Sunday, October 25, 2009

Civil Law and Common Law

The difference between a common law and civil law system is not widely known, but this difference matters in how easily the law adapts to different situations.

Written by johnleemk on 5:07:32 pm May 19, 2007.

The difference between a system of civil law and common law is often not appreciated by those outside the legal profession. For the most part, knowing the difference between these legal systems is not relevant to our daily lives.

However, understanding how our laws are developed and enforced always has a relevance to the bigger picture of our society, for if we understand this, we understand how the laws we live by are made.

Part of the problem is that explaining the difference between a civil law system and a system of common law is not exactly easy. I remember a couple of years back when I was asked whether Singapore has a civil law or common law system — I tried to discern the difference from Wikipedia, and came away stumped.

In a sense, the meaning of "common law" should be obvious from phrases such as "common law wife" — this is law which exists by unwritten convention, not written statutes.

Meanwhile, a civil law system develops through an existing legislative process. This is a system followed by most countries around the world, especially in Europe, and so we can see a very neat contrast between the United Kingdom and its European neighbours.

The common law system is predominant throughout the Commonwealth of Nations, thanks to their shared British heritage. Most former British colonies derive their laws from the same common law as England (the common law is actually a thoroughly English creature — the Scots and Irish were not subject to this system).

Now, you might be scratching your head at this point, because virtually all former British colonies, and even Britain herself, have legislative bodies. Don't these legislatures make written laws?

Well, yes, they do. However, the old body of common law continues to coexist with written law (although the written civil law does override the common law when they come in conflict).
Moreover, the body of common law continues to develop. Common law develops from the judgments handed down by the judiciary. The English legal system (and thus the legal systems of most of its former colonies) is marked by a very strict following of judicial precedent.
This principle, known in Latin as stare decisis, means that the courts follow the judgments of courts above them in the hierarchy.

They can deviate from these judgments creatively by distinguishing a particular situation, but otherwise, they have to follow precedent.

This of course confers quite a few benefits. I've touched on one of them before — the flexibility offered by the common law in wedge cases or grey areas. This flexibility is not easy to achieve under a civil law system, as only the legislature can modify the law if the law is unjust.
But at the same time, the common law is markedly inflexible. It is difficult to update common law to change with the times. For example, it was established in the early 19th century by Adams v Lindsell that an offer to make a contract takes effect the moment its acceptance is posted — not received.

This judgment, which was creatively used to correct the uniquely unjust situation of the Adams case, does not make much logic to the ears of the ordinary man — nor should it.
Similarly, another tenet of contract law according to the common law is that there must be consideration provided for any contract — I need to provide something for you to provide something else to me (a typical quid pro quo deal) unless the contract is written.
The problem is that in the case of unwritten contracts which should be enforced, there are times when the courts have had to lay down ridiculous judgments, declaring that, for example, a peppercorn counts as consideration.

With the development of the principle that a binding contract should have the intention to create legal relations in the early 20th century, the idea of consideration no longer has much use — and yet it remains.

Why? Because the courts are notorious for finding it difficult to retreat from the body of legal tradition which already exists. The legislature could act to change the law — as the legislative bodies of some former British colonies have done — but Parliamentarians are not known for caring about these obscure but nevertheless important details.

In a civil system, on the other hand, once a law has proven to be bad, it is amended or repealed. Because only the legislature can provide recourse in such a situation, there is no need to get one's hands dirty and file a lawsuit, hoping that it will reach the highest court of the land, and the judges here will be radical enough to depart from precedent.

Clearly, the common and civil law systems both have their advantages and disadvantages. Having been exposed to the common law system for much of my life, I must say I prefer it to a purely civil law system because of the flexibility that judicial precedent and statutory interpretation can offer judges.

Oh, and as for Singapore? I'm still not sure, but as far as I can ascertain, it operates under a common law system, and until a few decades ago, it was possible to appeal to the English Privy Council in a Singaporean case.

A Visit to First Principles: Including Briefing a Case

Hadley v. Baxendale, Court of Exchequer, 9 Exch. 341, 156 Eng. Rep 145 (1854)

FACTS: Plaintiffs were the owners of a mill whose operation was stopped due to the breakage of a crank shaft. The shaft had to be sent to engineers of the manufacturer [Joyce & Company] as a pattern for a new one. Plaintiffs used Pickford & Company as carriers. The clerk advised them that the shaft must be sent immediately, as the mill was stopped. The clerk was promised delivery in one day and paid 2 pounds 4 shillings for the delivery. However, Pickford failed to perform as promised and delivery was delayed for several days. As a result, plaintiff lost several days’ profits from the mill that otherwise would have been made if the shaft had been delivered on time. Plaintiff sues Defendant for lost profits.

HISTORY: In the trial case, the jury returned a verdict for the Plaintiffs for 25 pounds, plus the amount paid into Court. Defendant appeals and a new trial is ordered. Appellate court reverses.

ISSUE: Can Plaintiffs recover lost profits?


RULE/ANALYSIS: A New Rule was created in this case: The court found that an aggrieved buyer of services will be unable to recover consequential losses resulting from breach unless the losses are 1) a “natural” consequence of breach; or 2) the buyer brings the circumstances which would generate the losses expressly to the seller’s attention. The court reasoned that Pickford had no way of knowing that Plaintiffs would lose profits if the shipment of the shaft was delayed, as this information wasn’t communicated directly to them and therefore the loss of profits was not reasonably contemplated by both the parties when they made the contract. Although the fact that the mill was closed was communicated, it wasn’t made completely clear to the Defendants that the mill was closed because of the broken shaft and couldn’t re-open again until it was fixed. For all the Defendants knew, the mill was closed for another reason.

SUMMARY: Indirect or consequential damages are only recoverable if reasonably foreseeable by both of the parties at the time of the contract and arising naturally from such breach. This legal concept is still alive today – 150 years later. If the Plaintiffs had made it clear that the mill’s operation was dependent upon getting the new crank shaft, the outcome would have been in their favor.

A.M. Klein: Canadian Lawyer; Canadian Poet

A.M. Klein: Portrait of the Poet as Person

By Ezra Glinter

In a 1943 letter to his colleague A.J.M. Smith, Montreal poet A.M. Klein complained of critics’ tendency to identify him primarily as a Jewish poet.

Our Man In Montreal: Klein often complained about critics who identified him primarily as a Jewish poet.
“Why did they… have to go flaunting my circumcision?” he asked. “It’s an adolescent trick — this whimsical opening of another man’s fly.”

Despite his protestations, Klein is still largely remembered as a Jewish poet — and not without justification. As both a person and an artist, he was deeply in love with the heritage he received from his parents and from his teachers, a fact fittingly reflected in his nostalgic recollections of his childhood in the once heavily Jewish Montreal neighborhood surrounding Saint Lawrence Boulevard. His poetry, as he explained in a letter to Yiddish critic Shmuel Niger, dealt with cultural synthesis and the problem of expressing one culture in the language of another. And contrary to his complaints to Smith, he was critical of Jewish artists who disregarded their cultural identity. Klein accused these artists of having “nothing original to contribute.” After all, he reasoned, “one cannot create with another’s genitals.”

But while much of Klein’s writing did, in fact, take Jewish themes as its subject, his quest for general literary acceptance was also fulfilled. As delegates at a recent international conference on Klein indicated, his contributions to Canadian and modernist literature went beyond the Jewish content of his poetry. Held at Montreal’s Concordia University and sponsored by Concordia’s Institute for Canadian Jewish Studies, the conference featured such noted Canadian literary scholars as Klein authority Zailig Pollock, of Trent University, and Brian Trehearne, a McGill University expert of Canadian modernism.

While the discussion of Klein included his early work, such as the collection “Hath Not a Jew,” the most enduring part of Klein’s legacy is undoubtedly his 1948 collection, “The Rocking Chair and Other Poems,” which received Canada’s prestigious Governor General’s Literary Award. The collection dealt not with Jewish subjects but with the province of Quebec and its people. While many of the poems are written in Klein’s frequently complex style, such as the multilingual homage to the city of Montreal, some of the collection’s most powerful pieces are simple and direct, such as Klein’s critical portrayal of Quebec nationalism in “Political Meeting,” or the rural nostalgia of the titular “The Rocking Chair.”

The collection also includes what many consider to be Klein’s finest poem, “Portrait of the Poet as Landscape,” a haunting meditation on the fate of the poetic vocation in the face of modernity. Along with his acclaimed novel “The Second Scroll,” the poem represents the zenith of Klein’s literary career, though its allusions to paranoia and madness also foreshadow its author’s mental collapse in the mid-1950s and Klein’s ensuing retreat into silence and solitude for the final decades of his life.

Though Klein is celebrated today primarily for his foundational role in Canadian letters (The Quebec Writers’ Federation Prize for Poetry is named in his honor), he was a man of many talents, many interests and many occupations. By profession he was a lawyer, having studied law at the Université de Montréal, and for a few years he lived in the small Quebec mining town of Rouyn, where he opened a modest legal practice. For two-and-a-half decades he was also the editor of the Canadian Jewish Chronicle, the English counterpart to the seminal Yiddish newspaper Der Kanader Adler. In his weekly editorials, Klein commented on such topics as antisemitism both at home and abroad, Canada’s involvement in the Second World War and Zionism, of which he was a life-long supporter.

Though Klein’s artistic aspirations remained primarily poetic, the editorial position served as an important creative outlet for him and as a channel for his essays, reviews and translations of Yiddish and Hebrew works. His career also included a three-year stint teaching poetry at McGill University, two unsuccessful forays into federal politics under the banner of the socialist Co-operative Commonwealth Federation (later to develop into the New Democratic Party) and speaking engagements all over North America on behalf of the fledgling State of Israel.

While for the most part, Klein was able to reconcile his multiple activities and obligations, they eventually took a toll on his personal life as well as on his artistic sensibilities. In addition to his literary work, Klein was a longtime speechwriter and public relations consultant for business magnate Samuel Bronfman, head of the Seagram Company, and president of the Canadian Jewish Congress from 1939 to 1962. In a 1942 journal entry, Klein lamented his role writing souvenir programs for philanthropic banquets. “Poor me!” he wrote. “Poet parsleyate to a menu… it is a humiliation only a philanthropic world makes possible.”

Despite his self-disgust, Klein remained an employee and personal friend of Bronfman’s for decades. He continued to send him birthday greetings long after he had ceased to communicate with most others. According to his son Colman, who spoke at the Concordia University international conference, Klein was fascinated by power and by those who wield it.

But despite his affiliation with Bronfman, it was not just commercial or political power that interested Klein. As a socialist candidate he believed in the power of the people, and as a young rabbinical student in the power of God. But it was the power of language that fascinated him most of all, a power to which he gave lasting expression through his true vocation — poetry.

Friday, October 23, 2009

Adam Kirsch Clarifies The Last Man

Life On Venus: Europe’s Last Man

Adam Kirsch

There are not many moments in history when it is possible to worry that the world has become too happy for its own good. One such moment came in Europe during the late nineteenth century, when the Napoleonic Wars had receded into the distance and the First World War was still hidden over the horizon. For a brief period, it became possible to believe that the West was headed for a condition of permanent peace; that technology, democracy, and globalization were driving a virtuous circle that no atavistic violence could disrupt.

This vision never came very close to becoming a reality; the late nineteenth century was, after all, the era of communism and anarchism, imperialism and scientific racism. It is remarkable, then, to consider how many of the greatest writers of the period were exercised by the possibility that reason, progress, and material well-being—in short, the bourgeois order—might destroy the human spirit. The definitive statement of this view was offered by Nietzsche in the prologue to Thus Spoke Zarathustra, where he summons the specter of the Last Man—or, as R. J. Hollingdale renders it in his translation, the Ultimate Man:

The earth has become small, and upon it hops the Ultimate Man, who makes everything small. His race is as inexterminable as the flea; the Ultimate Man lives longest.
“We have discovered happiness,” say the Ultimate Men and blink. . . .
They still work, for work is entertainment. But they take care the entertainment does not exhaust them.
Nobody grows rich or poor any more: both are too much of a burden. Who still wants to rule? Who obey?

Both are too much of a burden.

The twentieth century, of course, did not turn out to be the age of the Last Man after all. The two world wars and the global violence of the Cold War demonstrated to anyone’s satisfaction that irrationality and cruelty, which Nietzsche feared were dwindling resources, still flourished in abundance just underneath the thin crust of modern civilization. But then came 1989 and the end of history—or at least The End of History and the Last Man, as Francis Fukuyama put it in his influential book. It is almost always referred to simply by the first part of its title; to his critics, Fukuyama is the man who declared “the end of history,” triumphally and, needless to say, prematurely.

But the second part of the book’s title is actually more telling, and more representative of Fukuyama’s argument. No sooner had humanity emerged from a century of hot and cold wars than Fukuyama was resurrecting Nietzsche’s admonition that a world of peace and prosperity would be a world of Last Men. “The life of the last men is one of physical security and material plenty, precisely what Western politicians are fond of promising their electorates,” he pointed out. “Should we fear that we will be both happy and satisfied with our situation, no longer human beings but animals of the species homo sapiens?”

While Fukuyama appreciates the seriousness of the Nietzschean warning, he hears it from the perspective of a partisan, not a foe, of liberalism. The danger he foresees is not simply that bourgeois democracy will cause human beings to degenerate, but that degenerate human beings will be unable to preserve democracy. Without the sense of pride and the love of struggle that Fukuyama, following Plato, calls thymos, men—and there is always an implication that thymos is a specifically masculine virtue—cannot establish freedom or protect it:

It is only thymotic man, the man of anger who is jealous of his own dignity and the dignity of his fellow citizens, the man who feels that his worth is constituted by something more than the complex set of desires that make up his physical existence—it is this man alone who is willing to walk in front of a tank or confront a line of soldiers. And it is frequently the case that without such small acts of bravery in response to small acts of injustice, the larger train of events leading to fundamental changes in political and economic structures would never occur.

When Fukuyama published his book in 1992, he was specifically concerned about the loss of thymos among Americans. Today, his predictions about the debility of the post-historical world still pass for common currency among neoconservatives; what has changed, dramatically, is the consensus view about where that post-historical world can be found. The American response to the 9/11 attacks—the war on terror, the wars in Iraq and Afghanistan—have banished any fear that America might grow passive and debellicized. The opposite complaint is much more likely to be heard, especially from European critics of America. And partly for that reason, it is to Europe that Americans now look for examples of the Last Man. The opposition of Europeans to the Iraq War, from a neoconservative perspective, all but epitomizes the inability “to walk in front of a tank or confront a line of soldiers” that Fukuyama warned about.

This was the essence of Robert Kagan’s argument in Of Paradise and Power, published in 2003 on the eve of the Iraq War. Europe, Kagan wrote, “is turning away from power” and “entering a post-historical paradise of peace and relative prosperity,” while the United States “remains mired in history.” He dwelled, in terminology purposefully reminiscent of Nietzsche and Fukuyama, on the psychological frailty, the thymotic decay, of contemporary European society. “The real question,” he writes, “is one of intangibles—of fears, passions, and beliefs.”

Kagan’s much-quoted formula, “Americans are from Mars and Europeans are from Venus,” is a more or less overt accusation of European effeminacy. Or, as James Sheehan puts it, in more value-neutral terms, in Where Have All the Soldiers Gone?: “The eclipse of the willingness and ability to use violence that was once so central to statehood has created a new kind of European state, firmly rooted in new forms of public and private identity and power. As a result, the European Union may become a superstate—a super civilian state—but not a superpower.”...

And Another Medvedian Note

The state has an interest in marriage alright but that interest of itself does not foreclose same sex marriage.

The issue is whether the difference between same sex couples and straight couples affords reasons for disallowing same sex marriage. The reasons, after all, do not speak for themselves.

Further Notes on Medved

Gay Marriage

1. Separate but equal before Brown meant equal at law. Equality before the law and marriage are not concepts carved in stone. What they can include will change with good reasons and broad sentiment. Those changes aren’t politics narrowly conceived. They are the progress of rights and liberties.

2. Matrimony isn’t holy though it can be. Religion offers no cognizable ground for disallowing gay marriage.

3. It’s wrong to say miscegenation was overruled because of legal principles and not because of bad distinctions. Before it was overruled it was the law. What to make of the legal principles then? Distinguishing precedes and informs the legal principles. And they are general enough—equality, due process—to expand with changes based on good arguments.

4. There is no wall between principled arguments and social policy arguments. They feed and structure each other.

5. Procreation does not exhaust the functionality and purposes of marriage. Plus gay parents have means beyond their own procreation of having children. Children with loving gay parents are well off.

Maybe it Was Just a Phase I Went Through, but What the Hell--and not Written by James W. Rose

On Keats’s Urn

Keats spoke of "slow Time",
foster-father of a Grecian Urn,
of frozen sculpted reliefs,
of Dionysian ecstasies,
of inflamed lovers in flight and in pursuit,
of a pastoral piper
playing his pipes under Spring’s foliage,
wind blown silently on wind,
pattern of wood on marble,
and of the quiet celebration of communal pieties—
the urn shaping hot longings
into attitudes of grace,
freezing grace into marble immobility,
for Keats a "Cold Pastoral",
the stasis of boiling blood.

Why "foster-child of Silence and slow Time"?
Is it that in Keats’s art,
cold as marble,
conception is but a longing,
no, rather, the image of a longing,
a song ears never hear,
all still,
all passion arrested,
still and "unravished",
cold marble a bridal bed?
Keats, his mind fevered,
his blood boiling,
his longing deathward,
found comfort in cold form,
balm for riddled life,
in soothing sentences on beauty and on truth,
consoling compress for his hot heart.

"slow Time", we must know, is no answer
as Keats so hotly urged.
With "Panting pursuit",
"parched tongue",
and "men and maidens overwrought",
he gave the lie to his own notions,
like Shakespeare’s Shylock,
cracking the icy marble of Venice’s frozen romance,
with wounds and bleeding
and salt on wound and pain,
exotic force, insisting on his bond,
invoking old bible rectitude,
cracking the icy lies
--("Thou torturest me, Tubal: it was my
turquoise; I had it of Leah when I was a bachelor:
I would not have given it for a wilderness of monkeys.")--
with his raging gracelessness,
more than known on earth
and more than can be known.

Thursday, October 22, 2009

Basman's (an Osgoode Hall--the Best Law School in the Commonwealth--Grad) Short Note on Medved's

This post is legalistic.

The issue is not the difference between discrimination and distinction: every distinction that favours or burdens a group turns on discrimination; all discrimination turns on distinction.

The issue also is not what's legal.

The issue is the principled basis for not allowing gay marriage. As you say, this disallowance is based on gender not race. But the question is not answered by that asssertion. To rest on this assertion merely begs the question, makes your conclusion your premise.

Absent a persuasive answer to the question, anyone is right to say that to disallow an interracial couple from marrying is analogous to forbidding gay couples from marrying. Both discriminations are based on unjustifiable distinctions.

Medved's (A Yale Law School Grad) Short Note on Gay Marriage

Discrimination Versus Distinctions

Posted by: Michael Medved at 1:16 PM

A justice of the peace in Louisiana drew universal condemnation by refusing to marry an interracial couple. Gay activists insist his bigotry is comparable to resistance to same-sex weddings, but this analogy blurs the difference between unconstitutional discrimination and acceptable distinctions.If a white man can marry a white woman, you can’t deny an African American the same right based solely on race; that directly denies the equal protection guaranteed in the 14th Amendment.

But a gay male already has exactly the same rights as a straight male: they can both marry a woman, but neither can marry another man. That distinction isn’t based on sexual orientation, or race—it’s based on gender. And different treatment based on sex is constitutional—as in only men signing up for the draft, or custody- case favoritism for females, or even separate male/female bathrooms.

Lost Moral Compass

Rights Watchdog, Lost in the Mideast


As the founder of Human Rights Watch, its active chairman for 20 years and now founding chairman emeritus, I must do something that I never anticipated: I must publicly join the group’s critics. Human Rights Watch had as its original mission to pry open closed societies, advocate basic freedoms and support dissenters. But recently it has been issuing reports on the Israeli-Arab conflict that are helping those who wish to turn Israel into a pariah state.

At Human Rights Watch, we always recognized that open, democratic societies have faults and commit abuses. But we saw that they have the ability to correct them — through vigorous public debate, an adversarial press and many other mechanisms that encourage reform.

That is why we sought to draw a sharp line between the democratic and nondemocratic worlds, in an effort to create clarity in human rights. We wanted to prevent the Soviet Union and its followers from playing a moral equivalence game with the West and to encourage liberalization by drawing attention to dissidents like Andrei Sakharov, Natan Sharansky and those in the Soviet gulag — and the millions in China’s laogai, or labor camps.

When I stepped aside in 1998, Human Rights Watch was active in 70 countries, most of them closed societies. Now the organization, with increasing frequency, casts aside its important distinction between open and closed societies.

Nowhere is this more evident than in its work in the Middle East. The region is populated by authoritarian regimes with appalling human rights records. Yet in recent years Human Rights Watch has written far more condemnations of Israel for violations of international law than of any other country in the region.

Israel, with a population of 7.4 million, is home to at least 80 human rights organizations, a vibrant free press, a democratically elected government, a judiciary that frequently rules against the government, a politically active academia, multiple political parties and, judging by the amount of news coverage, probably more journalists per capita than any other country in the world — many of whom are there expressly to cover the Israeli-Palestinian conflict.

Meanwhile, the Arab and Iranian regimes rule over some 350 million people, and most remain brutal, closed and autocratic, permitting little or no internal dissent. The plight of their citizens who would most benefit from the kind of attention a large and well-financed international human rights organization can provide is being ignored as Human Rights Watch’s Middle East division prepares report after report on Israel.

Human Rights Watch has lost critical perspective on a conflict in which Israel has been repeatedly attacked by Hamas and Hezbollah, organizations that go after Israeli citizens and use their own people as human shields. These groups are supported by the government of Iran, which has openly declared its intention not just to destroy Israel but to murder Jews everywhere. This incitement to genocide is a violation of the Convention on the Prevention and Punishment of the Crime of Genocide.

Leaders of Human Rights Watch know that Hamas and Hezbollah chose to wage war from densely populated areas, deliberately transforming neighborhoods into battlefields. They know that more and better arms are flowing into both Gaza and Lebanon and are poised to strike again. And they know that this militancy continues to deprive Palestinians of any chance for the peaceful and productive life they deserve. Yet Israel, the repeated victim of aggression, faces the brunt of Human Rights Watch’s criticism.

The organization is expressly concerned mainly with how wars are fought, not with motivations. To be sure, even victims of aggression are bound by the laws of war and must do their utmost to minimize civilian casualties. Nevertheless, there is a difference between wrongs committed in self-defense and those perpetrated intentionally.

But how does Human Rights Watch know that these laws have been violated? In Gaza and elsewhere where there is no access to the battlefield or to the military and political leaders who make strategic decisions, it is extremely difficult to make definitive judgments about war crimes. Reporting often relies on witnesses whose stories cannot be verified and who may testify for political advantage or because they fear retaliation from their own rulers. Significantly, Col. Richard Kemp, the former commander of British forces in Afghanistan and an expert on warfare, has said that the Israel Defense Forces in Gaza “did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.”

Only by returning to its founding mission and the spirit of humility that animated it can Human Rights Watch resurrect itself as a moral force in the Middle East and throughout the world. If it fails to do that, its credibility will be seriously undermined and its important role in the world significantly diminished.

Robert L. Bernstein, the former president and chief executive of Random House, was the chairman of Human Rights Watch from 1978 to 1998.

Thursday, October 15, 2009

Some God Talk for a Change: Part 3


I think Hume’s definition of miracles is right assuming that some other “invisible agent” is something outside the laws of nature. I also think Dawkins is right when he says, as I would put it, miracles inform the basis of religious belief—regardless which end of the miracles- religion telescope we look through—and that a belief in miracles is inconsistent with the principles of science.

I also think that it follows that if there cannot be miracles we cannot in principle have religion and that the existence of miracles is a sure step towards, a necessary condition of, the validity of religion.

A few other short "I thinks":

1. the question of testimony or a credible witness for a miracle is a “second order” problem.

2. the example of human clones as an exception to the “law of nature” that there cannot be a virgin birth, if I am understanding what HM is arguing, is patently misconceived.

3. In fact Hume does say that miracles do not occur but HM has chosen to deal with Hume’s treatment of the problem of testimony. (The presupposition of Hume's analysis of the problem of testimony is the phenomenal impossibility of miracles.)

Continuing more generally, when HM cavils that Dawkins is looking through the wrong end of the miracles-religion telescope he makes no worthy point. For Dawkins’s argument, it doesn’t matter whether people start first with miracles and then get to religion or start first with religion and then get to miracles. The point is the indissolubility of the religion-miracles connection. Religion does not, cannot, exist without miracles. And, therefore, it is incoherent to assert the truth of religion and the principles of science in the same intellectual breath.

Take HM’s example: whether Jesus had a human procreational father. If the answer is specifically no, then that destroys Christianity as a religion. If the answer is no both specifically and because the laws of nature—which include cloning, the science of which I do not understand—negate the possibility of miracles, then what religion can there be? Anything that claims to be a notion of religion, or any claim to be a particular religion, which eschews miracles, or is not dependant on miracles, fails in its claim. It’s something else which is consistent with the order of nature or a non religious understanding of reality.

To say, as does HM:

...Suppose the correct answer is: no, Jesus did not have a human father. This would no more establish the truth of religion than the opposite falsifies it. If Jesus was born of a virgin, it does not follow that a law of nature was violated. To say "if A, then B" is not to say that there will be a B only if there is an A...

is knowingly to be obscure.

HM offers cloning as a counter example to the *natural laws*—children must have human fathers, or cannot be born of virgin mothers— he seeks to invalidate. But the issue isn’t the fixity of the formulation of a natural law. The issue is natural law itself, which accommodates science expanding cloning to the point of human conception. HM’s example does no violence to Hume, nor to Dawkins. But it does HM no intellectual favor.

HM presents another case in trying to erode the wedge between science and the existence of miracles—the Azande enigma of why a man was killed by a falling branch. HM and the Azande are good with the "if A" –say termites—"then B" of the branch falling on the guy, which is really the "if A then B" of the branch falling. But religion goes to the guy being there when "if A then B" caused the branch to fall. Why was that guy at that spot?

HM says, conflating coincidence and causality:

… People might accept a scientific account of why a particular event occurred, yet ask similar sorts of questions about why there are particular juxtapositions of occurrences. Much of this speculation and theorising will be baseless, but there seems no justification for saying all such thinking is nonsensical. By analogy: most conspiracy theories are groundless, but not all of them are…

The thinking, usually baseless, the conspiracy theories, usually groundless, may have an answer. Maybe the Azande wood and termite expert knew the tree was going to shed its branch at time x and told y to be there at time x, or whatever. The point, implicit but unrecognized in HM’s reasoning, is that the answer to the baselessness and the groundlessness, if any, will be provided by natural laws—"if A then B". Otherwise, the Azande, and perhaps HM, can believe whatever they will, but their belief, if based on extra natural occurrences—say, "a violation of the laws of nature...a transgression of a law of nature by a particular volition of the Deity, or by the interposition of some invisible agent"— puts them back swimming in the same irrational, religious soup from which Hume and Dawkins, amongst others, have worked mightily and well to lift us.

In all of his arguments, as I read them, HM is nowhere near to resolving the intellectual contradiction between miracles as a necessary condition of religion for one and scientific principles for two.

Some God Talk for a Change: Part 2

My buddy Jackie R. :

The problem with most arguments contra miracles is that they beg the question of the rationality of reality. Existence itself is irrational. That we exist can't be explained rationally. Yet, our existence is such an empirical certainty, that we can order our lives based on this assumption. Apparently one of the attributes of miracles is that they are spontaneous -- they are not amenable to controlled experiment, which is how we test rational hypotheses.

For example, "SU(5)" (5 dimension symmetry breaking) elegantly and rationally predicts proton decay, but after over 20 years of observation (in huge water-filled underground tanks), scientist haven't observed a proton decay, which statistically they should have by now, so they have concluded that SU(5) is not true. Particle physics predicts the Higgs boson, and the Large Hadron Collider at CERN was supposed to test the prediction until it broke. Of course, the Higgs boson isn't waiting for them to fix the LHC before it comes into existence.

The point is that existence is independent of rationality. An event is only rational after the fact. Like the author of the article says, an event has to be rational in theory but doesn't have to be in fact.Hume preferred to conclude that we can't know anything, so we might as well have a good time. I'm not sure what Dawkins is trying to prove, other than God doesn't exist, in which case he's gratuitously robbing people of faith who need it.

If miracles happen, then whether they can be explained rationally or scientifically is irrelevant. The problem is the credibility of witnesses. The way I look at a miracle is as myth, which isn't a lie but a metaphor. This enables me to read scripture as if it were true.

Some God Talk for a Change: Part 1

THESE days most people think it unscientific to believe in "miracles", and irreligious not to believe in them. But would the occurrence of miracles really violate the principles of science? And would their non-occurrence really undermine religion? David Hume and Richard Dawkins have attempted to answer these questions in their different ways, but I am not convinced by their arguments, and for me they remain open questions.

In 1748, in one of his key essays, An Enquiry Concerning Human Understanding, the Scottish philosopher David Hume gave an account of the philosophy of miracles that impressed and influenced many thinkers. Hume defines a miracle as "a violation of the laws of nature...a transgression of a law of nature by a particular volition of the Deity, or by the interposition of some invisible agent".

He does not say that miracles could not or do not occur, but that we are unlikely to be able to prove that one has occurred. He argues that whenever we hear a report of a miracle, it is more probable that the reporter is deceived or deceitful than that their report is true. And he suggests that his arguments must undermine religion because they remove what adherents consider to be one of the rational grounds of religious belief.

Hume is right to argue that there is something dubious about miracles, but not quite for the reasons he suggests. The very notion of a miracle is either unintelligible or it has a meaning other than that given by Hume. And it is far from clear that Hume's arguments have any bearing on how rational it is to accept or reject religious beliefs.

I would argue that, by definition, "laws of nature" are universal laws of the form "if A, then B", or "all As are Bs". Logically, they cannot be violated or transgressed, not even by God. If, even on one occasion, for whatever reason, there was an A without a B, then it would not be true to say "if A, then B". What had been thought of as a natural law would in fact not be one.

Hume continues: "That no testimony is sufficient to establish a miracle, unless the testimony be of such a kind, that its falsehood would be more miraculous than the fact, which it endeavours to establish: And even in that case, there is a mutual destruction of arguments, and the superior only gives us an assurance suitable to that degree of force, which remains, after deducting the inferior."

This might sound impressive but it is mere rhetoric and bluster. For example, if a miracle is a violation of a law of nature, there cannot be degrees of miraculousness. In terms of his definition, something either is or is not a miracle. When Hume says it would need to be more miraculous that a report was false than that a miracle had not occurred, he is oscillating between meanings of the term - between his own specific use and the vague, undefined usage of common speech.
Moreover, we do not normally, as Hume suggests, accept or reject our theories on the basis of the number of examples cited to support a proposition (remember, just one black swan undoes the theory that all swans are white), or by trying to calculate the probability that those who report observations are telling the truth.

"Laws" that appear firmly established are often overturned in science, yet we do not need to argue that a miracle must have occurred, assuming whoever reported the apparent overturning is telling the truth. Instead, the rational thing to do is to abandon the natural law or modify what we considered to be a true statement of it.

Which is where Dawkins comes in. In The God Delusion, he writes: "I suspect that alleged miracles provide the strongest reason many believers have for their faith: and miracles, by definition, violate the principles of science." This looks at things the wrong way round. People do not believe in religion because they accept occurrences such as miracles. Surely it is because people believe in particular religions that some interpret some particular occurrences as miracles.

But believers need not mean by "miracles" what Hume and Dawkins mean by them. And belief in miracles need not be inconsistent with an acceptance of science. I have already argued that Hume's definition of miracles violates the principles of logic rather those of science. And anyway, Hume never argued that miracles violate the principles of science. Belief in miracles need not be inconsistent with an acceptance of science.

Dawkins, however, does. In The God Delusion, he asks: "Did Jesus have a human father, or was his mother a virgin at the time of his birth? Whether or not there is enough surviving evidence to decide it, this is still a strictly scientific question with a definite answer in principle: yes or no."
I think there is a lot of truth here. Even so, what Dawkins says does not completely settle the matter, far less settle it in favour of atheism. Suppose the correct answer is: no, Jesus did not have a human father. This would no more establish the truth of religion than the opposite falsifies it. If Jesus was born of a virgin, it does not follow that a law of nature was violated. To say "if A, then B" is not to say that there will be a B only if there is an A.

For instance, human clones could be born of virgins - without violating a universal law. In the Humean sense of a violation of a law of nature, virgin births and the examples of "miracles" that Dawkins gives are not, if they occurred, necessarily violations of natural laws. They are uncommon, possibly astonishing, but as Hume himself said when he was defending suicide, all that occurs is natural, whether or not it occurs frequently.

As for the link between believing in God and believing in miracles, people may believe in God without believing in miracles in any sense of the term. Similarly, people may be scientifically minded and yet ask and give answers to non-scientific questions. The notion "only scientific statements are rational ones" (implicit in so much western thinking) is not itself a scientific statement, it is a false philosophical one.

Consider the Azande, an African tribe whose members believe all deaths and misfortunes are caused by either witchcraft or sorcery. Suppose a falling branch kills someone. On one level, the tribe accepts a scientific account of the incident in terms of, say, the effect of termites on wood. But on another level, they ask why did it come about that the particular person happened to be standing under the tree when the branch happened to fall?

We are unlikely to ask that particular question, and unlikely to accept their particular explanation, but it is not at all clear why we should say that questions of that sort are inappropriate. There is no apparent clash with science or hostility to it, as the British anthropologist Edward Evans-Pritchard, who studied the Azande, was keen to stress.
People might accept a scientific account of why a particular event occurred, yet ask similar sorts of questions about why there are particular juxtapositions of occurrences. Much of this speculation and theorising will be baseless, but there seems no justification for saying all such thinking is nonsensical. By analogy: most conspiracy theories are groundless, but not all of them are.

So some people might think of "miracles" as particular juxtapositions of events, each of which has a correct and acceptable scientific explanation. This might be nonsensical, but it would be interesting to discover wherein the nonsense lies. We should be open not only to possible observations and experiences that might dislodge some of our accepted theories but to thoughts and ways of thinking that may challenge our notion of what acceptable theories and explanations can be like. We deceive ourselves if we imagine science has established that only scientific explanations are valid or that scientific explanations can take only one particular form.

Hugh McLachlan is professor of applied philosophy at the School of Law & Social Sciences, Glasgow Caledonian University, UK. He edited The Kirk, Satan and Salem (The Grimsay Press, 2006)

Tuesday, October 13, 2009

A Poem on Polanski and a Comment by me


Deadline Poet

By Calvin Trillin

October 7, 2009

A youthful error?
Yes, perhaps.
But he's been punished for this lapse--
For decades exiled from LA
He knows, as he wakes up each day,
He'll miss the movers and the shakers.
He'll never get to see the Lakers.
For just one old and small mischance,
He has to live in Paris, France.
He's suffered slurs and other stuff.
Has he not suffered quite enough?
How can these people get so riled?
He only raped a single child.

Why make him into some Darth Vader
For sodomizing one eighth grader?
This man is brilliant, that's for sure--
Authentically, a film auteur.
He gets awards that are his due.
He knows important people, too--
Important people just like us.A
nd we know how to make a fuss.
Celebrities would just be fools
To play by little people's rules.
So Roman's banner we unfurl.
He only raped one little girl.

My Comment

Potently said by Calvin, a master of ironic understatement, here the understatement more than a bit of ironic whimsy, but, rather, barely containing his coiled fury: "He only raped one little girl."

Boy oh boy did the rapist's defenders ever impale themselves on their fatuous self righteousness and preening self importance.

I'd argue they had no moral compass to lose.

By defending him, the rapist's defenders, the poem says, have evidenced their construction and inhabitation of a inverted moral universe: "Celebrities would just be fools/ To play by little people's rules."

More than just defending the rapist, they are, in my court of moral law, complicit in the rapist's breach, guilty of being immoral accessories after the fact.

Me, I sentence them to the ignominy and self revealing ludicrousness of their perfidy.

Polanski and Journalistic Standards


Unsurprisingly, the cinematic community has come out in strong support of Roman Polanski, typically invoking--like the French culture minister before them--his status as a great artist as if it granted him some form of legal immunity. Debra Winger, a judge at the film festival in Zurich that Polanski was planning to attend, called out the Swiss government for its "philistine collusion" in apprehending the fugitive, arguing that "This fledgling festival has been unfairly exploited and whenever this happens the whole art world suffers," which will doubtless come as news to a great number of nonsuffering art-worlders.

Whoopie Goldberg made the point (repeatedly) that this case is not about "rape rape," which is legally true--Polanski plea bargained the initial charges down to unlawful sexual intercourse with a minor in exchange for his confession. But setting the legal mechanics aside, Polanski furnished a 13-year-old with alcohol and a quaalude, repeatedly pressed to take her clothes off, pursued her from room to room through the house despite her protestations that she wanted to go home, and ultimately had vaginal and anal intercourse with her, despite her having pleaded "no" every step of the way. (The Smoking Gun has the original, appalling court testimony here.) If this does not constitute "rape rape," I hope Goldberg will clarify what would.

Today, Martin Scorsese and David Lynch also added their names to those of sixty-odd other cinematic luminaries who've signed a petition calling for Polanski's immediate release. But the award for complete lack of self-awareness has to go to another new signee who placed his moral capital in such matters on the table today as well: Woody Allen.

Update: Commenter jhildner rightly points out that I should have clarified that my description of the crime, contra Goldberg, was based on the victim's grand jury testimony. I don't believe Polanski has ever contested it very vigorously--he said she agreed to the sex and added, charmingly, that she was "not unresponsive"--but I don't know which details, if any, Polanski had to confirm as part of his guilty plea.


Chris, I'm with you generally, and I certainly don't want to add my list to the "Polanski defenders," but is it necessary to repeat the Gailey's grand jury testimony as though it were uncontested, incontrovertible fact? Why not say instead, "Gailey testfied to the grand jury that..." or "According to Gailey's grand jury testimony..." Also, I get tired of the Woody Allen business. It's not the same. He's apparently happily married.

The real issue isn't how rapey Polanski was. That was all dealt with in 1977, when the prosecutors agreed to a conviction on a lesser charge. Nor is the issue, on the other side, what the victim wants, which is to see him let go. ("He's suffered enough," she told an interviewer.) No, the real issue today is a straightforward one: Is Polanski above the law because he has made good movies? The answer is obviously no, and so he should pay his debt to society as anyone else would have to. No special favors for creative genius, money, connections, or anything else. That's a good principle to follow.


...Chris, I'm with you generally, and I certainly don't want to add my list to the "Polanski defenders," but is it necessary to repeat the Gailey's grand jury testimony as though it were uncontested, incontrovertible fact? Why not say instead, "Gailey testfied to the grand jury that..." or "According to Gailey's grand jury testimony..." Also, I get tired of the Woody Allen business. It's not the same. He's apparently happily married...

In my judgment it was not journalistically necessary for Orr to qualify his assertion of Polanski's drugging and sodomizing etc. of his victim with "according to her grand jury testimony" or some such. And it's a question of judgment not logic. For if we follow the *logic* of your complaint, we could never simply say "x murdered y" in a piece of journalism. We would have to say "a judge found", or " a jury found" etc. So the question becomes: when in journalism can we assert a journalistically fact without "according to"?

There are times and places of course when it’s a must to add "according to". But, to my mind, here, the girl's testimony, the eye witness and the guilty plea, even a plea down to a lesser charge in the circumstances, allowed Orr journalistically to say what he said Polanksi did without "according to". A legal fact finder's determination--especially as criminal trials go and with expensive defence lawyers (can we say in journalism O.J. murdered Nicole?)-- would not add greatly to a sound basis for Orr’s Polanski assertion, I'd argue.


The point of the post was to respond to Goldberg's characterization of the incident as not "rape rape." The details of the victim's allegations are what make it "rape rape." Polanski did not plead guilty to those all-important details nor do I believe that he has ever admitted that they are true. So, all we have to corroborate those details is the victim's testimony. (I'm not aware that an eye witness account corroborates them.)

Many are repeating those details as if they were supported by more than that, which is misleading, and makes a difference in how we view Polanski's conduct. Katha Pollitt, for example, has a column today in which those details are repeated after the word "Fact:" Then she says, disingenuously, that those details are undisputed, except by Polanski himself. In other words, they *are* disputed, and not in fact *supported* by anything other than the victim's testimony. I don't believe that a victim's allegation of "rape rape" should be presented as "fact" in any journalism simply because the allegation has been made and it's undisputed that the sex happened. Let me ask you this: If an accusation is all that's required, should the press have repeated the story of the Duke accuser as though it were fact? Should it aid what was later called a rush to accuse? The press is at its best when countering that sort of attitude -- not helping it along.

Yes, it is a judgment call, not dictated by bulletproof logic. I'm not a journalist, though I have had a few close encounters. I think that the profession would generally agree with me on this one. I believe that it's considered okay to say "x murdered y" *after a conviction*, and I think it is uncommon and undesirable to restate unproven or un-admitted or uncorroborated allegations of criminal conduct as fact. You know, given how many wrongful convictions there have been, I see nothing wrong with saying "x was convicted of murdering y," especially in straight news stories.

The real question for me is, "Is it clear from the story what's behind the representations being made?" When you read about these details, I think it's natural to wonder, "Well, are these details true?" It's also natural to wonder, "How do we know?" Some like Pollitt, in their zeal to condemn Polanski's defenders, obscure those two questions in order to beef up their point. It's not super honest. Erring on the side of actually attributing the facts to their source(s) as much as practically possible avoids that problem and prevents you from getting all overreachy.

I don't think constant, ubiquitous attribution is somehow weird or would make journalistic writing bizarre. In fact, it's the dominant mode of journalistic writing, even in opinion and feature pieces, when talking about non-obvious facts. Good writers make the attribution read naturally.


You make an excellent argument, the refutation of which may demand more specific knowledge of the facts of the case than I have. I’m not persuaded but the issue is closer for me than I thought.

I did read the girl’s grand jury testimony. It’s compelling: specific, concrete and consistent though admittedly not tested and only grand juryey.

I may be wrong about the eye witness. I thought there was one. I’m curious about any corroborating evidence—a vial of pills, the champagne bottle, any blood test of the girl, any blood or semen or marks, cuts or tears in her anus and such like.

You of course note the central distinction for our purposes: between what Polanski pleaded guilty to—statutory rape—for which consent is irrelevant and adult rape—“rape, rape”—for which lack of consent is an essential ingredient. I’ll here call the latter rape.

My main point is this: your argument turns on Polanski never having pleaded guilty to rape and never admitting it. And you assume he denies raping her—that her version is disputed. But is disputed? Has he denied it? (I note that he settled civilly with the victim later.) Any plea here of not guilty doesn’t mean too much in that regard, I’d argue, particularly considering that it was leverage for a plea deal.

I am not aware that ever he denied the girl’s evidence. If he did, especially relatively contemporaneously, but later too, I’d have more sympathy for -maybe join-your position. But absent that I don’t see how his silence on the issue raises a dispute in the world of life as opposed to a criminal or even a civil court.

And can’t we for our purposes distinguish the Duke “rape case” on this basis? There, there was an immediate and vigorous denial right from the get go, a vigorous defence throughout, and no plea to lesser charges. And in applying our judgment to whether to say “according to” here, I think that the history of wrongful convictions generally is beside the particular circumstances of what we are discussing.

I tend to agree with your observation that in their zeal to lambast the defenders and the Goldbergs there may be an ill considered rush to assert facts. But here, with some consideration, if the intervening years are not graced with Polanski’s denial, then with what surrounds this issue, including the sworn testimony, the guilty plea, the civil settlement, and for me-- coup de grace--the lack of a denial, I don’t see the need to say “according to”; and I don't see what's disputed--your main argument.

In these terms, I agree also, who wouldn’t?, with your assertion that “it is uncommon and undesirable to restate unproven or un-admitted or uncorroborated allegations of criminal conduct as fact.” As I say I just don’t have a problem with saying it about Polanski absent any denial by him.



Pollitt implied in her column that Polanski *had* disputed Gailey's account, because she wrote that Gailey's allegations were undisputed except by Polanski. A very quick Internet research effort on my part has failed to yield confirmation, or refuation, of that. So, I don't know. Perhaps Polanski's lawyer issued a statement of denial soon after charges were brought; perhaps not. I also don't know what else was presented to the grand jury. I haven't read about anything else.

I don't think that the presence of a denial -- vigorous, immediate, or otherwise -- should determine journalistic convention here. If the people accused of rape in the Duke case had decided to remain publicly silent -- as many accused of a crime do -- do you think that the press was thereby authorized to repeat the allegations as fact? I don't think so. The allegations would have remained, as I said, un-admitted, unproven, and uncorroborated. No, the press's job was to report that the woman had made x allegations. Your analysis has the reporter making a lot of fact-intensive, fuzzy decisions in order to determine when it is okay to pass judgment semantically.

But why insist on making that leap at all? Why not simply present the information?

So, suppose Polanski has never denied the allegations. Suppose further that he granted interviews in which he had the opportunity to deny them but did not. That's certainly a relevant fact that doesn't look good for him. Pollitt could have written the same exact column that she wrote, except instead of saying, "Fact: Polanski did all these bad things," she could have said something like, "These are the facts: The girl testified that Polanski did all these bad things. Polanski has never denied the girl's account, despite giving interviews to the press in which he talked about the crime." Because it was an opinion piece, she could have also opined on the credibility of Gailey's testimony.

All I'm saying is, Let's get straight what we know and how we know it. My version is more credible *and* more damning of Polanski than hers. Your arguments are for why, given the facts we know, we should consider Polanski guilty of ordinary -- not statutory -- rape. Reporters should present the facts so that we can make up our own minds as to how to view the thing. Columnists should also present the facts in the course of making their argument. It makes the argument better!

I also read the testimony, and I don't want to convey the impression that I didn't find it compelling or that I dismissed it as probably fabircated in some measure. If I had to guess based on the transcript, I would guess that her account was true. She gave details that simply don't seem made up. But that doesn't mean the press is authorized to likewise make that guess, hide the fact that it's a guess, and pretend instead that it's true like water is wet.


I don’t want to repeat myself unnecessarily.

And let’s for the sake of argument stipulate that Polanski has never publicly denied—from then to now, and not counting the original plea of not guilty to all counts— the allegations against him of non consensually having eaten the young girl out, and having fucked her front and back after giving her some part of a Quaalude and some champagne.

I agree with you that the lack of a denial—immediate, vigorous or otherwise— does not necessarily vouch for an admission or for lack of contention affecting journalistic standards. But, in these terms, Duke still remains an inapposite example. Even if the accuseds had remained publicly silent, they nonetheless defended the case. But shift the facts: they remain silent, make a plea deal and plead nolo contendere—a term we don’t use in Canada— and are convicted in the result and for doing so some counts are dropped simply for the sake of a bargain. And say there is untested but probative evidence supporting the dropped charges. On these supposes, the example starts to become more apposite.

The point about Polanski’s (stipulated here) denial, I contend, is that, as I have said, in all the surrounding circumstances one can reasonably journalistically infer lack of contention from his silence. And. again, my argument is that lack of contention can in some instances, such as with Polanski, dispense with "according to".

I welcome your example of Polanski granting interviews and never denying the allegations even when given a chance to. It's even stronger than my suggested stipulation that he simply never denied the allegations. Your example leads me to try and synthesize my arguments which go to two issues between us, the first a particular instance of the second: 1. what is so sacrosanct about a conviction (or a civil determination for that matter) at law that it dispenses with need to say “according to” in saying x did such and such; and 2. On what principle or criteria is a fact a fact journalistically? I don’t think the point is so much convention as it's standards, which convention may be rote for, and, even more, the thinking behind the standards.

I have tried to suggest before that it is hard for me to understand—given how contingent judicial fact finding is, what a fragile exercise it can be, how legal certitude can vary in different determinations with the quality of the evidence, say DNA matches compared to eye witness accounts (I have some read some on how shaky even things like fingerprint, hair and fiber analysis, once thought gold standards of proof, can be.)—why judicial determination dispenses with the need for “according to” but our stipulated Polansky active silence in its factual context does not.

That puzzlement merges with my concern over a kind of infinite regress with “according to”, which my example of criminal conviction was first meant to illustrate. My argument is that unless there is reason to doubt a judicial determination, say by the protest of the one who fares poorly under it, such determination allows one to say journalistically x did such and such, dispensing with “according to”. And to bring my argument to its where-I -began crescendo, protest over the judicial determination should, I would think, lead the journalist to say at minimum, “while convicted x still maintains his innocence” or whatever x maintains, while x’s silence obviates such needed qualification.

If we can look at non-contested judicial determinations as functionally satisfying the standards for journalistic facts—which standards I am admittedly nowhere articulating—then I am moved to think the a set of facts such as our stipulated Polanski’s will satisfy functionally the same principle or criteria with the functional cherry on the standards cake being his silence.

Basman on Michael Oren on Remembering the Holocaust and on Gideon Levy




If I am understanding some of Oren’s reasoning correctly I disagree with him, respectfully.
He seems to argue that it was important for Netanyahu to stress the reality of the Holocaust because that is essential to Israel’s self defence:“Accordingly, denying the Holocaust not only deprives Israel of its raison d'être, but, more nefariously still, it invalidates the Jews' need to defend themselves…”

Firstly, I dissent from the notion that the Holocaust defines Israel’s raison d’etre, but more I fail to understand how denying the Holocaust’s reality—a travesty I mean not at all to gainsay—invalidates Israel’s need to defend itself.

Obama has already been severely criticized for in his Cairo speech making the Holocaust the sole repository of causation for Israel’s existence while skirting totally the deep Judean connection to the land as it ranges from the earliest mists of history to recent history ante World War II.

The Holocaust adds tragic resonance to Israel’s need to defend itself but it is neither a necessary nor a sufficient condition of that need, which is existentially self defining and self justifying.

I have a different reading of Netanyahu’s great U.N. speech than Oren’s and a different reading of why Netanyahu was stirringly correct to dwell on the reality of the Holocaust.

I wrote about that reading when commenting on another thread on Gideon Levy’s soft headed criticism of the speech. I’ll repeat some of what I said:

“…Gideon Levy from this and the few other things I have read by him is quite soft headed.

My impression was that Netanyahu briefly but powerfully reminded the world —in which there are doubters and deniers—of the Holocaust not to prove that it happened but to demonstrate how egregiously the U.N. shames itself by letting such perfidy occupy centre stage.

Similarly the comparison between Hamas and the Nazis was apt in context. The context is virulent anti Semitism and the desire to accomplish genocide. That aptness is driven by the extent to which Hamas is an Iranian proxy and the context’s circle gets completed by the fact and content of Ahmadinejad’s evil screeds.

What is inapposite and obtuse is Levy’s demand for historical exactitude in the comparison of either Hamas and the Nazis or the London Blitz and the Gazan shelling. The point was to contrast Churchill’s decision to firebomb Dresden with Israel’s attempts in very difficult circumstances—the embedding of Hamas fighters—in civilian enclaves to minimize civilian casualties while exercising its absolute right to defend itself, and deter, indiscriminate shelling, which appears in fact to have proven somewhat successful. (See

Here’s an instance of that obtuseness of levy’s sheer inability what Netanyahu was trying to say: “…And if we can compare a poorly equipped terrorist organization to the horrific Nazi killing machine, why should others not compare the Nazis' behavior to that of Israel Defense Forces soldiers? In both cases, the comparison is baseless and infuriating…”

We all should know what’s really baseless and infuriating here.

Netanyahu was correct to emphasize the Holocaust party for the reasons already mentioned. But what sneering stupidity do we get from Levy: “Netanyahu began the speech as if he were chairman of the Yad Vashem Holocaust memorial - Holocaust, Holocaust, Holocaust; his family and his wife's family.” And as if such stupidity wasn’t enough get this: “No less demagogic was his attack on the Iranian regime. They shoot demonstrators there, he protested vehemently. As if they don't do that in our Bil'in and Na'alin.”

What is shockingly being said here is that Israel in dealing with these protestors is morally equivalent to Iran’s massive and violent suppression of its dissidents such that Netanyahu has no ground on which to stand to call out Iranian brutality in the suppression of its own citizens,. And deepening the shock is the intimation that the response to the Bil’in and Na’alin protestors is comparable in its scope to what Iran did. Absent that intimation the comment is even more self evidently idiotic.

And how about this: “Bashar Assad, who has been knocking on doors for years, claiming he wants peace? No one has opened the doors. “ Levy should read this:

And so on.

The sneering ignorance animating Levy’s piece, the condescension—“Talk of security and victims may still have buyers among the WIZO women of America, but that's it”—ironic given the false and self refuting assumption of Levy’s superiority to these women….”

Sunday, October 11, 2009

Basman on the Below

After quite liking the last diarist entry read by me on Burke and faux Burkeans, amongst whom George Will is not to be counted, I thought Wieseltier and I had solved our problems and I could go on to enjoy his pieces. But then he drops this piece of shit on us and stinks up the joint unbearably. Here and there I can glean some sense, but overall it is febrile in its desperate attempt at aphoristic conciseness. Wallowing in incomprehensibility, Wieseltier turns consciseness into reconditeness.

Loving Skip James, I liked this quote from him, which must be heard sung by the great man to be truly appreciated:

“I ain't gonna cry no more
Because down this road every traveler must go.”

These lines put me in mind to contrast briefly Wieseltier with the great and relatively unheralded genius of Skip James. Consider this for example:, also a brilliantly weird song on death, albeit from a perspective altogether different from the puzzling fragments of premises that Weiseltier proceeds from.

Consider the high falutin Wiesletier who emerges from this diarist piece. For all its erudition and skip skipping from one learned reference to the next, it all comes to a self aggrandizing, complicated and rather preening hodge podge of a near nothing transposed over its underlying cliche—one more curmudgeon’s whack at the emptiness of celebrity: it’s been done to death.

Meanwhile an untutored genius just in the three and a bit minutes of Cypress Grove Blues creates a shattering work of art that makes mockery of Wieseltier’s convoluted emptiness. He should think on the probability that when the dust of time settles, Skip James’s genius will endure for the discerning, while Wieseltier for all his outpourings will be nary an unread and unreadable footnote in the intellectual history of these times.

Leon Weiseltier on Celebrity Death

Washington Diarist: The Trend in Dying
Leon Wieseltier

Happy is the eye that saw all this, but our souls were anguished by what our ear heard." This is the refrain of an ancient poem in the liturgy of Yom Kippur, a lament for its author's belatedness. It concludes the extraordinary verse narrative of the primal service, long ago lost, at the Temple in Jerusalem--the most awesome hour in early Judaism, when the High Priest ventured into the Holy of Holies and uttered the otherwise unutterable Divine Name, and answered the assembly's affirmation of the Name with the exhortation, "Be cleansed!"; and the most awful hour, when this same numinous figure picked up a knife and murdered a bullock and a goat and a few rams, and sprinkled blood in choreographed patterns of sanguinary absolution, and mixed the blood, and sent the scapegoat over a desert cliff to be shattered "like potter's ware." When I was a boy, I watched old men cry over these passages. It was their distance they were weeping for: they wished to see but they only heard. It is said that Rabbi Abraham Kook--infamous in our day as the idol of the settlers' movement, but in fact one of the great spiritual writers, one of the most light-saturated souls, of the twentieth century--sobbed at the remains of the Temple, at the Western Wall in Jerusalem, because of the priestly service that its destruction had denied him. This always struck me as rather a narrow focus on the Judean catastrophe. And in so radiant a being, why the nostalgia for the knife? I am glad that the knife is gone. I am happy only to hear about it, and my soul would be anguished were my eyes to see it. When my attention wandered in shul--it always does, I am no good at prayer, I lack the cosmology for it--I pondered those lines. We differ in our hopes for our eyes and our ears; we burn, but not uniformly; we are late, but not for the same dream; we know loss, but not the same loss. There are as many objects for tears as there are tears. We may be known by what we mourn, and do not mourn, for. It makes no sense to grieve for everything; or more accurately, the man who grieves for everything grieves really for himself.

Now leave the shul and lower the level. In the Style section of The Washington Post a few months ago, there appeared this supplication: "God, please stop taking away our celebrities." It is one of the exemplary American sentences of our day. It began a trend piece, the trend in this instance being celebrity death. Jackson, Cronkite, Fawcett, Carradine, Hewitt, Kennedy Shriver, McNamara, Malden, Novak, McMahon--the diligent reporter noted every sighting of the angel of death, though not a word about what it wore or where it ate. The star-struck reaper has meanwhile claimed also Swayze, Kennedy, Travers, Gelbart, Dunne, Safire, and (here I suspend all satire) my twinkling and troublemaking friend Irving Kristol, the happiest of happy warriors. Where will it end? It is our world now, and pray for us. The Post piece also brought me news of, to which I immediately repaired. "We won't quit until they're all dead," the site says. (Also: "Why? Kathy Lee Gifford, that's why.") The Internet never stops breaking new ground in insensitivity, but an idea may sometimes be found in the derision. So what sort of sorrow is sorrow for a celebrity? Consider the death of Walter Cronkite. He was an institution of American life, no question about it. His stability was a boon in an era of instability. He represented a belief in objectivity that our culture abandoned a long time ago. The media exequies for Cronkite were no surprise, of course: there is no undertaker like television, and he was its own. But how much of a nation's sadness, I wonder, was a generation's sadness--a commemoration by other means of the circumstances of its youth? Cronkite was one of those circumstances. Mourning for him was like mourning for vinyl, or pay phones, or the Readers' Guide to Periodical Literature. It was another reminder of how much that was ours, and was good, has fled. ("Mad Men" owes some of its success to the warmth of its pastness, to the feeling of respite from change, of fastidious restoration, that it provides.) Do not mock this melancholy. It is generational not only in the sense that it is experienced by people of a certain age, but also in the sense that it is as inexorable as the years. Nobody will escape it. One day you will look up emptily from the everythingPod in your hand and want your Death Cab for Cutie days back.

Celebrities are not people, except for themselves, and maybe not even for themselves. They are products; artificially enhanced markers of this moment and then the next; mnemonic devices for obscure existences that measure themselves out in mass-market references, in the increasingly transient iconographies of the entertainment environment. At this late date in the critical theory of celebrity (which is itself a variety of the virus) there may be little to add, except to repeat that a vicarious life is an alienated life, even if alienation is mistaken for participation. The Style section was theologically in error. God does not recognize celebrity. In paradise every name is boldfaced. As for the death of Michael Jackson, the whole tabloid humanoid circus, with its vultures and its vampires, and its stupid rabbi: I was more moved by the death of Balthazar. Balthazar was a donkey in a shattering film by Bresson. He loved, and served, and suffered, and went out into a meadow to die. Balthazar's death was as real as Michael Jackson's death was unreal. Nobody who saw the donkey die will forget its wisdom. Nobody who saw Michael Jackson die will forget Anderson Cooper.

Last month a man named Francis Mason died. I did not know him, though we exchanged letters some years ago. For many years he edited Ballet Review, a small and magnificent journal that was an education for me. It masterfully combined scholarship, criticism, interviews, photographs, all of it held together with staples and available, but not frequently enough, at the Ballet Shop on Broadway and 63rd Street, whose proprietor died last month. (I can hear you laughing.) We now live in a world in which such a journal and such a shop are almost inconceivable. Sure, we have apps. But I will not be texted out of my elegiac mood. The notion that we have impoverished ourselves may be unexciting, but it is true. Happy is the eye that saw all this, but our souls were anguished by what our ear heard. Or as James McMurtry sang the other night in Alexandria, "I don't want another drink. I only want that last one again."