If I could lead the cat herd

If I could lead the cat herd, we'd make a few changes. Why?

For a start, I don't see moderate/liberal religion as a terrible problem. I've really never bought into this element of what I see in, say, the work of Sam Harris. Some forms of liberal religion are so non-literalist that they can't even be considered incorrect - they make no or few truth-claims about the supernatural and see the holy books as historical documents to be studied for whatever wisdom they contain, much as we study The Iliad. These sorts of non-literal religion are potentially all consistent with each other, and also with humanistic philosophies.

Even more literalist religious positions that involve a belief in some kind of supernatural order may be no great problem, and indeed they can inspire people to do good. I'm not going to say that Martin Luther King was a bad guy just because he believed in some (probably heretical) version of Christianity.

These kinds of religion only become a problem when their leaders tell critics of religion to shut up, and try to convince everyone that almost all religion is harmless or even beneficent. Thus, Karen Armstrong is fine when she enunciates her own positive religious understanding. She only becomes a problem when she tries to convince people that all religion is "really" like that and we should stop being so nasty about it. I can't imagine her ever flying a plane into a building or even trying to introduce draconian laws that restrict personal freedom (though perhaps I'm wrong about the last bit). Really, if she'd just offer her positive message and stop trying to deprecate the less savoury aspects of the religious traditions, we could get along.

Note, though, that Armstrong is no worse than an explicitly atheistic accommodationist like Chris Mooney. It's not her mild religiosity that's the problem; it's her urge to dampen a necessary debate about the place of religion in modern society.

Still, the real problem is not religion in itself. Many of the pagan religions of antiquity, after all, were not so bad. They didn't have very much of the elements that I'm about to identify. Indeed, those elements are very largely confined to the Abrahamic tradition. To some extent, they turn up in the Eastern religions, but much less so.

The problems are apocalyptic and totalitarian thinking; the accompanying spirit of intolerance and exclusivity; misogyny, sexism, and shame about the body; and associated homophobia. Greek paganism certainly had more than its fair share of sexism - it's easy to find this running through the myth system. But the other things just listed ... well, not so much. Ancient paganism wasn't totalitarian, or apocalyptic, anywhere near as intolerant as Christianity has proved to be, or anywhere remotely as obsessed with sexual sin and guilt. If Greek paganism made a comeback, it would have to adapt to the idea of women's equality, but otherwise it wouldn't be a huge issue. It wouldn't create Crusades and jihads, suppress art and science, persecute homosexuals, or torture heretics.

By contrast, much in the Abrahamic tradition is totalitarian, apocalyptic, arrogant, officious, intolerant, misogynist, homophobic, puritanical, prurient, and persecutory. The totalitarian, apocalyptic, and persecutory elements, in particular, but also some of the others, were taken over by various ways of thinking they sprung from the Abrahamic tradition, notably the apocalyptic cults of Nazism and Marxist-Leninism. Then there is the specifically anti-Semitic intolerance that looms so large in Christianity, and which led directly to the Nazi holocaust.

But there are modern forms of Abrahamic religion that are politically liberal and not apocalyptic. Some of them have also purged themselves of the other stains on their tradition - the misogyny, etc. I don't see adherents to those forms of religion as my enemies, for much the same reason as I don't see religion itself as the real enemy. In the American culture wars, progressive religious people have defended such things as gay rights, abortion rights, rights for women more generally, racial equality, and freedom of speech. In recent decades, organisations with large numbers of religious adherents such as People for the American Way have been invaluable in the struggle against creeping theocracy.

So if I were leading the cat herd, I'd like to stress that the problem isn't so much religion in itself, or even the Abrahamic tradition in itself. It is, first, the many deplorable elements - the apocalypticism, totalitarianism, sexist, puritanism, intolerance, etc. - that are so prevalent in the Abrahamic holy books and traditions. But it is not every single element of those traditions.

And more proximately, the problem is whatever systems or styles of thought have absorbed the worst elements of Abrahamic tradition. This includes the worst kinds of apocalyptic communism, Nazism, and fascism, all of which arose from Christianity.

I think the above is (1) more accurate than a line that identifies religion itself as the problem, even when the religion concerned is entirely or relatively anodyne; (2) principled in identifying the real problems that have come to us, historically, through the Abrahamic tradition in particular; (3) likely to help us deal with mildly religious people who share our political values and are just as repulsed as we are by the more barbaric elements of their traditions.

National Prayer Day to go ahead in the US

National Prayer Day, on 6 May 2010, will go ahead in the US despite the court ruling that its supporting legislation is unconstitutional.

Nothing much should be read into this, however, since the court issued an injunction that will only come into effect after appeals from its judgment are exhausted (assuming that the judgment survives appeal). The case is headed to the next level of the court system, so the government is legally able to go ahead this year.

I'll get to the full opinion of Judge Crabb as soon as possible.

A no-brainer? - Freedom from Religion Foundation v. Obama

This post is just a place marker: for the moment, note that a federal District Court in the US has just (on 15 April) struck down a statute providing for a "national day of prayer". I haven't yet read the 66-page opinion of Justice Crabb.

This case should have been a no-brainer - if a statute of this kind is not an unlawful establishment of religion, then I'm going to be the next pope.

Will the US government appeal? I have no idea. But I can't see how an appeal could be successful. Well, um, yes ... I'm afraid I can. It might go all the way to the Supreme Court, which seems like it's itching to craft some kind of de minimis exception so as to save popular forms of "ceremonial deism", such as the words "under God" in the Pledge of Allegiance. This case could be another such example. So, okay, I'm not sticking my neck out and saying that this decision will definitely hold up if appealed.

What I do say is that it ought to stand, as a matter of constitutional principle. Under the US Constitution, Congress has no business enacting a statute that so explicitly endorses a particular kind of religion, in this instance the kind that involves prayers to a God of the sort who listens to them.

Good for the Freedom From Religion Foundation for taking this on. I'll say more when I've read the opinion of the court.

Index on Censorship on the BCA v. Singh libel case

Go here for an interesting discussion and some links.

(H/T Ophelia Benson.)

Cold water

Expelled revisited 

 A couple of years ago, I wrote in defence of the makers of Expelled, who'd used a small amount of John Lennon's song "Imagine" to make a point in their meretricious film. Jim Lippard has a very good summary of events in both the real world and the blogosphere here. Although I don't claim to be an expert in intellectual property, and particularly on the American statutes and case law, it seemed to me throughout that the principles behind the law should favour the makers of the movie.

When the case found its way to court, the judge ruled in their favour, using reasoning quite similar to mine (though obviously far more informed about the detail of the actual law).

Although Jim Lippard took the same view as I did, we were swimming against the tide of opinion in those waters of the blogosphere that we tend to frequent. I was amazed at how many atheists, sceptics, and freethinkers suddenly became advocates for the most overreaching aspects of intellectual property law, not to mention the extravagantly generous interpretations of it in the practices of the American entertainment industry. It seemed that they became zealous advocates of IP rights because the "bad guys" in the case under discussion were the ones who were arguing for fair use and for constraints on intellectual property in the name of free speech. They were not standing back and thinking about what the policy of the law - which applies to both "bad guys" and "good guys" - should be.

Despite the shoddy aspects of Expelled, which features a defence of Intelligent Design and involved various morally questionable practices in its making, intellectual property rights, specifically those relating to copyright, are an artificial exception to our freedom to use information. There is a reasonable policy behind intellectual property: it rewards efforts in creating such things as inventions, designs, stories, songs, and so on, and thus encourages creators by giving them a source of income, even wealth in some cases. Fair enough so far. But it thereby carves out an exception to the ability of people to say what they want, adapt the inventions of others to their own purposes, etc. The exception can't be allowed to swallow up the rule. Intellectual property rights should not be used to wipe out large areas of free speech.

On pouring cold water 

Now and then, I am going to pour cold water on the enthusiasms of people who are generally my allies but don't necessarily have a good understanding of how the law all fits together, or of the policies and principles behind it. The controversy over Expelled and its use of "Imagine" was one such example. Obviously, no one has to defer to me. In some cases, my views on legal principle will not be supported by courts when push comes to shove (though I have a pretty good success rate over the years, both in my prognostications on this blog and during my years of quasi-legal work and my briefer time in professional legal practice). Be that as it may, I'll go on saying what I think about the law and the policies and principles behind it, even when I find myself in the uncomfortable position of having most of my friends disagree with me.

Arrest the pope? 

No one will disagree with me, I imagine, in my support for the reasoning of the Court of Appeals in the UK in Simon Singh's libel case. I think the logic of the joint judgment is very compelling and that there was little prospect of challenging it successfully in the Supreme Court (formerly the House of Lords - a judicial body that is not the same as the upper house of parliament in the UK). It looks as if the BCA has come to the same conclusion, based on its legal advice.

But some are certainly going to disagree with me when I say that the current calls to arrest the Pope when he visits Britain later this year are legally misguided. It only took me a few hours of research on the internet to conclude that the legal theories being offered by Geoffrey Robertson and others are very dubious. My first response of any substance was in a comment over at RD.net:

If Geoffrey Robertson wants to test the law on these issues, I wish him every success. I have to say that I don't think the case will succeed. The claim that The State of the Vatican City is not a legitimate country in international law looks murky to me. It does look as if it's legally a country, even though not a UN member, and that the pope is its head of state. And then there's the legal effect of the fact that the pope is also the head of the Holy See, to which the UK doubtless provides an ambassador and which it otherwise recognises as a sovereign entity in its own right (in addition to Vatican City). That alone would seemingly give the Pope immunity from prosecution in the UK. And odious as the institutionalised sexual abuse of children within the care of the Catholic Church has been, this is not a classic case of crimes against humanity. Normally, you'd think of a campaign of persecution by a country or an unofficial regime of some kind (like warlords or rebels who are in control of territory). In the classic kind of case, they'll be mounting, or at least somehow allowing, a recognisable campaign of persecution and terror against either a group of their own citizens or people who live in territory where they've established control. What we have with the Catholic Church's institutionalised cover ups of rape and other abuses by its priests, etc., doesn't easily fit that picture. There's a legal definition, and arguably it can be broader than that sort of case. All the same, Robertson will need to work very hard to show that this situation falls within the definition, rather than just being a whole lot of largely-unconnected crimes in many different countries, properly falling under the ordinary laws of those countries. All that said, there's at least been something like "a wide practice of atrocities tolerated or condoned by a government or a de facto authority" if you read those words cold. I can see why somebody like Robertson would be prepared to argue about how far the wording stretches to cover unusual situations. So why not get the point clarified by the courts, if possible? 

I've now changed my mind about this. I was right to think that Robertson's theories are dubious, but I now think that I initially underestimated just how dubious they are. It now appears to me that Robertson is seeking a very expansive interpretation of an area of international law, i.e. the law relating to crimes against humanity, that is intended to be construed strictly and narrowly. For a stronger dose of reality, see this thread on Jack of Kent's blog. Robertson has a powerful legal mind, of course, but he is also pushing very hard against the limits of the law. My confident prediction is that none of this will intimidate the pope into cancelling his visit to the UK. When he visits to the UK, he will not be arrested for any crime.

"So what?" you ask. So, let's be responsible 

"Fine," you say, "but so what?" Why not use discussion of the outer, speculative limits of international law as a way of giving publicity to the pope's past involvement in the practice of transferring pedophile priests to new parishes, rather than removing them from the priesthood? Well, I'm all in favour of publicising this. The Church's approach did enormous damage, and we can see what a morally corrupt institution it is. But I'm not in favour of obtaining publicity by spreading to the public highly speculative, and probably incorrect, theories about the law. Not unless we give them something more like the full story.

In my opinion, Robertson's conduct is getting close to irresponsibility. I say "getting close", because there is a degree of hedging when you read what he says carefully. But Robertson is a noted expert on international law, and people who are not expert - and especially people with no legal training - are likely to defer to him. Some are not noticing the degree to which he is hedging, and, frankly, I don't think he hedges anywhere near enough to provide a realistic impression. It would be good if his public pronouncements contained a stronger element of realism, amongst the creative theorising. 

If you take Robertson's theories as fact, or as the nearest thing you can get to it in the law, you'll be misled. For scientists, they are the equivalent of a radical and untested set of hypotheses, not the equivalent of well-corroborated theory. I wouldn't want to square off in a courtroom against someone with Robertson's legendary forensic skills, but I don't trust his judgment (at least as he's expressed it publicly so far) on this issue. He's writing like an advocate in the courtroom, putting a brave legal theory in rather one-sided way. That's what barristers do (of course, it's the opposite of what philosophers do, and also the opposite of what barristers do when actually preparing to go to trial; in both of those cases, the task includes identifying and considering the strongest case for the opposing viewpoint). 

No matter how skilled a lawyer Robertson may be, he's not necessarily correct on any particular question of law that hasn't been tested. In this instance, I think he's almost certainly wrong if he thinks there's any reasonable legal prospect that the pope could be arrested in the UK for crimes under any municipal jurisdiction or under international law. That's not going to be a popular conclusion among my friends, but it's what I honestly believe.

BCA throws in the towel

h/t Kylie Sturgess.

The British Chiropractic Association has filed notice of discontinuance to end its libel action against Simon Singh! I don't know what deal, if any, may have been done on costs (or anything else), but this looks like an admission of defeat.

Yay! Here's a victory for scientific reason and for freedom of speech. I'll have more to say as and when more is known.

Edit: Useful posts (and threads) by Jack of Kent over here. Quote: "The appeal case is, in my view, now binding authority on the High Court that adverse but good faith statements regarding evidence must be treated as having the defence of honest opinion."

That sounds right, and it makes the UK law much more manageable for people who wish to engage in robust public debate about matters of contested evidence. There's still a long way to go, though, to give stronger protection to freedom of speech.

Further edit: Go over here for what is currently your best source of information. It now seems clear that no deal has been done on costs, and there'll need to be further negotiations/litigation on how much of Singh's 200,000 pounds of legal fees gets paid by the BCA. Since the BCA took what proved to be an unmeritorious claim, Singh should get full costs. However, note that "full costs" does not actually mean everything he spent. I'm not familiar with the details of the British system, but it's similar to the Australian system, so what I'm about to say will be at least approximately correct. Go to a British lawyer if you want something more precise.

Here, it works roughly like this. Costs would be assessed on a party-party basis, which essentially means that all the items in Singh's legal bill will be assessed not on the basis of what he actually paid but what such items cost, nominally, against a standard schedule of fees used by the courts for assessing costs. Lawyers are free to charge more than this, and they almost always do. Items considered unnecessary or irrelevant to the litigation will be struck out in the assessment, though that probably won't be (much of?) an issue.

I suppose the policy behind this approach to costs is that losing litigants can't be expected to pay monstrous sums merely because the winner chose to use incredibly expensive solicitors and counsel. The system may be defensible in that respect, but the downside is that even winning litigants very seldom get their actual legal costs back.

There's some talk on the site that I linked to above that Singh will still end up about 20,000 pounds out of pocket. From my experience, that actually sounds optimistic, but perhaps his lawyers were very reasonable - compared with market rates - in what they actually charged him. Be that as it may, it's still not great, especially when you factor in how much income he has lost from being tied up on the case, unable to work on other things. Libel law really does need to be reformed so that people who speak their minds are not put through all this lightly.

My letter (well, email) to Penny Sharpe MLC

Dear Ms Sharpe,

I am writing to express my support for the planned trial of a secular ethics course developed for NSW schools as a voluntary alternative to devotional scripture classes.

It is disturbing that the trial is being opposed on the basis that secular ethics classes may prove more popular than devotional scripture classes, and may thus reduce the number of students attending the latter. This argument presumes that viable sizes for the scripture classes must be maintained in NSW schools at all costs, whether they are popular with parents and children or not. That, however, is completely the wrong way of looking at things.

Scripture classes in state schools, taught from a devotional viewpoint (rather than an objective and critical one), are both a privilege and an anachronism. In modern pluralistic democracies, the state should be neutral about the truth and social value of religion, and therefore should not be giving opportunities for religious organisations to present their particular, contested worldviews to school students - at least not unless the same opportunities are given to the presentation of naturalistic worldviews. Thus, the provision of time for devotional scriptural classes is a traditional privilege that has been accorded to religion, but which cannot be strictly justified in contemporary circumstances.

Nonetheless, there is a long tradition of NSW schools providing this privilege, and no one is seriously arguing for its removal. No one is even arguing for the same privilege being extended to atheist, rationalist, or humanist groups that might wish to present students with the merits of philosophical naturalism and a life based on reason - though, strictly speaking, the logic of doing so is irrestible if the state is to be neutral between religion and its rival worldviews.

All that is being suggested is that a secular - but NOT anti-religious or explicitly naturalistic - alternative be provided for those students who would prefer it. This is an extremely modest step, and even this is being undertaken only on a trial basis. The degree of solicitude being given to religious sensibilities is already quite marked. The government is bending over backwards to accommodate them. And yet, we still see some organisations and individuals wanting more: seeking, in effect, a guarantee that no effective competition to devotional scripture classes will ever be introduced into NSW public schools, and that scripture classes will always have viable numbers irrespective of how attractive they are to students and parents.

The opposition to a trial of ethics classes is unreasonable and contrary to good political principles. In particular, it betrays a misunderstanding of the relationship between church and state. It is not the purpose of the state to prop up religion, but merely to protect and promote its citizens' worldly interests, including interests in the education and socialisation of children.

Conversely, the proposal for a trial of secular - but, once more, not anti-religious - ethics classes as a voluntary alternative to traditional scripture classes is more than reasonable.

I urge that the government go ahead with the trial, and that you not be swayed in any way by the current campaign against it. While there may be many emails and letters coming to you in opposition to the trial, that merely reflects the conduct of an orchestrated campaign. I can assure you that the trial has strong support within the community, and indeed that I am hearing much outrage about the actions of Archbishop Jensen and others in attempting to get it scuttled before it even begins.

Yours sincerely,

Russell Blackford

Death of Antony Flew

Antony Flew, died a few days ago, aged 87. Flew was a leading philosophical atheist for most of his career, though he switched to a form of deism in the past few years.

He has been much reviled for this, although deism in itself is often a progressive position and it has the merit that it can't be disproved. Historically, many of the American Founding Fathers were deists, as were most of the philosophes of the French Enlightenment. It's possible that Hume and Mill were deists, though it's very difficult to sort out Hume's true position.

These days, of course, the motivation for hanging onto a minimalist god, such as that of deism, seems rather thin, and Flew's own reasoning seems to have been of the "God of the gaps" variety: he could not believe that purely natural causes were sufficient to explain the origins of life. Well, it's true that we don't have an intellectually compelling theory of abiogenesis, but there are many things that we now understand pretty well, though they once defied our efforts. Explanatory gaps tend to close, though (perhaps fortunately) more questions tend to open up.

Perhaps more worryingly than his eventual profession of deism, Flew came to embrace extremely right-wing political positions. Even here, he initially had a point in his criticism of doctrinaire forms of political egalitarianism (all doctrinaire theories of morality or political action have their problems). But he moved far beyond reasonable critique of the grounding for egalitarianism to substantively hard-line and intolerant views on issues of the day.

His best work was done when he was young, but he will still be remembered as a great contributor to British philosophy in the second half of last century.

Sydney Anglican Church opposes ethics classes

The Sydney diocese is atypical of the Anglican Church in Australia, both in the evangelical version of Christianity that it promotes and in its highly conservative views on social issues. As if to underscore the latter, its bishop is currently opposing the introduction of ethics classes into NSW schools as a voluntary alternative to scripture lessons provided by local ministers. Apparently the bish is scared that the ethics course will prove too popular and undermine scripture attendance. That must not be allowed to happen, it seems - so the scripture lessons have to be propped up by not giving NSW schoolchildren and their parents any alternative.

Worse than the above, the NSW government is taking notice, and has given the Bishop of Sydney some kind of opportunity to vet the ethics curriculum. Surely this is outrageous. Why should the local leader of a religious denomination have any more say over this than anyone else in the community? There is no serious suggestion that the program is anti-religious in any way (teaching, say, that the Catholic Church is corrupt), which seems like the only legitimate concern the religious could have.

One might, of course, ask why religious instruction is included at all within the public school curriculum of a country like Australia. Isn't this an indefensible leftover from an earlier time when Western countries liked to think of themselves as "Christian"? Surely those parents who specifically want their children instructed in religious dogma can arrange for it to happen outside of school hours - maybe at Sunday School or the equivalent. Public education is an activity carried out by the state, which doesn't exist to promote either religion or anti-religion, or to adjudicate on their respective merits.

Indeed, if the various local religious ministers are to be allowed onto school grounds to teach religious viewpoints, then local humanist or rationalist leaders should be given the same privilege and allowed to teach their anti-religious worldviews to whichever children want to attend. Fair's fair.

Seen from that viewpoint, offering children a secular, but not anti-religious, alternative to scripture classes, seems like a modest step. It will still be a long way short of state neutrality in matters of religion and irreligion.

If the ethics program is any good, it might be better simply to make it compulsory in place of religious education. Or maybe the freed-up time could be used for secular (but not anti-religious) study of comparative religion. A program of study like that might be genuinely beneficial for children growing up in a pluralistic society. It could contribute to mutual understanding. Why, in the twenty-first century, with so many pressures on the curriculum, is precious time in public schools being allocated to (largely futile) attempts at religious indoctrination?

Yet another review of 50 Voices of Disbelief

This one from an Anglican Church website in Canada!