sailer points out that most of the methodological difficulties with a study like this derive from the fact that Iraq is "hideously dangerous", which is hardly a point in favour of the Iraq optimists. He also has an interesting calculation of 1 million American bullets fired in anger per day in Iraq. A lot of those bullets had somebody's name on them.

Update 3: Daniel Davies (D-squared) has the definitive take here.

Update 4Seyad at Healing Iraq provides an Iraqi perspective on the Lancet study here.

Two things you can't say in America

1. There should be a binational state in Israel/Palestine.

2. There is an organized effort to stop people saying there should be a binational state in Israel/Palestine.

The Pithlord, for one, welcomes our new Bakerite overlords

Apparently, Daddy's men have decided to tell the President the bad news that his dream democracy in Iraq is not going to happen and it's time to cut US losses.

The Pithlord has been burned on his hopes of a Baker/Scowcroft coup before. But the whipping the Republicans are going to get next month might just do it.

Robertson v. Thompson Corp. -- Thumbs Down

Today, the Supremes split 5-4 on whether a newspaper publisher can make freelance articles available on a searchable database without obtaining a license from the writer. The majority, like that of the Supreme Court of the United States in Tasini v. New York Times, said "no," except for CD-ROMs. The dissenters said "yes."

There is no doubt that the dissenters end up with the more sensible policy result. Newspaper publishers are not going to pay freelancers money to exhibit their ancient articles. So the result will just be that they won't be available. No one benefits, and when no one benefits from something, it is usually a bad idea. This is particularly clear in Canada, since we have the experience of the SCOTUS's Tasini decision to tell us what basic economics would have predicted.

The legal argument comes down to the question of whether putting articles in a database is republishing the articles (which only the author has a right to do) or republishing the newspaper (which the publisher has a right to do). The overriding principle (but one that points both ways) is "media neutrality" - if you own copyright in one medium, you own it in all.

The majority thinks that a searchable database of articles is not the same as a newspaper, because the articles are "decontextualized" and therefore lose the originality involved in turning individual articles into a newspaper, the original effort of the publisher that copyright protects. I don't buy this, since I would think that the acts of selecting articles and editing them would still be present.

Staff articles will still be found, since the publishers automatically own them by virtue of the employment relationship.

Case Comment of Robertson v. Thompson Corporation, 2006 SCC 43

Wednesday, October 11, 2006

For the love of God, nooooo!

Via Larison, the new Toronto Coat of Arms.

What's with the bear?

Don and Humber "rivers" are actual size.

Wild Thoughts on North Korea

Everyone's a bit troubled by Kim Jong Il's decision to test a nuclear weapon. The South Koreans are unsurprisingly worried. The Japanese might get back in the military game after a sixty year absence.

According to Dan Drezner, the Chinese are pissed, possibly because of the last-noted prospect.

I know nothing, of course, but it seems plausible to me that the Chinese government has a few friends around the Central Committee table with ambitions of starting their own Leninist-jucheist dynasty of Communist tyrants. If China is annoyed enough, I figure Kim Jong Il may be sleeping with the fishes.

Sunday, October 08, 2006

Is there a Convention against the use of the Notwithstanding Clause?

I've argued before that if we are going to have a notwithstanding clause with continued popular legitimacy, it needs to import a super-majority requirement, so that overriding a Charter decision isn't just routine.

Commenter BKN asks whether there is not a "constitutional convention" against the use of the notwithstanding clause. He also suggests that the Court is too smart politically to ever strike down legislation so popular that a super-majority could be summoned against it.

One response on the political savviness of the courts is that the Court has struck down a number of laws which Parliament simply reenacted, sometimes without much of an attempt to address the court decision, and the court has usually just accepted this. One example that comes to mind is the "drunkenness" defence, struck down in Daviault: see Kent Roach's article on this phenomenon here. As long as courts react this way, then the override becomes unnecessary.

Has a political convention emerged against the use of the notwithstanding clause, no matter the circumstances? I tend to think the last federal election disposes of that idea. Martin got no real bump from proposing to do away with the notwithstanding clause for the federal government. Harper defended it effectively.

The genuine difficulty is that the notwithstanding clause can only coexist with judicial review if its use is at least somewhat exceptional. I think the best way to underline that it is exceptional, while legitimizing its more frequent use, is to add a super-majority requirement.

Saturday, October 07, 2006

Adapting Minds: Some Reactions

I just finished reading David Buller's Adapting Minds: Evolutionary Psychology and the Persistent Quest for Human Nature. It is billed as a takedown of Evolutionary Psychology, as practiced by David Buss, Leda Cosmides, John Tooby, Margo Wilson and Martin Daly, and as popularized by Steven Pinker and Robert Wright. Unless the reader is really immersed in these debates, though, it will strike them as much more of an internal feud than an attack on the whole paradigm. Buller accepts contemporary Darwinism and its relevance to human sciences. In fact, the last chapter suggests to me that the only scientific "laws" that apply to people are those derived from biology.

Buller takes on Evolutionary Psychological orthodoxy on four points:

1. According to EP, there are hundreds or thousands of specialized "modules" in the mind, which are adaptations to the Stone Age human environment. According to Buller, the mind itself is an adaptation, but most or all of the "modules" develop from the developmental process of winnowing out brain cells, a process Buller thinks is analogous to selection.

2. EP conceives of male investment in children as a way of improving the male's inclusive fitness by increasing the odds for the male's offspring. Buller thinks the primary reason men invest in children is to get mating opportunities from their mothers, who are evolved to (generally) prefer dads to cads. In other words, for Buller, fatherhood is mating effort, not (ultimately) parenting effort.

3. EP thinks of jealousy, particularly male sexual jealousy, as designed to prevent males investing in unrelated children. Buller thinks it is primarily designed to warn of loss of the relationship/mating opportunities.

4. EP emphasizes male mating preference for young, fertile women and female mating preference for high-status males. Buller emphasizes homogamy (the tendency to want to mate with somebody like you). He says EP empirical results of female preference for high-status males are confounded by the fact that the women surveyed tend to be high-status themselves.

I'm not a psychologist or a biologist, but it is hard for someone with a human mind not to take an interest in these issues. As far as I can see, Buller's 4 points are all susceptible to compromise.

1: Buller does not deny the existence of specialized cognitive abilities, but points out that these could "evolve" during the lifetime of an individual, as opposed to through genetic change in a population. But surely, genetic change could make it easier for the brain to develop some specialized abilities, as opposed to others, and that's all you need.

Buller compares the mind to the immune system. The immune system is general purpose in the sense that it is built to fight pathogens in general, and it learns to fight particular pathogens by developing antibodies. I'm talking out my posterior here, but my understanding is that different genomes are nonetheless better or worse at developing immune systems to fight particular pathogens. Isn't that why Europeans conquered the Americas (better resistance to smallpox than the native population), but not Africa (worse resistance to malaria, etc. than the natives)? So Buller's analogy points to the possibility that general-purpose systems can be genetically biased in favour of specific tasks.

Buller likes Gerald Edelman's idea of neural Darwinism -- that the mind is created by competition between and selection of neurons in a subtractive process. But what is the criterion for selection if it isn't reproduction? Those criteria have to come from somewhere, and ultimately from the genome.

2: One of the principles of ethology that annoys right-thinking people is that male parenting effort is hard to explain. Sperm is cheap, so it would seem that males are always going to maximize their inclusive fitness by seeking out new mating opportunities, rather than changing diapers (or bringing home the bacon for that matter). And few males in the animal world do much child-rearing.

There are at least two possible explanations for male parental invesment: the first, preferred by the theorists Buller refers to as the EP orthodoxy, is that given the greater needs of human child development, there is an inclusive fitness advantage to men in making sure their genetic offspring make it to reproductive age; the second, preferred by Buller, is that women prefer males who give signs of daddying as long-term mates, and so such males have evolved through sexual selection.

Buller's arguments in favour of the sexual selection model seem credible to me. First, he tells us that the mathematical models say daddyhood could never have evolved otherwise. Second, empirical work suggest that men provide resources to children in this order: (1) their genetic children when residing with the genetic mother; (2) their stepchildren when residing with the genetic mother; (3) their genetic children from a past relationship and (4) their setpchildren from a past relationship. The big drop off is between (2) and (3) as people working in child support enforcement are aware.

It seems to me that Buller is mostly right, but there is no reason that inclusive fitenss might not provide a supplemental motive to daddyhood, even if it couldn't generate it by itself.

3: Buller spends a lot of time reinterpreting EP empirical work purporting to show that women care more about emotional infidelity and men about sexual infidelity. He points out that this is what you would expect if men and women both believe that sexual infidelity on a woman's part is more likely to lead to the end of the relationship. Much of what he says will have to result in more finely attuned studies in the future. However, I don't think he gets the real nature of sexual jealousy. If the woman you loved decided to spend the rest of her life in celibate devotion to the Church, like Julia at the end of Brideshead Revisited, then that would be abandonment. You'd be pretty wistful if your regiment was stationed in her old house. But the particular heterosexual male fury created by the idea of the beloved engaging in sex with another man is a different emotion.

4: Buller sounds right to recognize the importance of homogamy, but EP might be right about the deviations from it.

Friday, October 06, 2006


Anyone interested in the question of Iran's acquisition of nuclear weapons and what can be done about it (and I assume that is most of you) should take a look at this thoughtful post by Noah at Gideon's Blog. Noah supported the Iraq war and is a strongly pro-Israel right-of-centre American Jew, so the mere fact that he is against attacking Iran has a certain newsworthiness. More importantly, the analysis is really good.

I find myself in a somewhat difficult position here. To me, nuclear non-proliferation genuinely ought to be right at the heart of American and Western foreign policy. Up until the Bush administration, the Nuclear Proliferation Treaty worked better than anyone had a right to expect. This was good for America, of course, but it also benefited the world overall. It is not that a new nuclear power would immediately use its weapons. But it would use the diplomatic advantage, and its rivals would end up developing nukes too. It would not take long until pretty much all serious states had nukes: that would probably reduce the occurrence of conventional warfare, but sooner or later something would go wrong. It is true that the NPT does not itself authorize the use of force for contravention, but even though I take international law a lot more seriously than most American foreign policy types, I can't take it that seriously. If a hostile state is violating its obligations under the NPT, then force could be justified.

At the same time, I agree with Noah about the downsides of an attack that he foresees, and I suspect there are many that are not foreseeable. Noah says a conventional bombing attack would not be effective in neutralizing Iran's nuclear program: he may be right. I have no specialized knowledge or insight into this military question, except that this seems like the kind of thing the US military IS good at. (The occupation of Iraq demonstrating what it is terrible at.)

Ideally, force would be kept as a last resort, while the West engaged in brilliant diplomatic maneuvering, pushed Israel to give Palestinians a genuine state and to come clean about its own nuclear program and gave Tehran diplomatic recognition. Unfortunately, we live in the non-ideal world of a Bush administration, and the Baker/Scowcroft coup I have been hoping for since 2003 has yet to materialize. I suspect that any actual attack by this actual group would be a disaster, but I wouldn't want the US as a matter of policy to rule out an attack altogether. I feel kind of stuck.

Thursday, October 05, 2006

Isen v. Simms--Case Comment--Thumbs Up

One of the things supposed to end at the water's edge is provincial tort law. Because the Constitution gives Parliament jurisdiction over "navigation and shipping," accidents on the lakes, rivers and seas are governed by statutory and customary marine law. But what is water safety and what is vehicle safety? Where is the water's edge?

In the summer of 1999, Mr. Isen attained one of the key goals of Ontario's bourgeoisie since the nineteenth century: he got a physician friend and his wife to come up to the cottage in the Muskokas. Unfortunately, the cottage was not actually on Lake Muskoka. So to go boating, Mr. Isen had to tow his boat from his cottage to the lake. After a pleasant day on the lake, it was time to bring the boat home. After he removed the boat from the water, Mr. Isen had to secure the engine cover with a bungee cord. But while doing this, Mr. Isen let the cord slipped and the metal hook hit Dr. Simms in the eye.

Dr. Simms found a personal injury lawyer and sued for over $2 million. Mr. Isen's insurers realized that they would be better off if the accident was covered by federal maritime law, since there is a $1 million statutory cap on damages involving "ships" with a tonnage under 300 tons. No similar cap exists on regular personal injury awards in Ontario. So the key question was whether this was a matter of water or highway safety.

unusually for a modern constitutional case before the SCC, neither the federal nor provincial government showed up to claim jurisdiction over this accident, presumably on the basis that the balance of the federation would not be put too far out-of-whack no matter what happened.

Without a great deal of fuss, Justice Rothstein decided that the accident was not a matter of "navigation" because it did not occur either on or while entering or exiting the water. And it wasn't a matter of "shipping" because the only craft involved were pleasure craft. At least for non-commercial activities, the legal water's edge is at the water. Which makes sense.

Isen v. Simms, 2006 SCC 41.

Photo Credit Phillipe Landreville, Supreme Court of Canada collection

Wednesday, October 04, 2006

We Take Requests: Overriding Correct Court Decisions

In the comments, BKN asks what I think of the Sharpe decision and the "drawings and diaries" exception the Court cut out of the crime of possessing child pornography. I said that I thought the decision was right, but it wouldn't bother me at all if it was overruled by the use of the notwithstanding clause. BKN, reasonably enough, wants me to explain myself.

I honestly don't see a contradiction. Courts, at their best, rely on evidence. Legislatures don't need to. Once we decide to enshrine "freedom of expression" in the Constitution, then a court -- at minimum -- has to require the government to provide some evidence of why it has curtailed some expression, no matter how vile. If the only reason is the vileness, especially if the people who would find it vile aren't exposed to it, then the court probably should not accept that as a sufficient reason. After all, that would pretty much always work as a reason.

So the government would have to show that the decriminalization of this material increases the risk of abuse. I don't really know what I'm talking about here, but my understanding is that this is difficult to do. It's a whole different story if the material uses real kids (in which case it is itself abuse) or is passed around.

In the absence of evidence for the basis of the limitation on expression (which everyone admits that the law was), a court shouldn't uphold it.

Parliament, though, doesn't need to think this way. Its actions do not necessarily require evidence of efficacy, but just the consensus of the community that these actions should be taken. The 1982 Constitution allows Parliament both to limit expression when it has sufficient grounds and to override expression -- even without sufficient grounds -- if it is prepared to take the political step of invoking the notwithstanding clause.

One unfortunate byproduct of the fact that a simple majority is all that is required to invoke the notwithstanding clause is that it is difficult for its use to remain exceptional, but still politically possible. That's a flaw in the 1982 design. Ideally, Parliament would occasionally (but not too often) override court decisions. If I could make one change, I'd require a supermajority for the use of "notwithstanding": paradoxically, that would make it more likely, which I think would be a good thing.

Grit Leadership Thoughts

When I noticed that Matthew Shugart is telling the world that I am following the Liberal leadership race, I thought I had better comment on last weekend's results.

Generally, the conventional wisdom seems about right to me on the horse race aspects. It was inevitable that the race would shrink to 3 or 4. The anti-Ignatieff vote has not coalesced around a single figure, which is probably good for Ignatieff, although since leadership campaigns are not first-past-the-post, and since Ignatieff is easily the most polarizing of the 4 major candidates, he could quite easily lose on the final ballot. The big news is Kennedy's success.

I think the CW read too much into Rae's performance in Ontario, which was only 3% below his national performance, comparable to the difference between Ignatieff's national and Ontario performance, and explicable in terms of Kennedy's relatively better machine there. Still, Rae needs to figure a way to say he isn't the guy he was in 1990.

If he wins, Kennedy would be a total disaster for the Liberals. Harper would eat him for lunch. The other three all have weaknesses, but they would be very credible opponents.

An annoying thing about the commentary is the claim that the "big hitters" (apparently McKenna and Manley) are sitting this out. There is no reason to think either would be more successful Liberal leaders than the 4 in the running now. Actually, the Liberals have a very respectable slate of candidates, which isn't that surprising since Liberal leader is still the open job most likely to make you Prime Minister someday.

There is no doubt that these results make my prediction of a Rae victory a bit braver. Ignatieff will probably win. That will give the NDP yet another reprieve from the inevitable death the first-past-the-post system has been preparing for it since the 80s.

Monday, October 02, 2006

Republican Senate Majority Leader Echoes Jack Layton

Apparently, Bill Frist speculated to a Romanian newspaper about the possibility of bringing the Taliban into the Afghan government. He quite properly said that this was an internal matter for President Karzai to decide.

Does he have some backing in the administration? Who knows?

Naturally, the Kossacks see this primarily as a partisan opportunity. I hope the Democrats win, and I accept the necessity of dreary appartchik sites like Kos and Eschaton. That doesn't mean I have to read the bastards.

Free Speech Rights Absolute: Right Not to Be Detained Without Cause and Tortured Nonexistent

Here is a good example of the bizarre priorities of "libertarian" legalists like Eugene Volokh. Mr. Volokh thinks it should be unconstitutional to prohibit picketing at funerals. But detaining and "coercively interrogating" anyone the President says is an "unlawful combatant," without court review of any kind, is fine.

In my view, anyone picketing a funeral should not expect the assistance of the law of assault and battery. Surely, the state can prevent such an offence to human decency. But it says something amazing about the "libertarian" mind that they will oppose the most common sense of regulations of their favourite freedoms, while winking at genuine tyranny.

À l'époque

In response to my claim that "In the unlikely event democracy held [in Iraq], it would necessarily be in conflict with external occupiers," Fred S. issues this challenge,, "This is totally an argument crafted in hindsight. Who articulated it a l'epoque?"

Personally, I first got interested in the tension between democracy in the Muslim world and both liberalism and Western interests at the time of the French-backed coup in Algeria in 1991. It was certainly an old theme already among IR types and Middle East observers.

But to give one example, I will point Fred to this exchange from the summer of 2003 in Inroads, a Canadian public policy journal. Morley, taking the anti-war side, makes the following comments:

Abandoning deterrence in favour of removing every unfriendly and undemocratic regime cannot make the United States or its allies safer. It can only have the effect of globalizing every local conflict, as the occupier necessarily takes sides in the ethnic and political divisions endemic to the human condition.
The difficulty is that occupying powers, even those initially greeted as liberators, inevitably have to choose between local clients who are loyal to them and genuine representatives of the people. Virtually without exception, occupiers choose the former. As a result, the enemies of those local clients become the enemies of the occupying power, whose nationals then become targets. This, rather than military defeat, was why France left Algeria and the United States left Vietnam.

Moreover, the natural leaders of an anti-occupation intifada in Iraq represent a far greater security threat to western nationals than the cynical and degenerate party-state the Coalition has removed. Ba'ath ideology, with its Arab nationalism and socialist phraseology, has long since lost any ability to motivate self-sacrifice: it survived through fear and corruption. But Islamic fundamentalism -- the ideology best placed to lead the anti-occupation struggle -- is demonstrably capable of mobilizing adolescent idealism in the cause of murdering westerners.


Human rights do not flourish under conditions of instability and war, or under occupation. Soldiers, particularly in the American military tradition, are not trained to be either culturally or politically sensitive. Occupation, including occupation justified on humanitarian grounds, generates cultural miscommunication at best and racist dehumanization of the occupied people at worst. These conditions are fertile ground for atrocities and repression. U.S.-U.K. military occupation will never be as brutal as the Ba'ath regime, but what comes next, particularly if it is based on an Islamist ideology, may be. After all, the displaced Ba'ath regime was itself the product of a historical process set in motion by forgotten bureaucrats in the British Colonial Office with far broader minds and more sympathy for Arab culture than Bremer and Rumsfeld.

More generally, the idea of using invasion and occupation as a vehicle to spread democratic self-rule (as opposed to a stopgap against genocide) is an illusion, since home rule is a necessary, if clearly not sufficient, condition of popular self-rule.

If you want condescension, check out the opening of Pratt and Leon's response:

It is well known that Canadians dislike the idea of power politics. Like pious puritans who prefer not to acknowledge the realities of sex, Canadians avoid the subjects of power, national security and war.

That's not fair to the Puritans, who invented the concept of the companionate heterosexual marriage. I'll leave it to the reader to decide which side better acknowledged the realities of war in the Iraq debate.