About Me

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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Sunday, May 31, 2009

Myers on Plantinga - and the concept of hatred

Over at Pharyngula, P.Z. Myers has a good post on Alvin Plantinga's recent article in Christianity Today, in which Plantinga summarises his well-known argument (not especially original to him) about the alleged incoherence of naturalism. The argument is supposed to show that if naturalism - by which he means the philosophical position that there is no God or anything similar - is true we have no reason to trust our capacity to discover truth about the world. We cannot take such a philosophical position, Plantinga argues, while also maintaining that human beings evolved from earlier forms of life.

This is supposedly because evolution could not give us a reliable capacity to discover truth; it could only give us sufficiently useful behaviours to survive and reproduce. If we trust our capacity to discover truth, so Plantinga tells us, we are committed to believing in a God who can guarantee that our reasoning capacities are essentially reliable.

It's an interesting argument, and there is much to be said about it. In the end, though, it's nonsense. First, it assumes a false dichotomy: either we have a highly reliable (even Godlike) capacity to discover the truth or we have no such capacity. Why not assume that we have a limited capacity to discover truths about the world, and that, thanks mainly to language, we have a cultural capacity to improve on this over historical time (and with great effort)? And why assume that some general-purpose capacity to perceive the world around us accurately, and to model it via processes that conform with basic kinds of reasoning (induction, hypothetico-deductive reasoning, the fundamentals of first-order logic), would not be good for survival and reproduction? Our brains may use heuristics that are misleading outside the contexts in which we evolved, but any organism will do better if, for example, it uses induction when it models its environment. If a small predator makes the mistake of attacking a large predator, gets mauled in the process, and barely escapes with its life, it will be in big trouble if its brain models reality by the equivalent of an argument that it's "due" for success next time. There is an indefinitely vast range of circumstances in which it's better for any organism to model the local environment on the basis of ordinary cogent ways of reasoning.

Myers emphasises the limited part. Our capacity to discover the truth about the world is not Godlike, but very constrained. It takes great effort to get robust findings about how the world works, once we step out of the most everyday observational level.

That's correct, of course, and I should add that what we actually find when we gradually build up knowledge of the past, the very small, and the very distant, for example, may end up being highly counterintuitive. Indeed, over-active agent-recognition heuristics that would have evolutionary advantages might partly explain the popularity and persistence of beliefs about supernatural intelligences.

The human brain is far from being a perfect truth detector. It's so imperfect that it looks far more like the product of evolution than like the design of a benevolent god. But I'll leave readers to have a look at Myers' rebuttal for themselves, since there's another aspect of Plantinga's article that I want to draw attention to.

Plantinga observes: As everyone knows, there has been a recent spate of books attacking Christian belief and religion in general. Some of these books are little more than screeds, long on vituperation but short on reasoning, long on name-calling but short on competence, long on righteous indignation but short on good sense; for the most part they are driven by hatred rather than logic. 

Now, it's true that there's a great deal of righteous indignation in such books as Richard Dawkins' The God Delusion, Christopher Hitchens' God is Not Great, and Michel Onfray's The Atheist Manifesto. There's nothing wrong with that, because righteous indignation has its place. The question in any particular instance is whether or not the indignation is justified. If what is being criticised is sufficiently harmful, then why not? Whether or not it's justified, Plantinga's own article contains a certain amount of righteous indignation. That's all fine, but I do object when Plantinga writes that such books are driven by "hatred".

This use of words such "hate" and "hatred" cheapens them; it takes us to the point where almost any denunciation of ideas and organisations can be described as some kind of hate speech, even though nobody is urging that the ideas and organisations be suppressed or that the individuals adhering to the ideas, or belonging to the organisation be harmed. It's only a step away from characterising your opponents as motivated by hatred to calling for their speech to be banned and branding them as enemies of the social order. These easy accusations of hatred are irresponsible, at best, and we ought to call bullshit on them whenever they appear.

Article 20 of the International Covenant on Civil and Political Rights ("the ICCPR") contains a provision requiring that "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." This requires, among other things, that signatory nations to the convention criminalise speech that can be classified as "religious hatred" but does no more than incite "hostility" to a religion or to its practitioners. Potentially, it's a very dangerous provision. If interpreted too loosely, it could have far-reaching consequences for freedom of speech. Any denunciation of an organisation or a body of ideas is likely to incite at least some hostility. Accordingly, the only thing that prevents the work of Dawkins, Hitchens, or Onfray from being caught by laws based faithfully on Article 20 of the ICCPR is that their critiques of religion do not amount to "advocacy of ... religious hatred".

Of course, they don't; in historical context, the phrase has a different meaning. It doesn't refer to legitimate criticisms of organisations and belief systems. However, there is a tendency in recent times for religious apologists to blur the distinction between harsh criticism of religious doctrines and organisations, on one hand, and some kind of expression of hatred, on the other. Plantinga is merely the latest of many to adopt this meretricious tactic.

I'm not sufficiently paranoid to think that Plantinga is angling to get the speech of his opponents banned. For one thing, he would never succeed in the US, where any such ban would clearly breach the First Amendment. Nonetheless, if it became accepted outside the US that works such as those of Dawkins, Hitchens, and Onfray constituted a form of hate speech, a point would soon be reached where they would be classified as illegal under Article 20 and national laws that are based on it. 

While that sounds like an extreme outcome, it's not such a large step from the current situation where Geert Wilders is already being prosecuted under hate speech laws in the Netherlands, partly over the content of his short film, Fitna. If Fitna is classified as socially-unacceptable hate speech, the line will have shifted, and a fierce critique of religion such as Onfray's The Atheist Manifesto will no longer appear obviously safe from criminal prosecution in such countries as the Netherlands. Wilders has already been excluded from entry to the UK to speak about Islam, though he has never attempted to incite his audiences to violence. 

Tiresome though it may be, we need to point out each time this accusation of hatred is made that the word "hatred" is being misused and debased. Of course, Plantinga and his comrades are too blind to religion's flaws to understand that harsh opponents of religion are not motivated by hatred at all, but more likely by such emotions as compassion for the many people whose lives are blighted by religious dogma. Compassion for those who are harmed may well provoke "righteous indignation", or even hostility and anger, but it is not an anger that settles into hatred. No one has to hate Pope Benedict, for example, to be hostile to many of his beliefs and statements.

Plantinga and others who use the language of "hatred" misunderstand the psychological basis for criticism of religion, perhaps because they can't see religion's harms. Perhaps they don't understand what, apart from something like hatred, could motivate strong criticism of something as benign, as they see it, as religion. I'm not going to be so mean spirited as to claim that they are projecting their own nastier emotions onto others, because I don't know that for a fact. But perhaps Professor Plantinga ought to think about it; maybe he should have a good look in the mirror, before he smears the motivations of others.

Whatever their own motivation may be, it's lamentable when Christian apologists such as Plantinga stoop to claiming that opponents must be motivated by hatred in their hearts.

Saturday, May 30, 2009

This is why we call it the Cult of Misery

The Ryan Report, which examined the psychological and physical abuse of young children within Irish industrial schools over a period of decades, found evidence of horrible suffering inflicted by cold-hearted priests, brothers, and nuns. Many children suffered severe sexual abuse, including rape. Countless numbers endured relentless hardship, terror, and emotional deprivation - and this went on day after day for years. This is (yet another) disgusting episode in the history of the Catholic Church, demonstrating yet again how little effect its teachings have in producing compassion for real, suffering people.

In this case, it was young children who were able to feel enduring pain and misery, leading very often to life-long mental scars. This is just the kind of monstrous thing for which we justifiably reach for the extreme word "evil".

But they never learn. Now we have the news story of a senior Vatican official, Cardinal Antonio Canizares, claiming that all this inhuman treatment of real children is nothing compared to abortions. He is quoted as saying "What happened in some schools cannot be compared with the millions of lives that have been destroyed by abortion. It (abortion) has legally destroyed 40 million human lives."

Yes, this is why we call it the Cult of Misery. They just don't get it at the highest levels of the Church. They seriously believe that it is worse to destroy a fetus in a quick operation - either at a sufficiently early stage of pregnancy that there is no pain involved for the fetus, or in any event long before there can be misery, terror, or the slightest understanding of what is happening, or any feelings of confusion if it comes to that - than to inflicting terrible physical and mental harm upon real children ... on young, confused, defenceless people who are nonetheless old enough to suffer exquisitely, day after day, for years that must feel, at that age, as if they will never end.

No words of condemnation are strong enough for this, but Cardinal Canizares evidently doesn't see it that way. This is a kind of moral stupidity or sickness. The Church's so-called morality is not about avoiding and relieving suffering; it is about absurd moral rules that are applied without regard for their consequences for human happiness. The Catholic Church holds itself out as having moral authority, as being able to give us moral leadership, as being a respectable source of guidance to individuals and even governments. It is nothing like that. It's the opposite of all that. Yes, it has some good people amongst its membership. But as an institution, it is morally contemptible. The sooner it is totally marginalised in all societies, the better.

Friday, May 29, 2009

No more teaching!

Yesterday, I wrapped up my teaching for the semester with three tutorials in INT2/3920: Ethics of Global Conflict. I still have some marking to finish, as there are some late essays, and I'll be probably be involved in invigilating a test next week. But that's all my classes for this semester - and for the indefinite future. I've asked not to be allocated any classes in second semester, as I'll be travelling for much of it ... and who knows after that?

Casual teaching ends up being something of a time-sink. You can find yourself doing many hours of unpaid work (being paid a relatively nominal amount of associated time for each hour of face-face-face teaching). Still, I'll miss it, and I'll especially miss my students.

One of the annoying things about much popular discussion in the news media is the way entire age cohorts get stereotyped: whether it's selfish Baby Boomers, whining Gen Xers, or scatterbrained Generation Y. Then there's the silly attempts to beat up stories about some kind of generational war, despite the fact that the huge sort of gap in values between generations that existed 30 or 40 years ago is pretty much a thing of the past (indeed, even the older generations - i.e. the generations even older than boomers like me - have mellowed over time, in my experience). Contrary to stereotypes, my impression of my Gen Y students has been almost entirely positive. It's been a pleasure to deal with the 400, or 500, or more bright young adults who've crossed my path in my various lectures and tutorials in the 10 or so philosophy, bioethics, and international studies subjects that I've been involved in teaching since 2004, while based at the School of Philosophy and Bioethics, at Monash. They've been almost invariably courteous and thoughtful, and considerably more mature than I remember being when I was 18 or 20. I can't possibly remember them all as individuals, but I'll welcome contact with them when we cross paths from time to time in the future.

Sure, there have been various moments that I could have done without, but that's the case with any kind of work. Overall, it's been great, and it looks from here as if the world will be in pretty good hands when Gen Y gets some real power.

Thursday, May 28, 2009

Varieties of accommodationism

This post is a bit of a place marker, but I'm trying to get clear the varieties of accommodationism in the religion/science debate. I don't have an exhaustive typology, but there seem to be a few ways that people try to make a truce between religion and science.

1. The NOMA theory - science is authoritative about empirical issues, while religion is authoritative about issues of morality, "meaning", "purpose" and so on.

2. Natural and supernatural - science examines the "natural" world, while religion reports on a supposed "supernatural" realm involving gods, spooks, and so on.

3. God at work in the gaps - there is room for God to work in nature in ways that we can't detect. Science is authoritative about the natural world, but not in a way that excludes the providence of God.

Are there others? Although these are probably related in various ways, they don't seem to me to be all the same thing, and they address slightly different issues. What they have in common, though, is the idea that science gives us findings about which we can feel justified confidence, including findings about the evolution of life over many millions of years, but there is still an important place for religion. More specifically, these are views that someone might adopt if wanting to defend scientific findings that offend some religionists, while not wanting to offend religionists in general or to deny that religion has a valuable social role.

If, like me, you seriously question the value of religion's social role, you're going to be less impressed by great effort in such a direction.

Edit (since Brian's comment): I've been thinking a bit more about this. It does look as if most positions that could be called "accommodationist" fall into one of these three categories. E.g. Gould's NOMA was essentially 1., and something like this is presented very sympathetically by the NCSE on its website. By contrast, the NAS seems to promote 2., while Francis Collins and BioLogos promote 3.

Of these, 3. is the one that is most likely to be damaging to science. Because it wants to locate a space for certain kinds of divine activities to be carried on in certain kinds of gaps, it could have some tendency to discourage research that aims to plug those gaps. Accordingly, it's at least worthwhile drawing attention to the highly speculative nature of specific hypotheses about how God acts in the gaps (such as by using some sort of interference in quantum-level events in order to guide the process of evolution). Even if we can't disprove such claims, we can emphasise that they are contrivances with no scientific backing. They are transparent attempts to preserve pet religious dogmas, and should in no sense be viewed as science. Their only basis is reasoning that: "Something like X or Y must be true or else religious doctrine R will be falsified. But I can't admit that R is falsified, so something like X or Y must be true."

But, while I can see why hard-pressed scientists get annoyed by this sort of thing, I actually have more sympathy for theists such as Francis Collins than I do for non-believers (atheists, agnostics, sceptics, whatever) who adopt a position such as 1. or 2. in order to grant authority to a religion whose doctrines they don't actually believe. This is appeasement - it's ceding important territory to religion without a fight. Religion does not deserve any grant of authority in the moral sphere - it has no such authority, and that should be the end of it. Nor does it have any plausible claim to reveal supernatural truths about such entities as gods and spooks. But it's as if some non-believers are prepared to give religion whatever authority it wants as long as they are allowed to teach evolution.

But that's not the whole game or even the main game. Religion tells us what we can and can't do with our lives, despite the lack of any credible authority to do so. This is precisely where we should be subjecting its claims to harsh, sceptical scrutiny. Just what credentials do religious leaders have that authorise them to lay down the moral law, or attempt to impose their version of it by the exercise of political power? Absolutely none. It's not good enough to tell religious leaders that we'll accept their claims as moral leaders or experts - or as experts on a spooky realm that mysteriously affects our lives - as long as they'll get off our backs and let us teach science. That's surrender. Conditional surrender, perhaps, but still surrender.

These people are not moral leaders or experts, and there is no such spooky realm. Or, if I'm wrong, let's see what they have to say in their defence. How did they come to have authority on moral issues? Why should we believe that there is any such spooky realm? Let them answer those questions if they can. Until they do, we ought to regard them as essentially charlatans, and we shouldn't be afraid to say so.

Wednesday, May 27, 2009

Melbourne mini-launch for The Priestess and the Slave

This is just to remind those who live in Melbourne of the upcoming Mini-Launch of The Priestess and the Slave this coming Thursday evening, 28 May 2009:

This is part of the 15 Minutes of Fame component of the Emerging Writers' Festival. All welcome!

Venue: Meeting Room 1st Floor, City Library, Flinders Lane (between Elizabeth and Swanston Streets)

Date: Thursday 28 May

Time: 5.30, starting with wine-tasting, then four 15-minute mini-launches from 6pm, including Jenny Blackford, Tiggy Johnson, Hoa Pham for Peril Magazine, and Helen Ross.

Angela Meyer (of the well-known LiteraryMinded blog) will host the launch.

Alas, I won't be able to get to this myself, as I have to work (I have a late afternoon tutorial clashing with this time), but I'm hoping that Jenny gets a good audience.

Tuesday, May 26, 2009

Who needs censorship, anyway?

This editorial in the Las Vegas Review-Journal last August makes the point nicely: The Jewel of Medina was cancelled even though there were no threats at the time, or protests of any sort, "from any actual Muslims." But Random House was afraid "some Muslim, somewhere, might be offended by the book," so they "told Ms. Jones to keep her [advance of] $100,000 - and her manuscript."

The editorial adds a little snidely: "This cowardice, this reluctance to stand up for free-speech rights against even the remote possibility of offending some Muslim with a rusty sword to wave, somewhere, certainly seems more European than American."

But whether it's European or American or the kind of thing they go in for on the smaller moons of Jupiter, it's a form of cowardice that we can well do without. We expect courage from our publishers. Of course, Random House was never under an obligation to accept Sherry Jones's novel in the first instance - that was purely a commercial decision - but things have reached a sad state when a major publishing house backs down because of fear that there will be reprisals when its chosen authors exercise their freedom of speech.

"As Neville Chamberlain proved at Munich," the Las Vegas Review-Journal's editorial concludes, "nothing more emboldens a would-be tyrant than to knuckle under to his whims and demands, rather than standing up and calling his bluff." Well, yes, but in this case there were not even any whims, demands, and bluffs involved. Nothing had happened except that one person who was sent an advance reading copy for a possible endorsement decided to raise an alarm about the possible consequences. That, of course, was not her role. Her role was to give an endorsement if she liked what she saw, or else to pass up the invitation in a dignified way - not to abuse her position by trying to sink the whole project.

Still, it was not her decision in the end, but that of the management of Random House, who gave in without so much as a single threat from a riled Islamist.

If you censor yourself, then who needs censorship?

Kenan Malik on self-censorship

This essay by Kenan Malik on self-censorship, arising from the ghastly situation with The Jewel of Medina, is well worth reading.

The Jewel of Medina, by American author Sherry Jones, is, as Malik puts it, "a romantic tale about Aisha, the Prophet Muhammad's youngest wife." It was originally bought by a major trade publisher in the US, Random House, which subsequently pulled out for fear of violent reactions from Muslim radicals. This was after the publisher received advice - from an academic, Denise Spellberg, who was asked to provide an endorsement - that it was offensive to Muslims. (Note to self: be very careful who you ask for endorsements.) Subsequently, The Jewel of Medina sold to a smaller publisher in the UK, Gibson Square. Alarmingly, Gibson Square's offices were firebombed as it was about to issue the book in late 2008. Nonetheless, the book is available and apparently doing well.

Ironically, it may not have been such a magnet for violence if it had been published routinely by Random House with no fuss. As a further irony, although the book is apparently something of a bodice-ripper - romantic and ahistorical - all reports suggest that it is not hostile to Aisha, Muhammad, or Islam.

While we rightly fear infringement of our freedom of speech by the might of the state, there are other ways that our thoughts and free expression can be silenced, such as by intimidation, cowardice, toleration of the intolerant, extreme unwillingness to give offence, and a lukewarm social ethos in which free speech is given low priority.

Monday, May 25, 2009

Currently reading: The New Puritans

I'm currently reading Muriel Porter, The New Puritans: The Rise of Fundamentalism in the Anglican Church (Carlton: Melbourne University Press, 2006). This is an account of the conservative social and theological directions taken by the Sydney diocese of the Anglican church, especially since Peter Jensen took over as Archbishop of Sydney in 2001, with his younger brother, Phillip Jensen, becoming the Dean of St Andrews Cathedral in 2002.

The Jensen brothers have taken the already-conservative Sydney diocese in an increasingly evangelical direction, marked from the beginning of Peter Jensen's tenure as archbishop, when he announced in 2001 that the church would carry out a grand project, "the Mission", to get 10 per cent of Sydney's notoriously ungodly population worshipping in "bible-believing" churches within a decade (page 9). Porter sees the dominant theology of the Sydney diocese as a form of Christian fundamentalism, with its emphasis on biblical authority, doctrinal rationalism and purity, charismatic and authoritarian leadership, strict behavioural requirements, tendency to separatism, and commitment to male "headship" (pp. 23-32).

I must say that I'm actually bemused by some of this. To be fair to the Jensen brothers and their supporters, it's not obvious to me that any of Porter's claims add up to evidence of American-style Christian fundamentalism, with its anti-intellectual, literal-minded readings of scripture (imagined to be the inerrant word of God). When words such as "fundamentalism" are thrown around too loosely, they miss the point of what is specifically wrong about fundamentalism in the first place, as opposed to what tends to be wrong with all traditional forms of Christianity (for surely such things as male headship, behavioural requirements, and authoritarian leadership have been typical of Christianity for many, many centuries). The peculiar vice of fundamentalism is its resolute refusal to reinterpret its holy texts to accommodate facts about the world. It clings where it can to the literal words, even attempting to undermine well-established science where science and scripture clash.

It seems to me that the Jensen brothers are not fundamentalists at all, but they are certainly not liberal, or even moderate, religionists. By modern standards, they are hardline, conservative evangelicals who cling to the authority of the Bible, interpreted without the absurdities of true fundamentalists who take the Genesis myth literally, but still with a strong emphasis on specific chapters and verses of the supposed word of God, read at face value wherever this can be done. In particular, they emphasise salvation solely through faith in Christ's sacrificial atonement - but that's not so strange. It's pretty much standard evangelical doctrine, rather than something preached only by crazy fundamentalists.

While Porter sometimes appears to be reacting against evangelical Protestantism itself, rather than against anything especially extreme in the Jensens' version of it, Peter and Phillip Jensen are clearly taking the Diocese of Sydney down a doctrinally conservative and socially reactionary path. This is evidently achieving success in building church attendances, but it also demonstrates that even an apparently moderate religious institution, such as the Anglican Church, cannot be trusted to take modern, liberal stances on such issues as sexuality; the role of women in the family (and society as a whole); and the diversity of acceptable ways of life and views of the good. You might expect that, in a relatively laid-back society such as Australia, religion would be a low-key, harmless thing, thoroughly tamed by the Enlightenment, but that's not necessarily the case. Even here, it is always potentially dangerous.

As I say often, I don't consider genuinely moderate (or liberal) Christians and other religionists to be my enemies. Some may have only a miminal commitment to the existence of a deity, and may be able to interpret their traditions in ways that comport well with secularism. They may be tolerant, and politically progressive. Some of these people may be natural allies - on a wide range of issues - for scientific rationalists, and it would be churlish to spurn their friendship or refuse to work with them on issues of common concern.

However, when it comes to religion, it's never a good idea to grow complacent ... there is just too much in the core traditions of Christianity (and most other religions) that readily lends itself to socially reactionary interpretations.

Evolving Thoughts

John Wilkins' science-related blog, Evolving Thoughts, has migrated over to here. John is always good value, so pop over and have a look.

Sunday, May 24, 2009

Coming soon ...

I'm now working on page proofs for 50 Voices of Disbelief: Why We Are Atheists .

Coming soon to a fine bookstore near you ... but there's still a fair bit of work at our end to get it into final shape. It's nice to see page proofs, though. Udo Schuklenk and I are going to be kept pretty busy double and triple checking them for the next few days - squeezing it into the rest of our lives.

Saturday, May 23, 2009

Robot warriors to get a guide to ethics

Thanks to Mike Treder for blogging about this over at the IEET Ethical Technology blog.

According to this MSNBC story:

Ronald Arkin, a professor of computer science at Georgia Tech, is in the first stages of developing an "ethical governor," a package of software and hardware that tells robots when and what to fire. His book on the subject, "Governing Lethal Behavior in Autonomous Robots," comes out this month.

He argues not only can robots be programmed to behave more ethically on the battlefield, they may actually be able to respond better than human soldiers.

It will be interesting to see what Arkin says in his book. Is anyone sufficiently interested in this subject to get hold of a copy and review it for JET?

Western forces engaged in operations in the Middle East already use robots of various kinds, but always with a human in the decision-making loop. The question that confronts us in the future is what happens when we develop robots that are capable of making their own decisions - and, indeed, whether we should be doing this at all:

No matter where the robots are deployed however, there is always a human involved in the decision-making, directing where a robot should fly and what munitions the robot should use if it encounters resistance.

Humans aren't expected to be removed any time soon. Arkin's ethical governor is designed for a more traditional war where civilians have evacuated the war zone and anyone pointing a weapon at U.S. troops can be considered a target.

Arkin's challenge is to translate the 150-plus years of codified, written military law into terms that robots can understand and interpret themselves. In many ways, creating an independent war robot is easier than many other types of artificial intelligence because the laws of war have existed for over 150 years and are clearly stated in numerous treaties.

I notice that this involves a relatively low level of sophistication, since Arkin is thinking of situations where there are no civilians in the area to complicate things. Even if his software is effective, it's a long way from software that will enable an "autonomous" fighter bot to discriminate between combatants and non-combatants in the sorts of unconventional wars that are likely to be typical in the twenty-first century.

Friday, May 22, 2009

Killer robots in war: What do you think?

This thought experiment is not as far-fetched as it may seem at first glance. Many experts believe that we will be able, not too many decades down the track, to build a device with the capacities that I'll be describing. My Generation Y philosophy/international studies students may still be young enough to be involved in real-world decisions when this sort of technology is available. Even I may still be alive, to vote on it, if it's an election issue in 30 or 40 years time. Though it may be at an early stage, the necessary research is going on, even now, in such places as the US military's Defense Advanced Research Projects Agency (DARPA).

Imagine that the T-1001 is a robotic fighting device with no need for a human being in the decision-making loop. Note that it does not possess any sentience, in the sense of consciousness or ability to suffer. It cannot reflect on or change the fundamental values that have been programmed into it. However, it is programmed to make independent decisions in the field; in that sense, it can operate autonomously, though it would not qualify as an entity with full moral autonomy in a sense that Kant, for example, might recognise. It has some limited ability to learn from experience and upgrade its programming.

The T-1001 is programmed to act within the traditional jus in bello rules of just war theory and/or similar rules existing in international law and military procedures manuals. Those rules include discriminating between combatants and non-combatants. I.e., civilians, and other non-combatants such as prisoners of war, have an immunity from attack; however, there is some allowance for "collateral damage", relying on modern versions of the (admittedly dubious) doctrine of double effect. The T-1001 is not equipped with weapons that are considered evil in themselves (because they are indiscriminate or cruel). Its programming requires it to avoid all harms that are disproportionate to the reasonably expected military gains.

To accomplish all this, the T-1001's designers have given it sophisticated pattern-recognition software and an expert program that makes decisions about whether or not to attack. It can distinguish effectively between combatants and non-combatants in an extensive range of seemingly ambiguous situations. It can weigh up military objectives against probable consequences, and is programmed to make decisions within the constraints of jus in bello (or similar requirements). As mentioned above, it does not use weapons that are evil in themselves, and does not attack non-combatants except strictly in accordance with an elaborate version of the doctrine of double effect that is meant to take account of concerns about collateral loss of life. It also uses a general rule of proportionality. Indeed, the T-1001's calculations, when it judges proportionality issues, consistently lead to more conservative decisions than those made by soldiers. I.e., its decisions are more conservative in the sense that it kills fewer civilians, causes less overall death and destruction, and produces less suffering than would be caused by human soldiers making the same sorts of decisions in comparable circumstances.

At the same time, it is an extremely effective combatant - faster, more accurate, and more robust than any human being. With declining birthrates in Western countries, and a shortage of young enlistees, it is a very welcome addition to the military capacity of countries such as the US, UK, Australia, etc.

In short, the T-1001 is more effective than human soldiers when it comes to traditional combat responsibilities. It does more damage to legitimate military targets, but causes less innocent suffering/loss of life. Because of its superior pattern-recognition abilities, its immunity to psychological stress, and its perfect "understanding" of the terms of engagement required of it, the T-1001 is better than human in its conformity to the rules of war.

One day, however, despite all the precautions I've described, something goes wrong and a T-1001 massacres 100 innocent civilians in an isolated village within a Middle Eastern war zone. Who (or what) is responsible for the deaths? Do you need more information to decide?

Given the circumstances, was it morally acceptable to deploy the T-1001? Is it acceptable for organisations such as DARPA to develop such a device?

I discussed a version of this scenario with my students this week. It seemed that, with some misgivings, the majority favoured deploying the T-1001, but perhaps only if a human was in the decision-making loop at least for the purpose of shutting it down if, despite all, it started to make an obvious error that would be a war crime if done by a human soldier. Presumably this would mean an automatic shut-down if it lost contact with the human being in the loop, such as by destruction of its cameras or its signal to base.

Although the scenario postulates that the T-1001 is actually less likely to commit war crimes (or the equivalent) than a human soldier, we can't guarantee that it will never confront a situation that confuses it. It wouldn't be nice if something like this started to run amok. Still, soldiers or groups of soldiers can also go crazy; in fact they are more likely to. Remember My Lai. But does a moral problem arise over the fact that, unless there's somehow a human being in the loop, any unjustified civilian deaths that it causes are unlike other deaths in war? It seems to hard to call them "accidental", but nor can they easily be sheeted home as any individual's responsibility. Is it implicit in our whole concept of jus in bello that that kind of situation must not be allowed to eventuate?

What would you do if offered the chance to deploy this military gadget on the battlefield? Assume that you are fighting a just war.

Thursday, May 21, 2009

BCA v. Singh: Worrying libel ruling in British case

In the defamation case brought by the British Chiropractic Association (BCA) against science writer Simon Singh, the supposedly defamatory words are contained in this passage:

"The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."

The passage goes on:

"I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world’s first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions"

On 7 May 2009, the English High Court made a ruling that this was not comment but a factual claim, and that the phrase "happily promotes bogus treatments" imputed deliberate, conscious dishonesty to the BCA.

One might have thought that the relevant paragraph would be looked upon as a fair comment on a matter of public interest and that the case would ultimately be dismissed unceremoniously. Whether or not the treatments are "bogus" is surely a controversial matter, but one for which there is considerable scientific support. At the very least, it is a matter on which a writer should be able to express an honest and reasonable opinion. The context shows that Singh elaborated the meaning of "bogus" to be something like "ineffective" or "unevidenced by scientific investigation". Well, that's probably true, and it's certainly a matter on which opinions should be expressed publicly.

Does the BCA promote these treatments "happily"? Well, assuming that they do promote them (which is not, as far as I know, denied by anyone), is there any evidence that they promote them reluctantly or with misgivings? If anything is being asserted as a fact here, it is that the BCA freely and without reluctance promotes treatments that are, in the honest and reasonable opinion of the journalist, ineffective for the purpose and/or lacking scientific support. The BCA shouldn't even have a case.

Instead, Singh is screwed. It is doubtful that even he believes that the BCA is engaging in conscious, deliberate dishonesty. More likely, he believes that its officers and membership are self-deceived, and that they are, accordingly, engaging without reluctance in the dangerous practice of promoting ineffective treatments to the public. However, it's unlikely that he would win an appeal on a point such as this. Nor would he have much chance of defending the truth of the meaning that has been imputed to his words.

Here is a good example of defamation law being used to suppress valuable speech. Although it's a British case, and the courts in the UK are notorious for favouring plaintiffs in defamation cases, a similar ruling is possible in other jurisidictions (except, no doubt, in the US, where freedom of speech is taken seriously). Of course, Singh could have worded every phrase with utmost care so that no possible defamatory interpretation could be placed on it. That would produce very leaden prose.

When defamation law functions in this way, it chills speech that is in the public interest. This case shows why defamation law must be kept under control. It should be reserved for clear cases of damage to the reputation of an individual that could lead to that individual being widely pilloried and shunned. It should not relate to legitimate expression of opinion, but to unambiguous allegations of fact that, if widely disseminated, would destroy someone as a social being. "Russell Blackford is a [insert appropriate horrific allegation that would destroy my reputation, such as one of pedophilia, or of criminal convictions for dishonesty or violence, or whatever]" should be considered defamatory, and I should be able to sue anyone who makes such a claim. "Such and such an organisation of alternative therapists is happily promoting bogus therapies," should not be.

Defamation law should be looked upon as a narrow, but still potentially dangerous, exception to the rule of free speech. It is a necessary evil that should be confined as closely as possible without destroying its efficacy in the limited class of circumstances where we really do need it. If it can produce a result like this, in the UK or elsewhere, it needs thorough revision.

Wednesday, May 20, 2009

Massimo Pigliucci batters Stanley Fish

These three detailed posts over the past couple of years, all by Massimo Pigliucci, are well worth reading.

Elsewhere, Pigliucci has been critical of the "New Atheist" arguments of Richard Dawkins, Christopher Hitchens, and Sam Harris. In these posts, however, he is as sharply critical of Fish and the latter's slippery defence of religion - based on a form of epistemic relativism or epistemological scepticism - as you could ask for from any of the "New Atheists".

Tuesday, May 19, 2009

Some more Fish to fry

For those who haven't caught up, Stanley Fish has some more of his friendly God-talk, over on his New York Times blog.

Brian Leiter has a scathing response, followed up by an interesting discussion thread.

The gist of Fish's argument is that all knowledge claims must start somewhere, e.g. with assumptions about what counts as evidence, what counts as logically cogent argument, and so on. Hence, there is a sense in which all claims to knowledge are ultimately grounded in something that we might as well call "faith". Therefore, scientific claims such as the claim that the Earth revolves around the Sun are ultimately no better grounded than, say, typical evangelical Christian claims, such as the claim that, by his death on the cross and subsequent resurrection, Jesus of Nazareth atoned for our sins and broke the hold of sin and death over us. Both categories of claim rely on faith sooner or later, or so Fish wants us to think. Neither is epistemically superior to the other.

It is, of course, true that the grounding of any knowledge claim will eventually run out. If somebody does not accept our basic assumptions about what forms of argument are cogent and what counts as evidence, we can not convince her of anything that she does not want to be convinced of. For that reason, it's true to say that there is no argument about anything that is effective in persuading all comers, no matter how fanatical or even insane.

You can, of course, demonstrate the havoc that ensues if you violate ordinary logic by embracing a contradiction, such as "P & ~P". But even the demonstration will require reliance on some basic logical rules. Someone who is prepared to embrace a contradiction probably won't mind denying these, and in any event may not care if they are committed to accepting any proposition at all.

It's easy enough to demonstrate this, by the way. Assume any proposition you like, "Q", which might, for example, mean "Stanley Fish is the Great Beast of Revelation". Let's assume "P & ~P" and try to derive this directly by using some logical moves that are pretty standard.

1. P & ~P (assumed)
2. P (from 1. by & Elimination)
3. P v Q (from 2. by v Introduction)
4. ~P (from 1. by & Elimination)
5. Q (from 3. and 4. by Disjunctive Syllogism)

If your pet logical system doesn't have Disjunctive Syllogism as a fundamental rule, this might take a bit longer, but no plausible system of first-order logic fails to provide for Disjunctive Syllogism somehow. So you get the idea. I've just demonstrated that if any contradiction is true then Stanley Fish is the Great Beast of Revelation.

As I said, that might not worry someone who is not worried about accepting a contradiction in the first place. Still ...such a person must also either abandon some very basic rules of reasoning and accept that (as well as being the Great Beast of Revelation) Stanley Fish is the very same Great Fish that swallowed Jonah, not to mention that fact that he is one of the evil spirits cast into the Gadarene swine. And he's also the bottle of cough mixture that I've just been sipping from to try to loosen up some congestion in my lungs.

Likewise, chaos arises if I reason poorly about empirical matters. Suppose I often find that I bump into walls when I attempt to walk through them. In fact, it turns out that every time I've tried to walk through a wall (let's say I've attempted this 473 times), I've failed, and instead bumped into it. I now reason along the following lines: "I've failed 473 times in a row in my attempts to walk through walls. That's suggests I'm now long overdue for success; it's evidence that I'll succeed on my next attempt. I'll now walk through the wall that's directly ahead of me." Don't try that at home, folks.

Of course, someone who reasons like that can hang on stubbornly to their approach, with each failure providing stronger evidence that the next attempt will succeed. If someone is sufficiently stubborn, she will always be convinced that the evidence favours success on the next attempt.

But, while our various chains of inference cannot be justified all the way down to all comers, it does not follow that none are better than others. Chains of inference don't need to be justified all the way down. In fact, the very idea is incoherent. But some can be justified down into claims that no sane person would deny.

In fact, that's more typical than not of honest truth claims made in daily life. Scientific claims often move beyond what we can observe directly and involve things that are very small, or very far away, or no longer exist (but have left traces). In some cases, however, they are supported by consilient chains of inference that are strong at each step and that ultimately rely on claims that no sane person denies. Accordingly, science is often able to make real progress. Scientific investigations can converge on very robust propositions that are acceded to by properly trained people from many different personal and cultural backgrounds. Science's methods are continuous with the ordinary methods of reasoning that we use in day to day life, but made more rigorous in various well-known ways, to make up for the ubiquity of circumstantial evidence and heavily theory-laden reasoning.

Religion is simply not in this position. When we say that it relies on faith, we don't just mean that it eventually depends on assumptions about what counts as evidence and what counts as cogent reasoning - assumptions that can't be proved without relying upon them, because they count as our standards for what can be proved or evidenced. One problem is that religious statements are often in contradiction to statements that can be justified as far as it reasonable to try to justify anything. For example, the claim by Christian fundamentalists that the Earth is 6,000 to 10,000 years old contradicts the well-evidenced scientific finding that the Earth is well over 4 billion years old. It's true that the latter can't be justified all the way down - not in the incoherent sense that the most basic assumptions about evidence and logic on which the claim rests can themselves be justified in a non-circular way. But, in any coherent sense that you wish to specify, the claim is justified and the Christian fundamentalist claim is unjustified.

Similarly, the claim that the Nazis killed 5 to 6 million Jews during the Holocaust perpetrated in the World War Two years is justified in any coherent sense that you wish to specify. Claims to the contrary by Holocaust deniers are not justified. They are false.

In other cases, religious claims may not formally contradict other claims that are well-justified by evidence and cogent reasoning; it is just that they are not justified by our normal standards of what counts as justification. There is no good reason why someone who does not already believe these claims should do so. They are believed on the basis of socialisation or emotional experience, or wishful thinking, or some such thing, but not on the basis of evidence. A person who does believe these claims can be given good reason to doubt them, but she can continue to believe by relying on an inner feeling of calm or something similar. It is not just that these claims can't (incoherently) be justified all the way down. They can't even be justified as far down as is necessary for them to be well-evidenced. If our ordinary standards of evidence and reasoning were applied, then they would be assessed as probably false.

These distinctions are not all that difficult to make. It is easy to establish that some claims are better evidenced than others, by ordinary standards that all sane people accept, or by the use of reasoning and investigative techniques that are continuous with those standards. It's true that we can't justify our ultimate standards of justification themselves - to demand that we do so is incoherent. However, it's also true that some claims are well-supported by evidence, as assessed by standards of evidence that it is perfectly rational to acknowledge and that no sane person fails to apply in day to day life. Other claims, notably religious ones, well ... not so much.

Monday, May 18, 2009

Some light relief: Jenny and Russell at the Eurovision party the other night

Hospitality by Sarah Endacott and Jamie Reuel. Photography by Cat Sparks.

Peter Tatchell arrested at gay pride march in Moscow

At the very time that Moscow was the centre of the world's attention, with the silly but amusing Eurovision Song Contest, it managed to tarnish its image by banning a gay pride march, then arresting the 30 or so individuals who decided to demonstrate anyway, at a different location. Among those individuals was prominent Australian/British activist Peter Tatchell, who is perhaps most celebrated for his past attempts to make citizens' arrests of Zimbabwean dictator Robert Mugabe. (As previously announced, he is also a contributor to 50 Voices of Disbelief.)

From all reports, the Moscow police used roughhouse tactics in arresting a group of peaceful, non-resisting demonstrators, while the mayor of the city has denounced the demonstrators as "Satanists" and purveyors of "moral degradation". Prior to the event, he rebuffed all attempts to meet with representatives of the marchers and try to achieve some kind of accommodation with them.

It's nice to know how far Russia has come towards being a liberal democracy since the collapse of the USSR and the system of totalitarian communism. Seriously, what were they thinking? This is making headlines all over the world, making Russia look like it's still a grim dictatorship, run by a political class of hard-nosed thugs with a fine taste for police brutality. The political thugs concerned went of their way to make this ugly incident happen on the very day when Russia was trying to present itself as a modern, sophisticated, fun-loving, place, fully integrated into Europe.

According to this story, Tatchell was subsequently released without charge. It seems, however, from current reports that the local participants in the march are not being treated so lightly.

But perhaps the most shocking thing about this is not the moralistic and authoritarian attitude of the Moscow mayor and police. Let's face it, we already knew that Russia has a long way to go before we can welcome it to the twenty-first century, notwithstanding its (thin) democratic and liberal facade. No, I am even more disgusted by some of the comments we've been treated to by anonymous, apparently British, readers at The Independent's site. The UK is supposed to be a modern, liberal, secular nation, but you wouldn't think it to see the hateful sentences scribed by "borderreiver1", "fastrob", and others. Have a look for yourself. Fortunately, quite a few readers display a different viewpoint, but the bigoted comments from these anonymous cowards can make you despair. Tatchell puts his body on the line for his causes, when that's what it means to stand up to authority in the name of human rights, and he's worth more than the whole damn pack of them.

There's not a lot we can do, perhaps. We don't all have money, resources, or access to the media - or the admirable courage of somebody like Peter Tatchell, who was hurt seriously last time something like this happened in Russia. But we can at least exercise our freedom of speech in small ways. By commenting about this on our blogs, for example.

Do what you can today to support gay rights.

Living in the Past

Speaking of Jenny, as we were doing, check out her new blog, Living in the Past, where she discusses books, cats, etymology, recipes, ancient history ... and generally an eclectic range of subjects where she possesses frightening-but-entertaining erudition.

Sunday, May 17, 2009

Jenny at Emerging Writers Festival

There's a good story in The Age today about the Emerging Writers Festival, which commences this coming Friday.

Jenny will be interviewed at a festival gig on Thursday evening, 28 May, particularly in relation to The Priestess and the Slave.

Saturday, May 16, 2009

The Statute of Liberty - Chapter 8 and Epilogue

Okay, Robertson really gets to the point in Chapter 8 (and the brief, reflective, Epilogue). He lays out his entire proposal for a charter of rights, explaining his rationale at each step.

I must say that his drafting is elegant and as clear as anyone could expect with such a difficult task. It lives up to his reputation as an outstanding legal scholar and practising lawyer. Perhaps some of this material can be used in whatever instrument might ultimately emerge from the current human rights consultation process. This material alone would make the book worthwhile.

But do I agree with it? No. First, he tries to write what amounts to a constitutional preamble, even though there is no intention of including it in the constitution at this stage (but Robertson clearly hopes that the charter he imagines will one day be given constitutional force). His preamble is as well-written as might be expected, but any attempt to lay out values comprehensively in a preamble is doomed to failure for the simple reason that we live in a pluralistic society. Any statement of common values has to be quite minimal or it will exclude some people who don't share some of the values it contains. I think that trying to draft a document like this is a futile exercise, no matter how skilled the author may be.

Second, the content is far broader than that contained in similar charters (those of the UK, Canada, the ACT, and Victoria) and vastly broader than the Bill of Rights in the American Constitution. It gives the impression that Robertson wants to use the document to push his entire political agenda, but that should not be what the exercise is about. To be sure, he does make some attempt to avoid the inclusion of positive rights giving licence to the courts to make funding decisions and to control the detail of government policy on such things as health and education, but he still ends up with something more like a party platform than a charter of rights.

The trouble with positive rights isn't that we shouldn't have them. I do want legislation to provide for a range of rights to health, education, workplace standards, and much else. However, once you start setting out people's legal rights to government resources, including the use of resources to control other people's behaviour (as with anti-discrimination law), you soon find that there are complex questions that can only be resolved by complex drafting. This drafting needs to be open to amendment from time to time, in order to deal with problems or anomalies that arise, to alter standards as needed, and to balance the various interests involved. Getting the detail right is inevitably a matter for day-to-day politics. You can't resolve it all in advance in the concise words of a charter of rights. International conventions can give broad guidance, but fully fleshed-out legislation is then needed to get the details right in domestic law.

Negative rights against the state are different. Of course, some difficulties arise, but nonetheless we can concentrate on codifying the boundaries of the state's power, without getting involved with the complex issues of exactly how the state should use its power, within those boundaries. There is already a vast body of legislation that deals with the positive claims of the citizens of the citizens on the state (e.g. social security law, health law, education law), but what is missing is an adequate statement of what the state can't do. What negative demands do we make against the state to keep out of our lives? What aspects of our lives, here in Australia, are out of bounds to the legislature and the executive?

That is a difficult enough set of questions, but greatly less difficult than the issue of how state resources should be used, which requires many volumes of legislation. Let's concentrate on the real gap, and on what a bill or charter of rights can do fairly easily.

Even here, note that the absolute legal limits to what the state can do will not exhaust all issues of what it should do. It's one thing to expect the state to honour freedom of speech and to write this into a constitutional document. It's another to expect it to honour something like the Millian harm principle. We should not try to write that principle into a constitutional document but we should still invoke it in political debate.

The point here is that a charter of rights does not contain every principle that should restrain government action, but only those limits that are very widely agreed, readily justiciable, and have few plausible exceptions. In fact, there's a danger that the more comprehensive we make a charter (and a possible preamble), the less we will look credible if we rely on principles that are not contained there. If we really must have a preamble, as Robertson claims, we somehow need to refer to the Millian harm principle: the important principle that the government will not criminalise our actions unless they lead to direct, significant, secular, and wrongful forms of harm to others. Note, though, that even this statement of the principle shows how difficult it might be to draft it in a form that could be widely agreed in the Australian community.

In the end, Robertson's book contains much useful material, including some effective refutation of arguments against a charter of rights. However, it tries to do too much. It's as if he, and some other advocates of a charter of rights, can't resist the opportunity to pursue a very broad political agenda through the exercise of designing a charter. That, however, is too divisive and too cumbersome. We'd be better off, and more likely to get something useful out of the reflection currently going on in Australia, if we narrowed our ambition to something narrower and more practical.

I've made suggestions in my submission to the Human Rights Consultation, but there are other models. The possibilities open up if the problem of the unconstitutionality of advisory opinions can be overcome, though Robertson doesn't offer much to deal with this, and it would be risky to go ahead with a model that will be very expensive - only to have it struck down as unconstitutional.

If that problem can be overcome, I could live with the provisions of the ACT charter, which is relatively narrow in what it seeks to achieve, relatively concise, and not hacked around (like the Victorian charter) with too many qualifying words to negate its protections. But over-enthusiastic supporters of a charter may spoil the possibility of an outcome like that if they continue to pursue every issue that's on their minds, rather than concentrating on the realm of practicalities.

Friday, May 15, 2009

Cover for 50 Voices of Disbelief

The Statute of Liberty - Chapters 5, 6, and 7

Chapter 5
This chapter makes out some interesting arguments as to why Australia should adopt a charter of rights, including the claim that we are otherwise cutting ourselves off from international developments in human rights law. Also, it would be useful in various contexts to have a statement of the values that we stand for. One interesting claim is that we would have a definitive set of values, and could refuse to accept immigrants who were not prepared to accept it.

I'm not entirely convinced. Some of the values we stand for, such as what is enshrined in the Millian harm principle, are not the kind of thing that could easily go into a charter of rights. Such a charter would not exhaust the sorts of principles that should guide the development of the law in Australia. Even with the comment about immigrants, I'm not so sure. After all, many of the values that I would like to see widely accepted, and would at least contemplate imposing on immigrants, are not necessarily shared even by the majority of Australians (e.g. values to do with morphological freedom). Is it reasonable to expect immigrants to sign up to values that we don't expect to be accepted by the majority of Australians, let alone all Australians? This is a pluralistic society, after all (though acceptance of that is an important value).

Robertson rightly hammers the importance of freedom of speech and bemoans the opposition to further constitutional protection of free speech from the Australian media, even as they engage in fairly futile lobbying for statutory reform. This is one of the best passages in the book so far.

He defends the incorporation of positive rights, partly on the basis that these would be construed in a fairly narrow way. I.e., the courts would not get into issues of how much money should be spent on particular programs, such as health or education. He cites a couple of South African cases where the courts did not look at such macro issues but (in one case) at a refusal to make a specific HIV drug available and (in the other case) at the effect of government housing policy on the very poorest.

This is the best defence I have seen so far of a (very limited) form of judicial decision-making on matters of government policy, although I am still not convinced. I'd like to know a lot more before being persuaded that there is a way to write in positive rights, such as rights to provision of health care and housing, without empowering the courts to enter into open-ended political investigations, and encouraging them to make judgments about contentious issues of political discretion that normally are left to the electorate to decide when it chooses between rival party platforms. It's one thing for the courts to be required to enforce the boundary lines within which legislatures and executive governments should confine themselves, and to declare when the state has overstepped the mark. It's another for a court to be picking and choosing among the numerous legitimate options that governments always have when they act within their powers. Within appropriate boundaries, governments and alternative governments need the discretion to consider and develop a wide range of approaches to funding priorities and the design of programs.

I'm not totally dogmatic about this problem, and am open to persuasion. But Robertson is going to have to do more (in this book or elsewhere). In particular we need to see exactly how the work of judges in enforcing positive rights - where the duties of governments are vague and largely discretionary - will be confined, principled, and structured. These are duties of imperfect obligation, and it is not the role of the courts to shape how they will be given effect.

Perhaps the later chapters will give us enough of the fine print, but meanwhile I'm sceptical.

Chapter 6
This is an interesting chapter on the British experience with a Bill of Rights, putting some of the criticisms into perspective, and arguing that the experience has been positive. An interesting and persuasive chapter, though many of the issues dealt with under the Bill of Rights in Britain seem to me to be more like issues that should either be picked up in political debate over ordinary legislation or dealt with by enhancement (where needed) of administrative law. Accordingly, I'm still not convinced that any kind of constitutional provision in Australia should go as far as the content of the British legislation.

Robertson also discusses the criticism that declarations of incompatibility would, in Australia, be unconstitutional, as they would be advisory opinions. Robertson rejects this claim, but I find his discussion inconclusive, at best. They still look like advisory opinions to me, if they merely tell the parliament that a provision is inconsistent with the charter of rights - and if this has no legal effect on the substantive rights of the parties (since the charter of rights does not prevail in the event of inconsistency).

I suppose that extra bells and whistles might be introduced to get some sort of legal right that amounts to more than an advisory opinion - but less than striking down the impugned law for constitutional repugnance - but I'm not impressed with any of the proposals I've seen so far. I'll do some more work on this, but at the moment it looks to me like a big problem with any charter of rights that is not constitutionally entrenched and follows the "dialogue" model.

Chapter 7
This chapter responds to some of the critics of a charter of rights. The responses are quite cogent, and the best thing in the chapter is the step by step demolition of Bob Carr's examples of supposedly bad judgments from overseas. Carr seems to have a lot of his facts wrong and/or gives distorted, one-sided accounts.

That's a familiar story to me: supposedly bad judgments that become the subject of horror stories often turn out to make a lot more sense when you go to the judgment itself, rather than rely on a one-sided description of it. That doesn't mean that the judges always get it right, but even cases that seem to be wrongly decided are seldom just crazy.

Sometimes we do see truly activist judges, or groups of judges associated with a particular court (I can think of examples from my past experience of the court system). It's certainly true that lower-level judges and tribunal members can sometimes be overly enthusiastic about giving teeth to whatever legislation they are dealing with, even if, correctly interpreted, the legislation applies to few real-life situations. Such over-enthusiasm can cause problems, and it's wise to take it into account when enacting legislation. However, it tends to get checked higher in the system. When it's claimed that a whole series of crazy judgments have emanated from the heights of a foreign legal system - such as that of the UK or the US - something is usually not right about the claim. Jurists at those heights have biases, and they can go wrong, but they're not fools and they're not reckless.

The Statute of Liberty - Chapters 3 and 4

Chapter 3
Still moving slowly. Robertson gives quite a good short account of Australia's constitutional history, and emphasises how little we have in the way of constitutional rights. There's not much here that was unfamiliar to me, though I suppose it's good to provide a popular audience with this sort of basic information.

He's starting to reiterate the point that he wants a charter of rights to incorporate some deep-seated and distinctive Australian values, thought it's unclear what these are, apart from some kind of celebration of the Aboriginal peoples of the country for "their historic place on our land and in our imagination."

Okay, there's something superficially attractive about the idea of distinctive Australian values, but it also has its dangers: this is a pluralistic society, and we need to be careful before we impose a particular set of values that is not shared by everyone. I'm going to want to know just what these "Australian" values are before I'm happy to incorporate them in a legal instrument that has application to everybody - including people whose values might be somewhat different.

Robertson starts to explain them in the next chapter ...

Chapter 4
This begins with a discussion of the early years of Australia. By this point we are starting to get some oddities. For example, on page 81, Robertson describes Arthur Phillips' insistence on proper provisioning of the First Fleet and equal sharing of rations. In memory of this, and in memory that we helped include economic and social rights in the UDHR, he wants us to opt for a charter "that includes economic and social rights to a basic minimum of food, shelter and medicine."

That seems like a bizarre reason to include such positive rights. Surely, if rights such as these are going to be included in a constitutional instrument it isn't to memorialise certain events that most living Australians would seldom (if ever) think about. It is because we don't trust future governments to provide for even a basic social safety net, because we think that the failure to do is justiciable, and because we believe that this issue needs to be given such high priority as to justify constitutionalisation (in an attempt to tie the hands of future governments and electorates).

I have real reservations about this. All of us who are not extreme libertarians do want some kind of social and economic safety net, which means providing for it by legislation. But the problems of catching everyone, no matter their circumstances, are complex and considerable. At the same time, the detail of just what should be done is a matter of day-to-day political debate. It is not something that readily lends itself to constitutionalisation and oversight by the courts. I'm going to need better arguments as to why the latter is needed in respect of positive rights to the resources that make up a social safety net.

Robertson then asks for a "right to be free of visual desecration" (page 83); this seems to be a positive right against governments that they prevent ugly developments such as the Sydney building known as "the Toaster", Blues Point Tower, and the Cahill Expressway, all of which spoil views of Sydney Harbour. This is really a bit hard to take. I can see a need for planning laws to balance utilitarian considerations against aesthetics, but is this really the sort of thing that we want in a constitutional document?

Robertson then wants "the right to engage in ethical scientific experiment" to be enshrined in a charter of rights (page 83) in memory of Australian medical pioneers, including those who pioneered IVF. Again, that seems like a very odd reason for including some kind of right to pursue scientific inquiry. If this is meant to be simply a negative right against the state - a right not to have certain kinds of scientific inquiry banned - then it might be desirable. But the word "ethical" gives away with one hand the very right that is granted with the other. Of course governments that ban certain kinds of scientific experiments believe that they are banning them because they are "unethical". In a pluralistic society, however, there are many different views as to what is or is not "unethical". Are we really going to hand over to the courts the power to determine whether or not a law banning, say, research on 15-day-old human embryos is unethical by some supposedly "correct" standard? Perhaps we do want to have some sort of constitutional protection for the right to pursue science, but if so it will need to be given meaningful protection. It's no use preventing governments from banning certain kinds of science if all they have to show is that the science concerned was "unethical" by some standard that a court might or might not agree with. Why not a tougher test such as the requirement for the state to demonstrate a compelling state interest?

Robertson then wants a guarantee of trial by jury for any crime with a prison sentence of more than one year. The basis of this seems to be that juries are able to give sympathy verdicts, and this provision would honour the many sympathy verdicts given by British juries that saved convicts from the gallows and got them transported to Australia in the late 18th and early 19th centuries. Again, that seems like an obscure reason to support such a right. If it is really so important to have jury trials for some kinds of crimes, that needs to be established in its own right. Frankly, I'm not convinced; many modern legal systems get by perfectly well without the use of jury trials. Perhaps there's an argument that the criminal courts might one day be so suborned to the will of the executive that trial by jury will be needed as a protection against totalitarian suppression of unpopular individuals and their ideas, but that argument needs to be made out. I'm not necessarily opposed to some effective constitutionalisation of trial by jury for serious crimes, but we need more than what Robertson offers.

Robertson then suggests a right to free association to honour those who fell at the Eureka Stockade (pp. 84-85). Again, this seems strange. The right to freedom of association is one of the most fundamental freedoms, and I support constitutionalising it, but the reference to the Eureka Stockade and other historical struggles does not strengthen the case. The reference to the Tolpuddle Martyrs (p. 85) is more appropriate, since it does involve an historical example of a group who were denied their right to freedom of association. Again, however, we already know that there have been many such cases, and trying to isolate some that were specific to Australia does little to strengthen the argument. The fact is that governments have a propensity to abridge freedom of association, and this can only be restrained by constitutionalisation. The idea is good, but Robertson's actual argument for it is weak.

Then there is the argument for a right to join trade unions and have them bargain collectively (pp. 85-86). Here, Robertson relies on the contributions of Australian trade unions, Australia's work with the ILO, and the unpopular Work Choices legislation. However, this passage is also quite weak. There certainly should be a right to join a trade union, which falls under freedom of association. The right to collective bargaining is another matter. Clearly, history has shown that labour relations legislation of some kind is essential to provide redress for the unequal bargaining power between employers and employees (while also reducing the social disruption caused by industrial disputes). In at least some industries, however, it may be more appropriate to provide for compulsory arbitration (which was a staple of labour relations law in Australia for many years), or for a mix of collective bargaining and compulsory arbitration. Indeed, compulsory arbitration always remains an alternative form of general labour relations regulation - one that the ILO would do well to recognise more clearly. While collective bargaining may be superior, this is a political issue that has been at the very core of party politics in Australia for many decades. It is not the kind of issue that should be constitutionalised.

Work Choices was, of course, unpopular, but that is a good reason not to constitutionalise the mix of labour relations approaches in Australia. History shows that these are exactly the kinds of laws that can be opposed effectively through democratic processes. On two occasions, harsh labour relations legislation has led not only to changes in governments but to prime ministers losing their seats. The kinds of government actions that cannot be opposed successfully through ordinary politics tend to be of a very different character, namely those that infringe fundamental freedoms in ways that are popular, and which strike no chord of sympathy with the mainstream electorate because they affect people who are, for some reason, seen as not mainstream.

Next (pp. 86-870), Robertson refers to Ned Kelly and others, in order to support provisions for fair treatment of prisoners (such as preventing suspect confessions, induced by force, trickery, or other unfair police tactics). While this sort of provision may be needed, no distinctive reference to Australian history is required. There is always a danger of unfair tactics by police, and perhaps some kind of constitutionalisation of a basic set procedural protections is needed here, in addition to protections of relating to fair trials. Again, Robertson doesn't add much to this argument.

Robertson also wants rights to education (he again wants to put his weak "commemoration" or "celebration" type arguments). He proposes: "first everyone's basic right to free and secular education until the age of sixteen; second, a right to be able to access tertiary education on the basis of merit; and third, the right of parents to opt out of state education for their children, and to enrol them in schools that conform to minimum educational standards set by the state (pp. 87-88)." I don't really disagree with any of this, but it is reaching into questions of detail. While I can't imagine that we'd ever go backwards to make education free up to a younger age than sixteen, why specify a particular age in a constitutional document? Perhaps seventeen or eighteen would be a better age. And how, exactly, do we compare merit for the purpose of access to tertiary education? In any event, what evidence is there that these matters, which mainly involve positive rights, are better handled by constitutionalisation than by the cut and thrust of day to day politics? As Robertson's discussion proceeds, he gives as examples of actions that should be open to challenges in the courts the arbitrary refusal of an education department to approve a particular private school or to make adequate provision for students with learning difficulties. But the question of what is "adequate provision" is a political matter rather than something easily justiciable by the courts, which are not expert on determining educational spending priorities. As for the arbitrary refusal to refuse to approve a particular private school, that certainly seems like a decision that should be open to challenge by way of administrative or judicial review, but not necessarily any more appropriate for constitutionalisation than any other such matters.

Finally, Robertson turns to freedom of speech (pp. 88-91). He finds little to celebrate in our history, but nonetheless emphasises (quite rightly) that this is a fundamental liberty that has often been abrogated by governments and needs protection.

And that's just the point: we need to constitutionalise certain specific liberties that are fundamental to our freedom to live as we might reasonably wish in the supposedly liberal society of Australia. The argument is all the stronger where governments have a propensity to circumscribe our fundamental liberties (and meet with little opposition). The arguments about distinctive Australian values and about commemorating/celebrating/honouring individuals or events from our history are pretty much a distraction from what is really at stake.

Thursday, May 14, 2009

I am not fully human ...

Well according to a loony British cardinal.

Those of us who have sneaking transhumanist tendencies might wonder why being human is so great anyway. When nutty religionists come out with pronouncements like this, we might feel the temptation described by PZ Myers:

There is a temptation to agree with them, I'm afraid: the idea that I'm a post-human mutant bestowed with the super-powers of reason and the ability to see through superstition is flattering. But it's not true. Everyone has those powers, it's just that some of us have had the good fortune and a history of experience that allows us to shake off some indoctrination. Nothing more.

Well, yes, I pretty much agree with this. But usually when authoritarian personalities formulate the idea that some fellow Homo sapiens are "not fully human" it implies that they are sub-human - not just in their capacities but in their moral worth. It's a bit frightening when representatives of powerful organisations start to speak like that.

And note that Cardinal Cormac Murphy O'Connor is the same guy who is after a seat in the House of Lords. If I have any UK readers, I hope you're campaigning against this guy obtaining any temporal power.

The Statute of Liberty - Chapter 2

Still proceeding slowly, though Robertson has now given a potted account of the development of rights in the traditions of Britain, Europe generally, the US and Canada, and the UN, with some focus on Australia's proud role in the creation of the original Universal Declaration of Human Rights. He has also, rightly, emphasised the role played by judges in the historical development of rights, and has made the point that a democratic country is not supposed to be a tyranny of the majority over the minority.

We still haven't encountered a lot of compelling argument one way or another, or learned a great deal about what Robertson actually wants for Australia, beyond the obvious fact that he's aiming for some sort of statutory charter with legal force similar to that of the charters introduced in recent years in the ACT and Victoria. I'll read on ...

The Statute of Liberty - Chapter 1

Over the next few days, I'm going to take some time to read - and blog about - the new book from Geoffrey Robertson, The Statute of Liberty: How Australians Can Take Back Their Rights (Sydney: Vintage, 2009). Like Robertson, I support the idea of a bill of rights. Actually, Robertson is only supporting a statutory charter, whereas I support full-blown constitutional entrenchment of fundamental freedoms (such as freedom of speech). On the other hand, he probably supports more content going into his charter of rights than I am happy with. We'll see how this plays out.

So far, I've read Chapter 1, which is a rather chatty introduction that hasn't said anything much at all. I do wish books would cut to the chase, rather than starting slowly with irrelevant personal reminiscences and the like. To Robertson's credit, however, he does have a shot at the simplistic claim that documents such as bills of rights transfer power from politicians to unelected judges. He doesn't say much about why this claim is misleading - nonetheless, so long as the rights concerned merely take the form of limits on government power over the citizens, there is no such "transfer".

Rather, there is an area of freedom created for citizens, where governments (legislatures and executive branches) do not have the legal ability to tell them what to do. Where there is a dispute about whether the government has overstepped the boundary, it is determined by the courts. However, the courts do not possess the power that has been taken from government, such as a power to restrict freedom of speech. All they can do is decide whether or not the government has acted in such a way as to overstep the limits, and even the power to decide that must be exercised in a structured way that severely limits the courts' discretion.

If a bill of rights starts setting out positive rights, things become more complicated. But as long as we are dealing with provisions that protect an area of freedom for the citizens, by imposing limits on government power, there just is no transfer of the power of elected politicians to unelected judges. Rather, it is removed from the politicians, and an area of power over their lives is handed back to the citizens themselves.

This annoying meme - transferring power from elected politicians to unelected judges - has an ability to replicate itself that is greatly disproportionate to the small amount of truth it contains. I wish that people who trot out this idea were taken to task more often.

Then again, Robertson doesn't make the point all that well. He has less analysis of the real issue than I have set out above, and it remains to be seen whether what I've set out applies neatly to his own proposals. We'll find out more as I work my way through the book. Now for Chapter 2 ...

Athena Andreadis on Star Trek

For some good discussion by Athena Andreadis, go here and here. The second link is to a review that gives her first impressions (and has a good discussion thread). The first link is her considered opinion and also links to the other one.

Wednesday, May 13, 2009

So WHAT SHOULD teachers do?

Let's make a positive statement here, building on earlier commments that I've made.

First, evolution is science - important and well-established science that is foundational for biology and all the related disciplines. Children absolutely should be taught the basics of science at school. Hence, I am absolutely saying that evolution SHOULD be taught in state schools. Whether or not there are constitutional issues in the country concerned, as in the US, science should be taught in what I call a religion-blind way. I.e. there is no reason for a teacher in a science class to mention that creationism even exists. Creationism is religion, and does not belong in a science class. Evolution is science, and it definitely DOES belong in a science class.

There are, indeed, genuine scientific controversies within evolutionary biology, such as the precise importance of genetic drift as a mechanism for phenotypical change; the role, if any, of group selection; and the likelihood, or otherwise, that certain human behavioural propensities are genetically coded (in the sense that the same propensities will tend to appear in a very wide range of accessible environments). But there is NO genuine controversy about whether the main propositions of contemporary evolutionary theory are true. Sufficiently advanced students (perhaps in senior high school) should be taught about genuine controversies at the cutting edge of science; they should not be taught about sham controversies that have been concocted for the purpose of undermining mainstream science.

There is no more reason to teach about a fantasised "controversy" between biological evolution and some alternative than there is to teach about an equally fantasised "controversy" between the approximately-spherical Earth theory and the flat Earth theory, or a "controversy" about the oxidation theory of fire and the phlogiston theory of fire (or a theory of fire that involves combat among angry demons, if it comes to that).

Hence, in a biology class, evolution should be taught on its own merits with no reference at all to religious doctrines or religiously-inspired pseudoscience. If these are brought up by students, teachers should explain politely that they are not science and have no scientific support. The same applies to any other body of scientific findings - e.g. in geology, or astronomy - that contradicts various religious beliefs. Just teach the science on its merits.

In a history class or a literature class, or philosophy class, a wide range of religious ideas may need to be discussed because of their historical influence or literary treatment, or because they have been the subject of philosophical reflection and examination.

When they are discussed, there's no reason for teachers to go out of their way to attack religious doctrines, whether it's the Genesis account of creation; or the Catholic doctrine of transubstantiation; or the supposed finality of the Koran; or idea of achieving moksa through meditation and detached conformity with your dharma; or the wisdom of sacrificing cattle to avoid being struck down by Zeus's thunderbolts. Where necessary (perhaps in a history class), discuss these ideas politely as things that some people believe or have believed, but don't give any of them special credence. Phrases such as "superstitious nonsense" should be avoided, but the teacher need not pretend to think that all these doctrines are somehow true.

Religions and religious ideas should be discussed with neither the teacher's endorsement nor the teacher's disparagement - but of course there has to be a margin for pedagogical discretion in such classes, or teaching such subjects will be impossible. E.g., some religions have been harsh in their social effects, and teachers cannot be expected to pretend otherwise when discussing a relevant period in history when this became apparent, or a literary text in which religion's effects are dramatised in some way.

Finally, if I had my way, comparative religion would be a subject in schools for students from a young age. Students should learn accurate information about what religious beliefs have been held by people in the past, and about the variety of beliefs that are held now. They should be taught about all these without any of the beliefs being advocated or denigrated, just to convey the great variety of what has been on offer, and to give students the kind of cultural insight that comes from being knowledgeable about what a wide range of people have believed about the world and humanity's place in it.

A good response on Stranger in a Strange Land

This from Arthur D. Hlavaty's LiveJournal site, "From the Oval Throne of Pope Guilty I".

Russell Blackford on Stranger in a Strange Land by Robert A. Heinlein

This piece on Heinlein's novel is now available over at normblog, the quite extraordinary site maintained by Norman Geras.

I've put a fair bit of work into this, folks, so please consider checking it out. While you're there, browse in the rest of his "Writer's choice" reserve, which is a truly amazing resource with over 200 pieces from a wide range of writers, critics, etc., on books that have influenced them or that they regard as personal favourites.

Tuesday, May 12, 2009

The Capistrano case: When can't we call nonsense "nonsense"?

Over at The Panda's Thumb there's a lively discussion of C. F. v. Capistrano Unified School District going on.

As I discussed a few days ago, the case involved a history teacher in an American public school who made a statement to the effect that Creationism is superstitious nonsense (along with various other seemingly anti-religious comments). He said, referring to a fellow teacher's espousal of Creationism in the school: "I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense." The claim that Creationism is superstitious nonsense was found by the court to contravene the freedom of religion clauses in the First Amendment to the US constitution.

There's been much discussion of the Capistrano case in the blogosphere, and it rightly continues to cause concern. Part of the trouble is that what the teacher said was true. Creationism is, in fact, superstitious nonsense. But that's just the problem - it's not just nonsense but superstitious nonsense, just as the Catholic doctrine of transubstantiation is superstitious nonsense, not to mention the more general Christian doctrine of sacrificial atonement, not to mention almost any distinctively religious doctrine that you care to name. However, while that's my opinion, it's not the sort of issue that we want the state to have an opinion about. On matters of religion, the state should be neutral. At the very least, it should not do anything that can be construed as imposing religious opinions on citizens.

It could be asked whether Creationism is really a religious doctrine, but the answer to that clearly seems to be "Yes" - or if it is not exactly a religious doctrine it is something so close that I don't see how it could make any difference in law: it is, at the least, a piece of pseudoscientific doctrine contrived for the purpose of defending more central religious doctrines. Indeed, it is a sham when more sophisticated forms of Creationism, such as Behe-style Intelligent Design, are passed off as not being religious in character and motivation. Because these ideas are religious doctrines, or something indistinguishable from them for relevant purposes, they cannot be taught in American public schools. But if classic forms of Creationism and contemporary forms of Intelligent Design are so closely connected to religion that they can't be taught in public schools, on pain of breaching the First Amendment, then it follows that they are so closely connected to religion that they also can't be taught to be untrue. On that basis, Capistrano seems to be correctly decided. Indeed, a criticism that might be made of the judge is that he bent over backwards to find that many of the teacher's other comments about religion were not First Amendment breaches.

Rightly or wrongly, American constitutional jurisprudence treats individual teachers in public schools as "the state", which means that they must exercise power over children in their charge as if they were an arm of the executive government. That includes neither imposing religion on students nor impeding a student's free exercise of religion.

However, this can be a fine line, and overly-officious application of the principle could and would chill valuable discussions in the classroom. As I mentioned last time, consider such subjects as English literature, where it may be necessary to explore the worldviews (religious or anti-religious) of authors, and to expect the students to explore their own intellectual and emotional responses. How could you teach the poetry of Shelley, for example, without discussing his anti-religious views? How could you teach that of Gerard Manley Hopkins without trying to enter into his religious mindset? It can't be done. Courts must allow teachers a considerable margin for discretion, or it will stifle teaching and learning.

In my previous discussion of the case, I said that teachers in public schools should just teach the science, or the history, or whatever subject it is that they are paid to teach. If some of the content is inconsistent with a student's religion, then it's up to the student to work out the reconciliation. The First Amendment does not give anyone the right to go through life without being exposed to scientific or other knowledge that might happen to be inconsistent with her particular religious beliefs. How could it? People have all kinds of strange beliefs that are inconsistent with research by scientists, historians, and others. A teacher does nothing wrong if simply teaching secular knowledge in a religion-blind way.

I still think that all this is essentially correct, but it has to be added that we live in a world that is very different from that of the US Founding Fathers or John Locke, a world in which many popular religious doctrines now seem to be plainly crazy when measured against robust findings from science. Even if students are left to connect the dots themselves, some are going to find that mainstream, robust scientific conclusions threaten their religious beliefs. This doesn't apply solely to fundamentalist beliefs, such as the belief that God created the world 6,000 to 10,000 years ago. Even the beliefs of relatively moderate or liberal Christians may be threatened for anyone who thinks deeply about such things as the course of evolution. Thus, even if science were taught in a completely religion-blind manner, with the teacher affecting not to know that there are religious doctrines plainly inconsistent with it (and others whose plausibility may be threatened by it), the religious faith of some students would be challenged. Some might take the scientific findings as fact, be unable to square them with religious teachings, and perhaps either lose their faith altogether or at least abandon certain doctrines that they were taught to them by parents and priests.

My point is not that we should therefore abandon the teaching of good, mainstream science. On the contrary, it is that teaching of good, mainstream science should go ahead, and we should accept that it is an inevitable by-product that the faith of some students will come under challenge in their own minds. But why is that a bad thing? No one has a right to go through life never being exposed to facts that might lead her to reconsider her beliefs on religious, moral, social issues, and so on. Attributing such a "right" to a child is just as nonsensical as attributing it to an adult.

Nor do parents have the right that their children not be exposed to ideas that may challenge the parents' teachings. Children are not playdough for parents; we do entrust parents with the care and nurturing of children, within broad limits, but society as a whole has a stake in children growing to adulthood with a sound knowledge of the world, including a basic understanding of science, and good critical skills. We have legitimate secular reasons to teach these to children, even if doing so runs counter to the wish of parents that their children go through life believing in certain religious doctrines. That wish is not something that parents have a right to bring to fruition by all means possible. If the parents are somehow able to teach their children to reject what they are taught are school, the state should not interfere, but nor must it require that parents have unlimited opportunities to brainwash their children.

All that being so, it seems apparent that teachers may teach science in a religion-blind way, leaving it to students to resolve any contradictions or tensions between the findings of science and the religious doctrines that they are taught outside of school. Schools cannot require sincere belief in, say, evolutionary theory, but they can certainly require accurate understanding of it, and that students bracket off any private reservations for the purpose of class discussion and assessment.

But none of this resolves the fact that teachers cannot be expected to be living, breathing law books, constantly worrying about whether something they might say as individuals will be held to breach the constitution. The problem is not so much for science teachers as for teachers of the humanities, who may need to provoke discussion of such issues as the social role of religion. Here, I worry about the triviality of the remark that Creationism is superstitious nonsense. Are we really going to make a court case of it every time an individual teacher expresses an opinion that contradicts a religious belief of one of her students? Should teachers become, not walking law books, but robots without opinions of their own? That could make teaching impossible.

I continue to think, though with a bit less confidence, that Capistrano was correctly decided on its facts and the existing law. A reading of the entire judgment shows that the judge was very alert to the issues that I've raised in this post, and which many others are raising at the moment. Furthermore, the teacher's remark was pretty much gratuitous in the context in which it was uttered, and was sufficiently emotive that it could have been intimidating, especially against a background where he had made many other remarks that were, at best close to the line.

Although the case was not analysed in this way, we could think about it by going back to the First Amendment itself (or even to Locke), rather than to tests in the governing case law. We could then ask whether the remark, in the context in which it was uttered and the larger context of the teacher's pattern of other remarks about religion, would have foreseeably intimidated an ordinary, reasonable individual of the student's age, bearing in mind the power differential between teacher and student. If the answer is "Yes," we can then ask whether that foreseeable intimidation would have amounted to an impediment to the free exercise of the student's religion. It should be clear as a matter of law that merely teaching good, mainstream science, or other mainstream findings of the discipline concerned, cannot amount to intimidation - though extra hurdles to test the sincerity of belief might, in some cases.

If this test, which looks to the Free Exercise clause rather than the Establishment clause, were adopted, with the elements of foreseeability, intimidation, and the effect of the intimidation on an ordinary, reasonable student in the circumstances, Capistrano might still be sustained on its facts. However, a test like this would make it far less likely that school teachers could be caught out for non-gratuitous, non-intimidating remarks, even if they did express (possibly unguarded) opinions on matters of religion.

At the same time, a test such as I'm proposing would make it virtually impossible for university-level teachers to face court proceedings for clearly legitimate expressions of opinion, one way or the other, on, say, the relative strength of arguments for or against the existence of God. Someone teaching philosophy of religion unavoidably ends up expressing personal views on such subjects; they should, however, make clear that no student will be assessed on the basis of her agreement or disagreement with the teacher on such ultimate questions as the existence of God. Assessment will be based on understanding of the material, ability to argue a cogent case, ability to take account of contrary arguments, and so on. (Come to think of it, there's no reason why school students could not be taught such subjects and assessed in such a way - increasingly so as they mature as young adults in the senior years of high school.)

Whether a test such as the one I'm proposing has any prospect of being accepted by the American courts requires a technical knowledge of the existing First Amendment jurisprudence that is beyond my expertise. I'm not a working First Amendment lawyer based in the US; I'm an Australian philosopher with legal qualifications, some experience in Australian legal practice, and research interests in philosophy of law. There's quite a difference. Doubtless some of my American readers will want to comment on the detail of the case law. Still, a test such as I've proposed above seems to me to reflect good teaching practices ... as well as the philosophical basis for religious toleration and a separation church and state in the first place.

I'd like to see the case appealed, not on the point that Creationism is not (something like) a religious doctrine, but on the point that an ordinary, reasonable student would not have been intimidated to the extent that he was, in substance, having a view about religion imposed on him by the state. Let's see what a higher court makes of that argument. Not all disparagement of religion by teachers would meet the standard that it implies, and teachers adopting good practice could meet such a standard without acting like robots. I may be wrong, but that seems to me what's really at stake here.

It might be valuable if Capistrano were pursued on appeal to higher levels of the court system, even if the judgment at first instance were eventually sustained on its facts (including the gratuitous and emotive nature of the "superstitious nonsense" remark). Assuming the money can be found by an organisation such as the ACLU or the relevant trade union, there might be an opportunity for a more fundamental reconsideration of what can reasonably be expected of individual teachers in public schools to ensure conformity with the constitution. Even if it's confirmed that the case has been decided correctly on its facts, there might be an opportunity here for the courts to develop standards that make more sense of the twenty-first-century reality in which many religious doctrines cannot be reconciled with secular knowledge that we want to teach to our young people.