Terrorism and hate crimes as speech acts

I used to be a bit puzzled at the ideas of terrorism and hate crimes as specific criminal offences. After all, weren’t acts of violence already illegal? Why did we need additional charges on top of whatever criminal act was committed? Just because someone’s motive is political and not financial or personal or delusional shouldn’t magically transform something into terrorism, and as for hate crimes, is it better to kill someone you don’t hate? It didn’t make a lot of sense to me. Until I thought about it.

But first, let’s talk about an important limit to freedom of speech. If I tell you to give me your money or I’ll shoot you, that’s certainly a speech act, but it’s also a use of violence, even if I never actually shoot you. Indeed, if my threat persuades you to give me your money and I don’t need to follow through, it’s a successful use of violence. This is why we have laws against such behaviour, and why these laws pass constitutional muster even though they put a constraint on what you can and can’t say.

I don’t think laws against uttering threats are terribly controversial. Even strong advocates for freedom of speech usually accept that this kind speech is quite rightly criminalized. And that makes sense from a liberty perspective; after all, coercive violence or the threat thereof is antithetical to actual liberty, whether that coercion is coming from the state or some random thug. If you want people to be as free as possible, then you should be willing to accept constraints on the freedom to coerce people.

And that, ultimately, is why terrorism and hate crimes are and should be separate charges above and beyond any criminal charges for the actual acts of violence themselves. The thing to understand about terrorism is that it’s not just an act of violence; it’s also a speech act, in the sense that it’s meant to send a message, and that message is one of coercive violence. I mean, it’s right there in the name: terrorism. The people killed or hurt in a terror attack are victims of the attack, but they’re not the primary targets of the terrorism itself. The terrorist doesn’t care if the direct victims are terrified or not; the goal is to terrorize people who weren’t victims of the initial attack. In other words, terrorism is a coercive threat of (further) violence. It’s like if I shoot the person next to you before demanding your wallet, just to make sure you know I’m serious with my threat. Yes, they’re the victim of the shooting, but you’re the victim of the coercive threat. So there are two separate and distinct crimes here, the act of violence and the implied/explicit threat of further violence.

Hate crimes follow the same basic principle. The only real difference is that terrorism’s coercive threat is typically aimed at the population at large, whereas a hate crime is aimed at an identifiable subset of the community. Beating up someone you hate as an individual doesn’t really send a coercive message to anyone else; beating up someone because they’re a member of a particular group does. 

Against Presidential Immunity

    Some years ago I wrote a piece, on my oooold personal web page, discussing the case of a farmer who had killed his severely disabled daughter with carbon monoxide. There was ample reason to believe that he considered this an act of mercy, and that he believed she was suffering greatly. There was little reason to doubt that he loved his daughter. And yet there was no doubt that he had killed her, in clear violation of the Criminal Code of Canada. 

    In that piece, I expressed some sympathy for the man's predicament, but concluded that it was legally appropriate that he be found guilty. Indeed, because he clearly intended her to die and was not merely indifferent as to whether or not she survived his efforts, it definitely met the criteria for first degree murder, but because even the prosecutor thought a life sentence with no possibility for parole for 25 years seemed harsh for someone in his situation, he was only charged with second degree. I thought, and still think, that the appropriate way to address this kind of tragic case, if we feel a need for leniency, is through a pardon rather than a not guilty verdict.

    And yes, I know that a pardon is a risky thing to gamble on, because not everyone thinks his crime should be pardoned, and that might include the pardoning authority. Fine, so be it. But the point here is that taking a life is a very, very serious decision, and really ought to be taken seriously. If you do not think ending your child's suffering is at least important enough to warrant serving a life sentence, then maybe it's unrealistic to expect someone else to think you deserve to be pardoned. 

    So the recent U.S. Supreme Court decision granting immunity from criminal prosecution to the President for "official acts" strikes me as exactly the opposite of this kind of reasoning. I certainly would never say that the President might not be called upon to make extremely challenging and perhaps even criminal decisions. Ordering F-16s to shoot down a hijacked passenger jet, for example, is something we would all hope never becomes necessary, but is within the realm of possibility, and if there's any reason to doubt the extenuating circumstances, a pretty heinous crime.

    But here's the thing: I don't want someone to approach this question lightly. I don't want them to be "nimble" in deciding. I want them to only undertake such a fateful decision if they are willing to throw themselves at the mercy of the court and accept whatever judgment comes. Giving blanket immunity for "official acts" might be fine if we could trust that the decision-maker had a strong moral compass and character, but that's not something we can ever rely upon, especially if we offer them immunity up front. 

    This is a recipe for dictatorship, and not a benevolent one. Any leader who wants this kind of immunity absolutely should not be given it, and anyone who deserves it will not want it. 

The Arrogance of Common Sense

     I know I haven't posted here in quite a while. It often happens that I have an idea for something I might want to write here, and then I realize I've already said what I wanted to say about the topic. There's stuff here I've forgotten I wrote, though of course I remember it once I look at it again.

    A few days ago, a friend asked me about something he thought he'd seen here on my blog, but couldn't find it, and I realized it's something I had not, in fact, written about, not exactly. One of those frequently forwarded emails, supposedly an "obituary for common sense", the kind of thing I probably would have torn apart here, but in fact never did. So here I am, having thought about it a few days, and at last posting again on this long neglected blog.

    I'll not refer here much to the "obituary" or provide a link to it, as it's not especially remarkable in itself. What I want to talk about is not the specific details of that particular document, but rather the attitude it represents, a misplaced elevation of "common sense" above actual expertise.

    Don't get me wrong; I have nothing against common sense. Last week I was having a conversation with someone about the reason why we have jury trials, with juries made up of random citizens rather than recognized experts, and "common sense" is a big part of that. The legitimacy of the law's claim to our obedience depends on us, as common ordinary citizens, recognizing the judgments of the court as coherent and intelligible, and the best way to do that is to have a random selection of citizens actually make the judgment. 

    But it's important to point out that experts still play a role in the process. The judge applying and enforcing the rules of court, and the lawyers for each side in the dispute, do need to have some actual expertise in how law is done, and expert witnesses may be needed to help the court to understand the implications of complex or subtle bits of evidence. In all cases, though, the matter must be made intelligible to the ordinary "reasonable person", who is presumed to possess the faculty of common sense.

    So common sense is great. I'm all for common sense. But common sense is a faculty, not a set of facts. My complaint here is not about people using common sense, but about people mistaking their preconceptions and first impressions of a subject for common sense. "Gosh, I look out at the horizon and the world kinda seems flat, so common sense said the world is flat."

    No it doesn't. Common sense says that you can be mistaken about stuff. Common sense says that experts who have studied a subject their entire lives probably know more about it than people who haven't.  Experts can be wrong, of course. But common sense says you shouldn't just assume they're wrong because  your conclusions are different, especially if you haven't spent as much time studying the matter as they have.

    "Common sense" is just used so often as a political rallying cry to reject the advice of experts as "elitist", and the tragedy of it is that it really does not need to be so, as the example of the jury trial demonstrates. At a jury trial, when there is some issue that may be difficult for the average lay-person to understand, you have legal experts examining and cross-examining an expert witness in order to make the relevant aspects of the issue clear enough to the jury to reach an informed verdict. You never have to just trust the expert testimony; the process gives you ample opportunity to decide for yourself if this guy sounds like he knows what he's talking about, especially when he's being cross-examined by the lawyer for the other side doing their best to discredit damaging testimony. 

    And we can, to a large extent, do that ourselves. I have never known an academic or expert who was not more than willing to talk at length about their research, and explain how they had come to the conclusions they'd reached, and include all sorts of qualifiers and caveats about the uncertainties, and it doesn't take a huge amount of education to be able to ask intelligent questions and make a good faith effort to understand the answers. But it does take honesty and humility, to acknowledge when you don't understand an explanation and ask for clarification. 

    Which is probably the point. Humble honesty is very hard for some people, and doesn't sell well to certain voting demographics. It's easier to get behind someone who confidently proclaims he has all the answers than it is to back someone who openly admits to uncertainty. And "common sense" as a phrase tends to suggest a comfortable certainty, so it's no surprise that populist politicians so frequently claim their policies are based on common sense when they reject the consensus of actually knowledgeable experts. 

    Ultimately, and ironically, this appeal to "common sense" is fundamentally authoritarian, in that declaring something to be common sense is a way of shutting down any kind of argument about it. It doesn't matter than someone might be able to produce terabytes of data and analysis that, once understood, conclusively proves beyond any doubt that their conclusions, however counterintuitive, are correct, if you can just dismiss it as contrary to common sense. 

    And that strikes me as very dangerous.

For Your Consideration

     Some questions were raised about a parenthetical remark in a previous post, about preferring a minimum income to a minimum wage, that I'd like to address in greater detail, which may take a couple of posts. So in this one, I'd like to address the issue raised by the first comment, paraphrased thusly: "What is the value of money given 'free of charge'?"

    This is a common objection to minimum income plans, that they amount to giving people something for nothing. The most obvious counter to that is: So what? What's wrong with giving people something they didn't earn? People inherit wealth they didn't earn. People collect rent and interest and other income just from owning stuff, without actually doing anything beyond merely being the legally recognized owner of something, whether or not they did anything to deserve it. In our free market capitalist system, we don't object to people making money through the ownership of capital, including capital they merely inherited. So what exactly is the harm in giving people money they didn't do anything to deserve?

    But I want to argue that, in fact, we do deserve it, all of us, because of our collective ownership of the enterprise we call the state. And what is it that we have paid for our ownership, or as we say in contract law, what valuable consideration did we provide? I argued in an earlier post about the liberty dividend that we invest our liberty, but that's a rather abstract and intangible thing, even if it does count as good consideration at law. When we agree to do or not to do something that we might otherwise have done, such as in a non-disclosure agreement when we agree not to exercise our freedom of speech in a way that reveals someone's secrets, that is a real and valuable consideration capable of supporting contractual obligations on the other side. 

    So what I want to argue here is that what we give the state in exchange for our share includes something much more tangible: everything that anyone else owns, that it is possible to own. I mean this literally, because the entire concept of ownership is a creature of the state, of society. What prevents you from using "my" property? You may say it's your morality, and that's all well and good, but people's moralities differ, as do their ideas of who should own what, and it is the courts, applying the laws of the state, which will decide that. In other words, I have surrendered my freedom to use (or attempt to use, and probably end up fighting over) everything in the world that is deemed by the state to belong to someone other than me. Now, the state might deem that there are things which belong to me, which  this means that you, too, have surrendered to the state the freedom to use my stuff (again, a subset of all of the stuff that belongs to people other than you).

    Therefore, since it is the state which exercises ultimate authority over who owns what property, we have each of us invested all the property in the state. We don’t usually speak of it this way, but this is exactly what sovereignty is: the exclusive right to make and enforce rules or policies about who can do what with what. In free countries like Canada, the state generally delegates much of the decision-making to individuals by defining in its laws what we think of as private property rights, but these are ultimately conventions, subject to legislative or judicial amendment, and thus in a very real sense we have endowed the state with all the property there is.

    I claim, then, that for this reason every citizen of the state should be considered a shareholder in it. When, as in Canada, the Crown retains the rights to natural resources like forests, fisheries and minerals, it should manage these assets to the benefit of its shareholders (citizens), whom it owes a fiduciary duty closely analogous to that owed to a corporation by its board of directors. The shareholders are entitled to a voice in management, which usually involved electing delegates to represent them and advance the policies they favour.

    I do not intend to argue here that issuing regular dividends from the proceeds of the corporation is a good idea. I’ll probably address that in a later post. All I mean to establish here is that doing so would not at all be giving people “money for nothing”. We obtain our shares in the state not “for nothing” but by virtue of being bound by its laws, which is good and valuable consideration. And owning a share in the state means that any dividends that state may issue (such as a universal basic income, for example) are not charity, but a duly earned benefit.

False Flags

    Every once in a while I see a meme shared that purports to be a letter from Sir Wilfrid Laurier, who was Canada's 7th Prime Minister, urging that newcomers to Canada from all nations are welcome but they must become Canadian, dagnabbit! and learn to speak English or French and leave behind all them thar furriner customs that clash with our beer, hockey and Timbits. (It didn't actually reference these thing, but it was very much about assimilating to the Canadian way of life, whatever that is.) One version of this meme even came with a grainy black and white photo attached, showing a man apparently giving a speech in what looked like a campaign rail stop. 

    "Hmmm," I thought upon looking at the picture, "That looks nothing like Wilfrid Laurier. In fact, I think it looks like Teddy Roosevelt." So I googled a few key phrases from the letter, and sure enough, Laurier never wrote it: someone had taken the real letter, which had been written by Roosevelt, and just replaced all the references to the U.S. with Canadianized replacements ("English and French" in place of "English", etc.). Apparently it had been circulating enough to warrant a French news service debunking it here.

    It was at once both infuriating and hilarious. Infuriating because of the sheer dishonesty involved. There's no way this was an innocent mistake; whoever took that Roosevelt letter and altered it to present it as coming from Laurier knew perfectly well that they were fabricating a deliberate lie. What possibly could possess them to think this was an act of Canadian patriotism? If it was meant as a joke, though, it was hilarious, taking an expression of distinctly American nationalism and passing it off as Canadian patriotism by slapping on a few superficial (and false) Canadianisms. 

    I feel the same kind of insult whenever I see a vehicle drive by with a big Canadian flag waving, often supplemented with "F*CK TRUDEAU" or similar slogans. It's not that I think a true Canadian shouldn't criticize the Prime Minister. Rather, it's that I feel like my flag is being co-opted to stand for something that's not really Canadian, as if I won't notice a cheap "LET'S GO BRANDON" knock-off.

    

The Nameless Fallacy

    I haven't seen this particular fallacy described elsewhere. It happens often enough that I was thinking it ought to have a name, and I was thinking of calling it the fallacy fallacy, but that refers to a different fallacy, and it seems to me it's better to leave it unnamed, in light of its nature.

    So what is it? It's the belief that calling out the name of a fallacy is an argument. "That's a straw man" or "That's a No True Scotsman" are things you'll hear all the time in debates, but it's almost never a good idea to use the name of a fallacy in an argument, for several reasons.

    First, it's very often misused. Knowing the names of fallacies is no guarantee that you actually know what makes them invalid. Many people seem to think that ad hominem just refers to name-calling, for example, or will call out "No True Scotsman" if you try to define a term in a way they don't like. 

    Second, it's lazy. Even if you do happen to properly understand what the fallacy is and why it's a fallacy, simply naming it is seldom an efficient shortcut to making clear your opponent's error, in part because (remember the first reason) there's a good chance your opponent either won't, in which case you're wasting words.

    Third, it very often leads to completely unnecessary side-arguments about the definition of the fallacy itself. "What? That wasn't an ad hominem! Ad hominem is when I say you're stupid, therefore your argument is wrong." "No, ad hominem means a personal attack!"

    Fourth, it's likely to be seen (often correctly) as showing off, an attempt to telegraph that you know something about the technical aspects of argumentation and therefore are not to be messed with, you master of logic you. 

    Finally, it's almost always completely unnecessary. Remember that a fallacy is a flawed argument, an error in reasoning that makes it vulnerable. You don't need to name the flaw in order to attack it. For example, recognizing that an ad hominem is a form of non sequitur where the premise ("You're stupid") does not lead to the conclusion ("therefore, you're wrong"), you can note that you do not need to refute the premise. "I may or may not be stupid, but stupid people can be right and smart people can be wrong. Show that my argument is wrong." 

    That is, by the way, why it's definitely useful to have names for the various types of fallacies, so we can discuss and analyze them and learn how to recognize and counter them, and to avoid committing them ourselves. Shop talk about rhetoric benefits greatly from having terms of art like these. But naming them in the middle of an actual argument is rarely a good move. 

    

Understanding over Believing

  I've been thinking about this authoritarian epistemology idea for some time now, and I think I have identified a potential remedy. The idea is to stop thinking in terms of knowing (or believing-what-is-true), and focus instead on understanding.

We have long put a great deal of emphasis on the value of knowledge. For most purposes this is a perfectly serviceable value, and the pursuit of knowledge is certainly a noble calling.

But the problem arises when we take the authoritarian mindset into account. As I argued before, the authoritarian tends to see such things in terms of power, and in particular construes the act of telling someone something and being believed as an exercise of power. That's not a completely irrational model; the ability to persuade someone to do something is very much a kind of power. And as Voltaire said, anyone who can make you believe absurdities can make you commit atrocities. So it's not at all unreasonable to be wary of anyone trying to assert that kind of control over you, even if it's something as innocent as informing you what time it is.

The problem is this: when you regard the transmission of information as an attempted exercise of power, it becomes very tempting to resist being informed of anything, because being told something and believing it becomes a kind of surrender of autonomy, a failure of will. You feel like someone may be laughing at you behind your back, as if it's April Fool's Day and you're not in on the joke. And so disbelieving whatever you are told becomes an act of defiance and a demonstration of personal strength. What matters isn't so much whether you're right or wrong in any objective sense, but how bravely you stand against a more powerful opponent, which is why this sort of conspiracy theory tends to target The Government, The Mainstream Media, The Academic Elite, or whoever else might represent the dominant establishment view. Which is all well and good, because the establishment really ought to be challenged regularly, but when you adopt your beliefs just to be contrary, you're very likely to be wrong most of the time. Worse, you deprive yourself of the capacity to be right, because the more evidence is compiled in favour of the opposing view, the more your clinging to your wrongness feels like a grand display of heroic resolve. 

    That sense of heroic resolve isn't nothing. It's a legitimate emotional motivation, that need to feel some pride in one's accomplishments or worthiness, so maybe we can find a more constructive way to satisfy it.

    That's why I propose instead to focus on understanding instead of believing/knowing. Understanding is not a failure of will, but an accomplishment of intellect. If I explain my view to you, and you succeed in making sense of it and how my claims fit into your model of the world, that is your triumph; you own that understanding, and while I may have helped you attain it by making my explanation as clear and accessible to you as possible, I cannot command you to understand me. It is something you can only ever do for yourself.

    Moreover, once you understand a proposition, it's up to you to decide for yourself how likely it is to be true, given all the other things you understand about the world. Deciding that what I say is probably true is no longer a surrender of your autonomy to mine, but your own independent conclusion that you can take ownership of and can revise as you see fit, and thus not a sign of weakness. You can and should feel proud that you have successfully made sense of what someone else has to say, especially if it's something you might have been initially inclined to dismiss as obviously wrong.

    None of this is to say that you shouldn't be aware of the possibility of people lying. Quite the opposite: you should be always alert to the unreliability of anyone and everyone's testimony, whether they be lying, mistaken, confused or otherwise fallibly human. This is itself an important part of the process of understanding. It's just that you shouldn't fall into the laziness trap of dismissing everyone who disagrees with you as either dishonest or stupid, because that's generally just an excuse not to bother trying to actually understand them. They might well be dishonest or stupid, but it's dangerous to underestimate an opponent, or to see them as an opponent when they might not actually be one. 

    Nor should you completely abandon the possibility that the person might be mistaken in some way. You should try to start from the presumption that they're at least as smart as you are, and that if something seems wrong it's probably because you haven't properly understood it yet, but they might well have made some error in reasoning they haven't noticed yet. If you can identify and articulate exactly what this error is, that's a particularly glorious victory, but don't be too tempted to take shortcuts to it; you still have to really understand what they're trying to say to be able to pull this off effectively. 

    Once you shift from knowing to understanding, your real opponent is no longer the person you're arguing with, but the problem you're arguing about. If you can defeat the problem, you'll never lose an argument.