Justice Everywhere

a blog about justice in public affairs

Category: Old Blog (Page 1 of 5)

How to criticise a gender norm

This post is about how to go about criticising gender norms (in a wide sense of the term, including explicit expectations but also things like gender schemas – implicit bias and stereotype threat.) Like many other feminists, I find gender norms bothering because of the undue pressure they put on people to behave in ways that limit their social freedom and which very often result in unequal opportunities for women and for men. Overall, women are at the losing end of this inequalities; I will not rehearse here all the counts on which women are worse off than men even in liberal egalitarian democracies that are formally committed to gender justice. (They include political representation, the holding of well-paid, prestigious and interesting jobs, income gaps and various daily, micro-inequalities.) Also – and maybe unlike some feminists – I think that men, too, can be the victims of gender norms – for instance they get conscripted into armies and killed in wars more than women, and probably suffer more injustice than women at the hands of police and the criminal system – especially when gender combines with race, as in the case of black men.

So there’s a clear prima facie case against gender norms: most of us would benefit if they were to disappear, and we’d also have a fairer world for that. Yet it’s not clear which of these norms we really want to change. Presumably not all, or at least not all gender norms are equally bothering and in need of urgent rethinking; also, some may be very difficult if at all possible to change. Also, it is not clear what we want to put instead of the existing gender norms. Take an example: one stereotype has it that women are nurturing and men are competitive. In combination with a competition-based economy and the fact that we as a society don’t reward care generously, this stereotype results in women ending up with less pay and social status and men ending up with less family time and, possibly, fewer caring relationships overall. Now, there are many ways in which we could aim to change this situation into one that is more gender-symmetrical: We could try to change the gender norm of women = care and men = market success into a norm that requires women and men to be equally focussed on market success (and let the care be done by whoever happens to want it, or can’t avoid it). Or we could try to change it into a norm that requires men and women to take equal responsibility for both care and market success. Or we could try to change it into a norm that universally values care in both personal relationships and relationships amongst citizens, and is therefore critical of the very ideal of market success.
Now, some of this discussion has been taking place, but, to my mind, not enough of it. I assume one explanation is that the (academic and popular) debate about gender norms often gets stuck at the question of their origins, as if their origins was overwhelmingly important. Much debate is about the social construction of gender: Some people stress that gender norms are not given but created by social practices and institutions. Others – often seen as unsympathetic to feminism – argue that they are a result of evolution. I’m increasingly of the opinion that whether gender roles are a result of evolution (as evolutionary psychologists often claim) or of social construction (as many others think) has in itself little normative relevance. More important than the origin of a gender norm are, to my mind, the following questions:
(a) Is it desirable to get rid of a particular gender norm?
(b) Does the gender norm in question promote a behaviour that is morally valuable, morally neutral or morally indifferent?
(c) Is it possible to change the norm in question, and at what (moral) cost?
Defenders of evolutionary psychology and of the social construction model can in principle meet on the same answer to (a). If a gender norm puts some people at arbitrary disadvantage then we have a plausible reason for opposing it, whatever it’s origin. If boys come into the world with less ability to express themselves and women with less talent for maths, then maybe we should invest more in boys’ linguistic competence and girl’s mathematical skills.
On (b): Some of the gender norms that regulate women’s and men’s behaviour seem to be, in themselves, morally neutral: for instance, those related to dress, appearance or courtship codes. (This is not to say that it cannot be harmful to aim for some ideals of feminine beauty, or that it is fair to expect women to invest more in their appearance than men in order to be socially acceptable.) There’s no harm in just abolishing them. But other gender norms have moral content. Women are expected to be more nurturing and caring than men. It’s very contested that women do in fact tend to respond to individual needs and relationships better than men. But the norm itself promotes a morally valuable behaviour, which suggests we should universalise, rather than abolish, it.
Yet, moving on to (c), it may be feasible to get to a less gendered society only by universalising the norms associated with male behaviours. Take professional success: Some people claim that, in order to ‘get ahead’ as a woman you need to emulate male behaviour (and over-do it a bit.) And the existence of implicit bias and tendency to discount women as knowers may mean that as a woman it is particularly important to be self-assertive in order to be taken seriously (an interesting discussion here.) If so, as a parent or mentor you may have only one effectiveway to undermine gender norms: to nudge your female child or mentoree to be more self-assertive and, more generally, emphasise that women can and should be just as self-assertive as men. This, I assume, it a genuinely difficult moral choice.
In any case, it seems to me that it’s not worth spending so much energy on discussing the origin of gender norms, but focus instead on whether we want them around and what we should replace them with. I’m curious to find out what you think.

Equal Suffering: for a just distribution of airplane flight routes

There is a long-standing debate in Belgium over the choice of flight routes around the national airport located northeast of the capital, Brussels. A plan last year that reorganized departure routes, routing the majority over densely populate areas of the capital, was met with strong protest from Brussels residents who now had to endure noise nuisance they didn’t have under the previous routes. Noise nuisance from airplanes is, according to recent studies, linked to an important increased risk (10-20% higher likelihood) of stroke, coronary heart disease, cardiovascular diseases, and death. Assuming 1) that there is an unavoidable amount of flights above populated areas and 2) that it is impossible to fully deaden the noises thereby engendered, what would constitute a just distribution of flight routes? In other words, what is a just distribution of suffering and risks caused by plane nuisance? In this post we present three possible answers and defend one of them.
 
 
 
 
1.      Fair distribution of costs and benefits through the market
 
One answer to the question is to say that the market already fairly allocates the benefits and burdens associated with living under established flight routes. Rents and property prices reflect the distribution of preferences that people have when it comes to the trade-off between noise pollution and money. This approach would favour policies that maintain the status quo and reject introducing any changes in flight routes given that choices were made and expectations were built around a stability of flight routes. We see two problems with this approach. Firstly, we do not think that the choices made by some individuals to live under the flight routes are genuine choices that reflect their preferences. On the one hand, information about the health costs of airplane nuisance was not available till recently (2013). On the other hand, there is the worry that many individuals have no option but to take up residence under flight routes thereby sacrificing or risking their health not because of a preference for money but because properties in those areas are the only ones they can afford. Secondly, even if we were to be certain that choices of all individuals were genuine or to disregardvoluntariness, a problem remains with regards to the consequences those choices have on third parties, in this case the children of those who opt for health risks in exchange for cheaper rent.
 
2.      Minimization of total suffering
 
A second answer says a just distribution is one that minimizes total suffering. The argument that flight routes should be organized such that airplane nuisance affects the least number of people is popular and intuitive. It favours policies that concentrate flights over the least populated areas. This approach relies on utilitarian reasoning, and although electorally attractive, it suffers from the classical objection to utilitarianism: it sacrifices the welfare of part of the population for the aggregate welfare.
 
One could argue, however, that offering compensation to the victims (those who live under the flight routes) can address this objection. By compensating the victims we show concern for their suffering and balance out the loss in wellbeing incurred by the noise pollution. The compensation can take the form of an offer for relocation or monetary compensation. Yet, we think this response suffers from the same problems as the first answer which relies on compensation through the market. The worry is that some might opt for monetary compensation and hence nuisance and health risks because they are economically disadvantaged and that their choice at any rate unfairly impacts their children. We recognize that forced relocations could be one way to counter this worry. Nevertheless, we think it is problematic as it imposes the burdens of relocation on only part of the population making it open once more to the initial objection of sacrificing the welfare of some for the aggregate welfare.
 
3.      Equalizing suffering and risk
 
The answer we favour to the question of just distribution of nuisance and health risks is one that advocates an equal sharing of the burden because it considers it unjust to ask some to endure suffering or risk their health for the aggregate welfare. The policy favoured by this approach would be maximal dispersion of flights. Of course, maximal dispersion is only a proxy for equal distribution of burdens for there will be inevitable inequalities. Equalizing risk is impossible; those living close to the airport will be more affected than those living farther. Maximal dispersion can be complemented by forced relocation (for those areas where the risk is highest) and compensation (although the same concerns about compensation above apply)The principle of equalizing suffering and risk might strike many as counterintuitive. Don’t we by maximal dispoersion simply subject a higher number of people to nuisance and risk than would have been the case under concentration policies? We stand by this principle, however, because we think it is the only one that treats everyone as equal and expresses equal concern/respect to each. Unlike the utilitarian argument, it can be justifiable to each individual. And, we think that justifiability to all trumps efficiency considerations. 

That said, we note that a utilitarian appraoch might also support a policy of dispersion if we take into consideration the following two reasons. First, the negative impact of noise pollution is non-linear (the nuisance of two planes is higher than twice the nuisance of one). This means that concentration does not necessarily minimize aggregate suffering. Second, a policy of maximal dispersion might be highly effective in making a substantial number of citizens aware of the nuisance and dangers of airplane noise which could ultimately lead to more effective lobbying to reduce air traddic and find radical alternative solutions.
 
 
Siba Harb and Pierre Etienne Vandamme

Beneficial competition or attack on legitimate interests: What to make of Uber’s disruption of the taxi industry?

Imagine you are standing on the street and waiting for a taxi to take you home. While you are having second thoughts as to whether the convenience of a taxi ride is really worth the cost, a private car stops in front of you and the person at the steering wheel offers to drive you home for a price significantly below the taxi rate. Once you have convinced yourself of the driver’s competence and reliability, what could possibly speak against accepting the offer? Not much, it may seem.

Granted, the scene just described may appear too unrealistic to merit serious ethical reflection. In cities around the world, however, smartphone technology has recently led to a surge of structurally similar situations. Ride-hailing platforms that act as brokers between private drivers and potential clients have been experiencing rapid growth and offer rates that are often below those of established taxi industries. Uber, the most prominent example, has extended its operation to 54 countries and has created headlines by attracting more than $2bn of investment during the last two years. In many places, however, this expansion has been accompanied by fervent political controversy, and in a number of jurisdictions regulatory opposition has brought Uber’s operation to a halt.

Some of the criticisms voiced in opposition to Uber reflect concerns that seem relatively uncontroversial. For example, the enforcement of adequate safety standards in cars (including mandatory liability insurance for drivers) and appropriate forms of taxation appear to represent valid objectives, both from the point of view of public interest and in terms of ensuring a level playing field in Uber’s competition with traditional taxi providers. At the same time, these objectives do not necessarily conflict with Uber’s business model. Assuming that drivers are subject to the same safety and tax requirements as traditional taxi providers, Uber may still be able to offer lower fares. In the following, I would like to consider two additional concerns that are more fundamentally connected to the way Uber operates and that also seem more difficult to evaluate.

The first concern relates to the interest of drivers that rely on their job as a primary source of income. One of the prominent complaints of taxi associations has been that Uber’s competition threatens the ability of professional drivers to make a living from their occupation. While Uber argues that its drivers are able to achieve incomes far above the average income of taxi drivers, protests by Uber drivers cast doubt on the generalisability of this claim. Moreover, recent data shows that the majority of drivers do not treat Uber as their main source of income, which in turn may contribute to the preparedness of Uber drivers to work for lower rates. If it is indeed the case that Uber’s business model poses a threat to the interest of drivers in being able to make a living from their occupation (be it in the traditional taxi sector or after a switch to Uber), does this interest provide a legitimate basis for banning Uber?

On the one hand, Uber would appear to exemplify the general potential of freelance working arrangements to erode income levels. Given that earnings in the established taxi industry are already at the low end of the income spectrum, we may think that, if anything, policy should aim at improving wages in the taxi industry, e.g. through appropriate minimum wage legislation, rather than allowing income levels to be threatened by Uber’s business model which, in virtue of treating drivers as individual contractors, is not bound by wage regulations. On the other hand, the interest to make a living from taxi driving would have to be defended against the interest of those who are willing to offer their service at a lower price, if only as a partial source of income, and would be prevented from doing so through an ban of platforms such as Uber. Such a defence, it seems to me, cannot necessarily be taken for granted. A judgment on the issue would have to take into account the level of material well-being and the occupational alternatives of both groups.

Setting aside the interest of drivers, the second concern may be cast in terms of public or general interest. While taxi rates are legally regulated, ride-hailing platforms are free to set their prices according to demand and supply. Uber, for example, relies on rate increases in times of high demand in order to incentivize additional drivers to offer their services. As a result, on holidays or in situations of emergency, fares can increase up to fourfold, to levels far above standard taxi rates. Regulated taxi fares, in contrast, may be thought to serve an important public interest in the availability, in general, of rides at rates that are affordable for a relatively wide section of the population. To the extent to which the success of Uber and other ride-hailing platforms leads to an erosion of the supply of fix-rate taxis, people with urgent transportation needs may find themselves in situations without affordable options.

Is the interest in affordable rides compelling enough to justify a ban on unregulated services such as Uber in order to protect the supply of fix-rate taxis? The answer to this question does not seem obvious either. Among the countervailing interests to consider are the interests of customers who would take advantage of Uber’s service during times at which fares are below the taxi rate. Among them are equally going to be people with urgent needs, some of whom may in fact not be able to afford the regulated taxi fare. And to the extent to which the taxi fare is affordable for them, can they be expected to effectively subsidise the rides of others? One consideration that seems clearly relevant here is the existence of alternative modes of transportation that may serve to protect the interest in generally available affordable transportation. An answer thus appears even more context-dependent than in the case of the first concern. What do you think?

On taxing meat – why (not)?

A recent study indicates that reducing the consumption of meat would help considerably to slow down climate change. It may even be one of the most efficient ways to do so, since livestock emissions are making up 14.5 percent of all human causedgreenhouse gas production – which is a little more than that of all cars, trains and planes combined. In addition animal suffering and the adverse effects of excessive meat consumption on human health present two strong reasons why industrial meat production should be severely regulated. Introducing a “sin tax” on meat therefore seems to make a lot of sense from an ethical point of view and also from the perspective of (health) economics. After all, we put so-called “sin taxes” on other behaviours that we consider bad for people or the environment like smoking or fuel. If taxing meat can be supported by even more compelling reasons (after all, neither oil nor tobacco suffer in the production of the desired goods), governments seem to be obliged to engage in it. Surprisingly, however, there has been little discussion so far in politics or the media about it.

One of the main concerns seems to be that taxing meat seems to hit those the hardest that fight with bringing food on the table on a daily basis, namely people with low income. Every excise tax is discriminating towards the poor, since it raises the prices on goods without regard to income. In the case of taxing food I think that most people will react extra sensitive: eating is one of the most basic human needs while smoking or driving a car is (often) not. It seems therefore quite harsh to tax something that most people consider as basic. Especially in countries with a meat based diet (e.g. Germany or the US) people might find that one of their basic sources of nutrition is being taken away. But apart from the strong sentiments, it may be unjust to tax food in general, since poor people will be left with even fewer choices than they have now. This is a serious concern, since many poor families are already in need of food stamps or other subsidies by the government.

Still, I think that analogous arguments from the discussion of taxing fuel or smoking hold. Just as you do not have to smoke and you do not have to drive everywhere (at least if there is public transport available), you do not have to eat meat in those large amounts in which we consume it in the first world. In Western countries, where there are still plenty of choices what groceries to buy and consume, there are many alternatives to the daily dose of ham or sausage. Taxing meat also does not need to make it totally unaffordable. After all, taxes do not need to be sky-high: a moderate rise in the prices of meat may lead to the desired result that people curb their consumption and keep it on a moderate level. In addition, gains from the taxes may be used to promote the production of meat alternatives (e.g. vegetarian spread or sausages, which are still remarkably expensive in most supermarkets) and in subsidizing farmers and companies that provide good conditions for their animals. Thus, animal suffering may also be relieved, which is no small reason. As long as we are talking about a moderate increase in pricing (maybe) together with an investment in supporting meat alternatives I think that taxing meat seems just enough given the benefits.

Another argument may be raised against “sin taxes” in general. A true libertarian might object that the main purpose of taxes is to finance government not to control or even punish people who pay them. However, we may ask what it is we are paying for exactly. If all we want is some sort of Nozickean minimal state the objection is quite valid indeed. But if we also want that the state takes care of our environment and the needs of our descendants, we may also want to finance this enterprise. In the case of climate change I think that the costs and the needs of those who are and will be affected are the decisive reasons, not considerations of paternalist control. States may have to save money in order to deal with the effects of climate change in the future, e.g. with the effects of floods or blizzards. They also need the money to invest in techniques to combat climate change, e.g. alternative energies. Hence, meat taxes would serve a classic purpose.

Of course, one may wonder whether taxing meat is feasible in practice. We may think of the effects of other sin taxes, e.g. people buying cheap cigarettes duty-free or on the black market, or people driving to other countries only to buy fuel). A black market for meat or cheap imports surely does not seem to be desirable considering the pain that may be inflicted on animals. Also, what should be avoided for the same reason is the meat industry trying to counter the effects of the tax by making their production more effective and cheap. Here, only better standards and harder regulation will probably be the best route (and will naturally make meat more expensive). Hence, much more effort is involved in dealing with the problem of our considerable meat consumption than a simple sin tax. Still, I think a moderate meat tax is a good place to start.

‘Truman Care’ for Dementia

On the outskirts of Amsterdam, there is a small village called Hogewey, notable because all of its 152 residents have severe or extreme dementia. Hogewey is a gated model village, complete with town square, post office, theatre, hair salon, café-restaurant and supermarket – as well as cameras monitoring residents around the clock, and well-trained staff working incognito, holding a myriad of occupations such as post-office clerks and supermarket cashiers. Every detail of this ‘fake reality’ has been meticulously designed to ensure that the residents can experience life as close to ‘normal’ as possible. Critics have drawn parallels with the deception depicted in the 1998 ‘social science fiction’ film The Truman Show; but many Alzheimer’s experts have praised the pioneering facility for being the first to adjust ‘our’ reality to allow those with dementia to be in a safe and comforting environment – one built around life rather than death.

Taking inspiration from Hogewey, the Grove Care nursing home in Winterbourne, Bristol have developed ‘Memory Lane’; a recreation of a 1950s high street, including a Post Office, pub, bus stop, phone box and shop windows full of memorabilia.

I’d like to briefly outline two sets of reasons for thinking we should move towards this model of care (all-day reminiscence therapy, or ‘Truman Care’ if you like), and to then briefly discuss what I assume to be the main problem facing this kind of move.

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The (in)justice of critical philosophy of race?

In a recent presentation about a relatively new academic field called the critical philosophy of race, I was (repeatedly) questioned about the reasons for retaining the concept of race after it has been so clearly delegitimised. I was surprised how much I struggled to find a satisfactory answer, both for others and myself, to this question. Part of my struggle arose from the context of this discussion. While I appreciate the challenge posed with regard to the concept of race, the composition of the group made me uncomfortable as to its motivation. The group was composed of all white heterosexual male post-Christian European citizens; the epitome of what in the field of critical philosophy of race is referred to as white privilege. By contrast the field itself is one of the most diverse in terms of academic philosophy with strong representations of scholars from underrepresented groups in terms of gender, religious affiliations, non-European origins, etc.
The latter is significant in that these scholars – many of whom come from marginalised groups – recognise that because of the history of racism, the category of race, has been (at least rhetorically) delegitimised and yet there are several – justice based – reasons for retaining the concept of race. One such reason is to discredit the claim that we are living in a post-racial society. Clearly recent events such as the tragic political and legal injustice that arose in Fergusondemonstrate this. On a very different scale, which makes it easier to deny that racism is the root of the problem, are the recent debates in the Low Lands about ‘Zwarte Piet’.
 
Another reason is that by denying the category of race, it is much more difficult – both legally and socially – to fight current manifestations of racism, such as the cultural-racism central to islamophobia.  Partially because of the intentional efforts on the part of the (surviving) Jewish community after the Shoah to be ‘deracialised’, there has been a political campaign to detangle the categories of race and religion – as manifest in terms of anti-Semitism. This however makes it much more difficult for groups that currently fall within this (cultural) race-religion constellation, as do Muslims, to appeal to laws created to combat racism.
This problem brings me back to my original concern. While there may be good reasons to politically or legally retain this concept, the question being asked was also why a philosophical field might retain the concept of race. From the perspective of those posing this question, the concept has been intentionally delegitimised in European and needs to be forgotten. This claim is based on how European society responded to the shame of the Shoah by promoting campaigns, legal, political and social, to delegitimise the concept of race (see for example UNESCO’s substitution of the term race for culture in the 1950s). Accordingly it seems unjust bot to the group that was most destroyed by these events (this is not to deny that the Nazis did not persecute other groups) to retain the category of race and to Europeans as it reminds them of a past they have moved beyond.  
Yet isn’t the latter perhaps a reason to retain the concept, to remind us all that while we can move beyond the signifier, we have not moved beyond the signified? Do we not need a concept of race to help us make sense of this particular set of social relations of power that shaped and continue to shape our world? While I grant those in the room that the concept of race has morphed and changed since the Shoah and as such we need to constantly study and reflect upon these changes (a reflection that includes considering letting go of terms that are no longer philosophically significant), race neither in terms of philosophy nor politics is at this stage.  As such, I have to wonder if the desire to silence race talk in Europe arises from wanting to sweep responsibility, both past and present, under the carpet?
Clearly no one would contend that the central problem of exclusion, which has historically been achieved by the creation of hierarchical categories (whether race, religion, nation etc.) has not disappeared – so are there good reasons for retaining such delegitimised and offensive concepts?

Defending Quotas

 
 
We live in a society that contains severe gender injustice. One way in which to combat this injustice is via the use of quota policies. A quota policy is a policy that requires that members of certain specified groups to make up some stipulated minimum complement of an organisation or group of organisations. For example, we may require women to constitute at least 40% of non-executive board directorships. The use of quotas can be a highly effective tool for changing or maintaining the make-up of an organisation or group of organisations, especially when accompanied by harsh penalties for non-compliance with the quota policy.
Despite these credentials, the use of quota policies remains hotly contested and highly controversial. Indeed, the use of quota policies has been much more politically and constitutionally controversial than the use of other affirmative action policies, such as those that involve giving greater weight to applications from members of certain specified groups. I take it that part of the reason for this is that quota policies run the risk that worse candidates will be hired at the expense of better candidates. In other words, quota policies risk being genuinely discriminatory. The same risk does not arise with respect to policies that give greater weight to applications from members of certain specified groups. This is because the purpose of this greater weight can plausibly be seen simply as counterbalancing the effects of certain discriminatory norms, such as gendered social norms.
Even though quota policies risk being genuinely discriminatory, I believe that we should be prepared to defend their use. To this end, I shall make two points. First, as I have suggested, quotas can be highly effective, much more so than other affirmative action policies. As an illustrative example, let’s consider ‘reaction qualifications’ – that is, qualifications that a candidate possesses by virtue of others’ reactions to them. One stubborn way in which sexist discrimination occurs is when an employer rejects a female candidate’s application on the basis of how it is expected other people (other staff, customers, etc.) would interact with her. A quota policy provides a way in which effectively to challenge the effect of reaction qualification. Here, I agree with L. W. Sumner, who writes:
An employer who needs to hire women in order to meet a stipulated quota will be less likely to worry whether this particular woman is too pushy, or will not be a good team player, or is likely to get pregnant, or whatever. Although numerical quotas will come as an acute shock to many employers, I know of no other way to concentrate their minds as wonderfully on the genuine qualifications of female job candidates (214).
Second, the defence of the use of quota policies is strengthened if we can offer a reply to those who resist their use on the grounds that they run the risk that worse candidates will be hired at the expense of better candidates. This objection is typically put in terms of an appeal to rights and, in particular, the rights of the best qualified candidates. One fundamental problem with this objection is that it is insufficiently sensitive to costs that are imposed by the absence of a quota policy. At least in the short run, the alternative to the introduction of a quota policy is the survival of unjust discrimination, which leads to widespread rights violations. In short, if my first point in defence of the use of quota policies is correct, then we should conclude that there is no way to avoid imposing morally objectionable costs, at least in the short run. This is important as I think we should prefer imposing costs, as quota policies do, with the aim of minimising these costs in the long run, by moving towards a more just society.
To be sure, I do not claim that the use of quota policies is sufficient to end gender injustice. No doubt that, in addition to quota policies, we must pursue other goals to combat the causes and effects of gender injustice, such as challenging certain gender stereotypes and restructuring socio-economic institutions to protect greater and more equal opportunities. Nor do I claim that the use of quota policies is always necessary. In some cases, a quota policy may be futile and, if this is the case, it may risk being harmful. I support the more modest claim that we should in principle be prepared to use quota policies to combat gender injustice; that is, I believe that the quota policy is a legitimate weapon in our arsenal.  

 

Are we socially (and not just legally) obligated to presume innocence?

Content note: this post contains and links to discussions of rape and sexual harassment.


Social attitudes towards rape and sexual violence and harassment have over the last few years been undergoing what Laurie Penny has aptly called ‘rape culture’s Abu Ghraib moment’. From Steubenville, to Jimmy Saville, and academic philosophers, we have been confronted with both how widespread rape, sexual violence and harassment is, and how awfully this is dealt with by the police, courts and institutions. Closer to home for me, a few months ago the Oxford Union president was arrested for rape and attempted rape (the charges were later dropped). This resulted in a campaign to have him resign his position as president and for invited speakers to cancel their appearances until he did. The ‘public intellectual’ A.C. Grayling however refused to cancel his appearance, saying that the president was innocent until proven guilty and should not be tried in the ‘kangaroo court of public opinion’. This has become a common response to accusations of rape (with ‘kangaroo court‘ the favourite and somewhat tired description). The alleged rapist, it is argued, should not be subject to social sanctions and society should reserve judgement because of the principle that people are innocent until proven guilty.

I vehemently disagree with this. But when challenged I have in the past been somewhat unsure of my reasons for disagreeing. One argument is that though innocent until proven guilty is an extraordinarily important principle, it is primarily a legal principle. That means it applies to the courts and the legal process of convicting someone of a crime. If someone is to be subjected to state punishment (from fines, to jail, to being executed), then they have the right to be presumed innocent until proven guilty so that the obligation rests with the prosecution and not the accused to prove guilt beyond reasonable doubt. It is however not clear that public condemnation of an alleged rapist should be subject to the same principle. As has been pointed out the so-called ‘kangaroo court of public opinion’ is not actually a kangaroo court. A kangaroo court (such as white lynch mobs) disregards the standards of a fair trial to punish the accused. Public discussion and condemnation does not (usually) seek to actually replace the legal process and determine guilt and then exact the kind of punishment normally reserved for the state.

But I am unsure of this argument. First, it relies on a kind of reasoning where the legal and social is entirely divorced that I would normally reject. I do not for example accept the absurd argument that women, queer people and people of colour have achieved equal status on the basis that many (but certainly not all) legal discriminations have been removed, because this is undermined by the continued existence of social oppression upheld through patriarchal, white supremacist and heteronormative norms. Second, public condemnation and discussion is not the whole story. Social sanctions, which include being personally or professionally shunned and being removed or temporarily stepping down from public positions, are graver than public condemnation and can approach state punishment in the consequences for the accused. Trying to argue that carrying out these kind of social sanctions does not punish the accused in the way a court does, seems unconvincing. Justifying it requires more than saying that innocent until proven guilty is just a legal principle.

I think the more convincing defence of public condemnation and social sanctions, and thereby overruling innocent until proven guilty, is based on the flawed legal processes and social attitudes that surround rape and sexual harassment and violence. Rape culture and its associated myths infect every step of the legal process from the police to judges. Combined with the social shaming and condemnation of victims, this mean that rape remains (as the graphic above shows) a dramatically under-reported, under-prosecuted and under-sentenced crime. In the absence of a correctly functioning legal system and societal attitudes that support victims I think it is therefore justifiable to publicly condemn and socially sanction alleged rapists and harassers. Of course this will vary from case to case, based on which crime they are accused of and the actions taken by the institutions that are supposed to deal with it, and there is no easy formula for this. I think that these actions are however necessary to challenge the ideas embedded in rape culture and replace them with the kind of norms and institutions that would seriously reduce the prevalence of rape and harassment.

In closing it is worth reflecting why people place so much emphasis on innocent until proven guilty when it comes to rape and harassment. I suspect that this is in fact one more feature of rape culture. At its heart rests the profoundly mistaken view that false accusations of rape and harassment are rife. I think we should remember that insisting that the accused is innocent until proven guilty, is so often based on the assumption that the victim is ‘lying until proven truthful’. To counteract that, I think it is central to believe and support victims. As Stavvers has convincingly argued:

‘Silence is the biggest weapon patriarchy has in keeping rape culture alive, and “I believe her” starts to tear down this wall and encourage and empower survivors to speak out. Because of this, it is crucial that we resist the attacks on this notion, the slurring it as “mobs” and “kangaroo courts”, because it isn’t. It’s solidarity in the face of patriarchy, and we should be proud that it is starting to terrify those who would rather we shut up.’

Two arguments on Scottish Independence, one for and one against

I was not personally affected by the vote for Scottish independence, but like many political junkies, I was very much interested. Though it wasn’t merely intellectual curiosity that drove me to follow it: the vote was a unique and precedential event on the stage of global politics that may well have implications beyond the Kingdom-that-is-for-now-still-United. Among my British friends, there was a split between those were tentatively relieved and those were tentatively disappointed that Scotland did not, in fact, secede yet all of them had a hard time deciding. I believe this is partly because we don’t have good frameworks to think through issues of boundaries and succession, as the old political ideologies (like imperialism and nationalism) are losing their grip. Liberalism and democracy are typically perceived to have no say on questions of boundaries and membership, and that’s a big problem for anyone who believes in individual rights and democracy. With this kind of motivation in mind, I’d like to briefly present two arguments, neither conclusive, that were not featured prominently in the debate about Scottish independence – one for, one against.

What reasons do people give for and against Scottish independence? To put it very crudely, the Yes argument was mostly nationalistic and the No argument commonly economic (which means it was about material welfare). Thus, the Yes people said that Scots are a nation and therefore deserve to have political independence – it is their right to control their own collective affairs. The No people said that an independent Scotland will either do worse than it is doing now or terribly bad, with all sorts of catastrophic scenarios flying around. Of course, the Yes people have responded by saying that independence would not have such dire consequences and may even have some economic benefits but their argument was still, for the most part, about national self-determination.

That brings me to one argument in favor of Yes. It seems important to have a living example of a nation achieving independence via a vote. It’s an historical opportunity to witness a nation gain statehood by ballots, not bullets and poke a hole in the generalization that independence is gained with blood and tears or not at all. Some political leaders worried that other national minorities looked to the vote with thoughts of their own national aspirations. If the vote succeeded, the thought went, such aspirations would be strengthened and that would lead to instability. But it seems to me that the opposite is true: such a peaceful campaign is a remarkable example of the potential of discursive and non-violent means for achieving political goals, which might encourage minorities to pursue similar non-violent means in the quest for their political autonomy. That wouldn’t be the cause of any ensuing instability, but a much better way of addressing the already existing tensions, which is a euphemism for the fact that many national minorities suffer discrimination, mistreatment and oppression. If you value democracy, you want to see it succeed where much blood has been shed before: in the struggle for political independence.

This leads us to the problem with the Yes argument. That the conversation has been couched mostly in nationalistic terms is, I believe, a source of concern. For various reasons I can’t enumerate here I am very skeptical about the idea of nationalism in general and about nationalism as a basis for political independence in particular. One troubling aspect of nationalism is that the idea that nations should have their own states and states should be nation-states forces people to choose. Why can’t someone be both Scottish and British? If nations are to have their own state, each state should have a clear nation. If there’s a nation that doesn’t have a state – either it should have its own state, or live as a minority in a state that isn’t its own.

More importantly, I think that there is a potentially better argument for the Yes campaign that wasn’t as prominent in this discussion. That is the democratic aspect: would a new independent state improve the Scottish people’s ability to affect the matters the concern their own lives? Some Yes people have made that argument, usually within the nationalistic framework: as a nation, the Scots will be in a position to manage their own life. But I’m not interested in the Scots as a nation, but in Scots (and the English, and all other affected parties) as individuals. Would it improve individuals’ democratic standings? Will they have more say in decisions that impact their lives? I’m not sure, and I haven’t heard many people make a persuasive argument either way. Some Yes people think that an independent Scotland would result in an improvement in democracy because there are differences in preferences, generally speaking, between the population of Scotland and the rest of the UK: Scots tend to support more social policies, such as governmental funding of education and healthcare than the policies of the UK government. Therefore, an independent Scotland would reflect better the preferences of most Scots while the remaining citizens of the UK would have policies that reflect their preferences.

This might be true. However, there are various other issues that complicate the story. Will an independent government in Scotland be sufficiently strong to have its own policies in the face of pressures from international markets and a strong neighbor? For example, if the now independent Scotland attempts to regulate labour standards more rigorously will they be able to enforce it given the competition with their southern neighbors or will they have to end up complying with the standards of the Westminster government only that now it’ll be a much more conservative government in which they will have no say?

These are empirical questions that are hard to answer, but to my knowledge they have not been the focus of empirical study in recent years. Partly, that’s because the kind of democratic considerations I’m raising here have not been prevalent in discussion on boundaries and succession, though I think they should be.

In defence of a constitution for the UK

Magna Carta Memorial, by Karnaphuli / CC BY-NC 2.0
In honour of the 800th anniversary of the Magna Carta, the United Kingdom is presently considering whether to adopt a written constitution.  Of course, the UK has various legal documents that set rules and precedents for government and legislation.  There is a Ministerial Code that outlines the duties of ministers and a Human Rights Act that stipulates various rights and freedoms to be upheld.  But it does not have a single, formal, codified document encapsulating the essence and dimensions of all these segments.  In this post, I outline two reasons in favour of the UK adopting such a constitution.
1) A Constitutional Code, which would outline essential elements and principles of government, but not be legally binding.
2) A Constitutional Consolidation Act, which would bring together the various segments of existing common law and parliamentary practice.
3) A Written Constitution, which would be a legally binding statement of basic UK law, democratic procedure, and the relationship between state and citizen.
 
What I have in mind to defend is a version of 3 not dissimilar to the draft of this option in the Select Committee Report.  I think there would be value to the UK adopting a document which details certain core existent and aspirational principles of governance – “liberty, equality, tolerance, and the rule of law” are the draft’s specification (on p.285) – and delineates their manifestation in various rules – such as the rights to life, security, and a fair trial of citizens.  This change would replace the existing patchwork of acts of parliament, legal texts, and conventions through which the UK now operates with a clearer focal point containing the essential rules of state and the principles on which they are based.
One benefit of doing so is that it would make these structures easier for citizens to find and comprehend.  Andrew Williams persuasively argues that justice can make only demands that fall within the epistemic capabilities of citizens.  Individuals must be able to know what the rules require and whether they are being observed, because it respects them as citizens to put this information within their reach and allows them assurance that others are complying.  Arguably the current UK structures fall outside this requirement.  They can be difficult even for legal practitioners to master.  But, at any rate, it seems reasonable to think that a tighter, collated outline of the rules would help meet this goal better.
Another benefit would be that it would provide a clearer mandate for a system of judicial review.  Some worry that adopting a constitution would allow (unelected) judges a political role in setting the rules of society.  Given that UK judges already have power to overrule legislation under the Human Rights Act, it is not clear that adopting a constitution is any more liable to this objection than the status quo.  But, regardless, as Ronald Dworkin argues, there is value in judges having this mandate if it protects certain principles and rights we deem important, such as those mentioned above.  And while some suggest that the British unwritten constitutional model has been good at protecting freedom over time, the evidence is that independent courts operating with safeguarded statutes have the stronger record in protecting human rights, especially those of minorities.  Moreover, offering judges a tighter, collated outline of the relevant principles and rights seems, if anything, likely to improve the viability of this task.  It would help distinguish these cases from instances of legislation more concerned with improving general welfare, thereby establishing a clearer domain and set of parameters within which their rulings must operate.
One important question asked about the project of adopting a constitution is whether there is a clear objective in doing so.  I have some (perhaps overly optimistic) hope that the process could help the UK clarify what truly follows from some of its foundational values – that equality requires far more in terms of social and economic rights than our existing structures offer, for example.  But, whatever else, I do think that bringing principles and current rules into sharper focus and alignment would set the tone and motion for a better political climate in the senses described above.  That, I believe, would be a worthy objective.

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