Author: Ophelia Benson

Enough of all this pallid nerdy arguing and wondering and marching back and forth. I have been persuaded. much against my better judgment, that what I really want is a very long walk on a mountain trail. I don’t think it is, I think I’ll cry and whine and ask to be carried and say my foot hurts and ask for ice cream and say my face is cold and ask for a cookie and say why aren’t we there yet and ask for brandy and say I want to go home right now. But I have acquiesced, despite the insufficiently theorized nature of this proposed very long walk and the absence of coffee houses and bookshops on this much-advertised trail thingy. I have acquiesced, I have bowed, I have given in, I have said oh all right. I’m told we will see eagles and lions and orcas and lyre birds and stoats and wildebeest, and I must say I do like the sound of that. Not as much as cookies and brandy and coffee, but enough.

Eve Garrard comments at Normblog on this whole incompletely theorized thing we have going here (though not in those terms, which I have only just this second dragged in). Her comment is interesting, and it helpfully omits the part about being puzzled as to why I keep etc etc (yes, I am having fun with that, why do you ask?) – but it still isn’t quite what I’m talking about, at least I think it isn’t.

It’s very hard to see why we would think that Holocaust-denial ought to be legally permissible unless we think that there’s a moral right in play, that people have a moral right to speak their minds, even if what their minds contain is false and indeed disgusting. But this is what Ophelia jibs at – given that Holocaust-denial involves lies and falsifications, why should we think we have a moral right to engage in it? How can we have a moral right to lie, falsify the evidence, play fast and loose with the truth?

That isn’t exactly what I jib at. Because I don’t think Holocaust denial does necessarily involve lies and falsifications. It can involve error, self-deception, misinterpretation. It can also involve, no doubt, transient lies in speech rather than in print, and it can involve minor infrequent lies in print – lies that are unsystematic enough to fall short of unmistakable deception and falsification. But I take systematic falsification to be a different matter – and, again, I think it is telling that people mostly don’t defend Irving’s right to engage in systematic falsification; at the very least I wonder why that is, and if it doesn’t hint at something.

This is not an unreasonable question. Lies and falsifications are generally (and certainly in the case of Holocaust-denial) morally wrong. And it does seem puzzling, even paradoxical, to say that we can have a moral right to do that which is morally wrong. Nonetheless it’s true that we do: we sometimes have the moral right to act – that is, people ought not to prevent us from acting – in ways which are undoubtedly morally wrong.

Hmm. Which people and in what sense of ‘prevent us’ I wonder. In the examples Eve gives, I’m not sure it’s true that people close to us ought not to try to prevent us by persuasion, for instance. But no doubt she means forcibly prevent, which is another matter. Anyway, this is Eve’s field, and it’s certainly not mine, so I’ll take her word for it. It’s like that comment Jon Pike made in reviewing Honderich in Democratiya – ‘there is a standard, ordinary language distinction between having a right to do X and X being the right thing to do.’ I’ve been keeping it in mind throughout this discussion. But I don’t think it applies to falsification on the scale Irving practiced it – or at least I’m not convinced that it does. I’m just not convinced that he does have a moral right to deliberately falsify the evidence on the scale he did (remember what Lipstadt said: every single footnote had something wrong with it). I don’t think it should be a police matter, I don’t think it should be an imprisonable offence, but I’m still not convinced it’s a free speech right or a moral right. I think it’s something in between those (something not fully theorized, perhaps).

I’m going to do a Cool Hand Luke on you. What we have here is an incompletely theorized agreement.

From ‘Incompletely Theorized Agreements,’ chapter 2 of Legal Reasoning and Political Conflict by Cass Sunstein, pp 35-37.

Hence the pervasive legal and political phenomenon of an agreement on a general principle alongside disagreement about particular cases. The agreement is incompletely theorized in the sense that it is incompletely specified. Much of the key work must be done by others, often through casuistical judgments at the point of application.

Well there you go. That’s all I’m saying. It’s not so odd – and in fact it happens all the time. That’s what Sunstein means by referring to a ‘pervasive legal and political phenomenon’ – that you see a lot of it. It’s all over the place. It’s not rare. It’s not astonishing or peculiar or inexplicable; it’s pervasive. Pervasive, I tell you! So all these people knitting their brows in puzzlement and surprise and puzzlement at my persistence in seeing problems and ambiguities where they see simplicity and everything being settled, are puzzled at the unpuzzling. In fact, I should be the one who is puzzled at their puzzlement. I’ll do that: I’ll be puzzled. ‘What ho,’ I’ll say, ‘have they never read Cass Sunstein? Whence comes all this perturbation and surprise? This sort of thing is the merest commonplace; it is pervasive.’ Then I’ll polish off that glass of whiskey and demand another, and a pizza while you’re at it.

Abstract provisions protect ‘freedom of speech,’ religious liberty,’ and ‘equality under the law,’ and citizens agree on those abstractions in the midst of sharp disputes about what those provisions really entail.

Don’t we though. That’s all I’m saying. We agree on the abstractions and then immediately proceed to have sharp disputes about what those provisions really entail – disputes which aren’t always and necessarily easily resolved or settled. Disputes which one party can declare settled but which the other party (or parties) can still, however unaccountably and puzzlingly and brow-knittingly, obstinately declare not settled, still open, still unresolved, in fact perhaps of their nature not resolvable to the satisfaction of all people (even all reasonable people, sensible people, paying attention people). The other party remains at liberty (freedom of speech!) to say no, not settled, there are still tensions and competing goods, and I’m not going to say there aren’t, not if it was ever so.

I’m not even being inconsistent. Incoherent, no doubt, unclear, as one reader mentioned, but not inconsistent. I’ve always said I’m not a free speech absolutist; I think it’s a very great good, and certainly a much greater good than the protection of notions such as the holy, the sacred, blasphemy, heresy, orthodoxy, taboo; but I don’t think it trumps everything; there are some cases about which I’m simply ambivalent, I’m uncertain, I’m torn. I’m incompletely theorized.

Some more house-circling, since Jonathan asked me a question, which seems eccentric after wondering why I keep talking, but never mind.

Jonathan points out that Norm does mention the point about falsifying the evidence; true; a fair cop; I should have looked harder and qualified what I said. But, he only mentions it, he doesn’t address it, and since it’s most of what I’ve been wondering about, I still say he’s been talking past me rather than ‘settl[ing] things pretty definitively’.

Ophelia also stands by her view that Holocaust denial shouldn’t be a criminal offence – from which the inference is surely unavoidable that this is a liberty right that she not merely notes as a legal fact but also endorses. Yet she resists the conclusion that Holocaust denial, falsifying the evidence and so on, is then covered – as she appeared originally to deny, or at least to question – as protected free speech (this, of course, provided it does not breach laws against incitement).

But my whole point has been that Holocaust denial and falsifying the evidence are two separate things, not more or less the same thing along with ‘so on’. Or at least, in the questions I’m asking, they are. I did say that, after all.

But on the other hand, that still leaves out what I’ve been wondering about, which is the fact that Irving did more than just write and publish that the Holocaust did not happen or that it has been exaggerated – he also falsified the evidence…

And (er) so on, for the rest of the paragraph. So Norm mentioned falsifying the evidence, but he didn’t address it, which is what I said in the latest post: ‘Well, he’s no doubt settled what he was talking about, but he hasn’t settled what I’ve been talking about, because he’s barely mentioned it, and he hasn’t addressed it.’ The ‘barely mentioned’ referred to the mention that Jonathan quoted, and the ‘hasn’t addressed it’ referred to just that. I separated the two, for instance by saying that Irving did more than just deny the Holocaust, he falsified the evidence. So a mention of the falsification that runs it together with denial and with so on is just what I’m taking issue with.

Now that I’ve started I’ll just say a little more, since I was meaning perhaps to comment on Norm’s post (not really answer, since I think he’s said all he wants to) anyway. The comment is what I’ve said: I think mere denial is one thing and falsification is another. I don’t think denial should be a crime (although I think it tentatively, and I don’t therefore think Germany and Austria shouldn’t make it a crime – I suspend judgment on that – because they have understandable reasons to do so), but it doesn’t follow that I think falsification of evidence shouldn’t be a crime. I don’t know what I think about that; but I do think they are separate questions. I mentioned that commenters mostly don’t mention the falsification aspect. You get people saying Irving shouldn’t go to jail for an opinion, however offensive it is; you don’t get (so much) people saying Irving shouldn’t go to jail for lying and falsifying evidence. Why is that? One reason, I’m guessing, is that it’s pretty hard to think of any situation in which saying something ‘offensive’ is against the law (except the UK’s blasphemy law – ?) but it is not hard to think of situations when lying is against the law. Vendors can’t lie, you can’t lie in a contract, perjury is against the law; there are all sorts of situations in which falsifying records would be obstruction of justice or fraud and be against the law. So – it’s not self-evidently absurd to think that there is an issue here. Have I been clear enough about it this time? I’m saying that falsification of evidence is not identical or equivalent to saying or writing an offensive opinion.

Jonathan asked:

Perhaps Ophelia might explain what the salient difference is between denying that the Holocaust took place, which is what Norm has been talking about in all his posts, and “falsifying the evidence” about it?

Denial can be a mere opinion, an intepretation of the evidence; it doesn’t entail lying; it needn’t involve perjury. Falsification does entail lying. That’s why millions of dollars were spent on examining Irving’s books – to find evidence that he had falsified, and thus lied, rather than merely been mistaken. That’s what the 2000 trial showed about Irving: he wasn’t just wrong, he wasn’t just wrong and malevolent; he falsified the evidence, and that was not ‘free speech’, it wasn’t protected. That’s the salient difference. I’m not saying therefore he should be in the slammer, I’m just saying there’s an issue. I can’t help suspecting that the reason we don’t hear people defend his right to lie all that much is that they don’t entirely believe in such a right. I don’t entirely believe in it myself – I have grave doubts about it.

Hmm. I had moved on to other things for the moment, while still planning to say another word or two later if I got around to it. But I’ll say another word or two now, out of irritation. There’s nothing like irritation to cause one to say a word now rather than later. (See, this is where misanthropy comes in. Lycanthropy too, if you argue with wolves. That’s a swell movie with Kevin Bacon – Argues With Wolves.) I’ll tell you why, since you ask.

I’ve been following with some interest the discussion between Norman Geras and Ophelia Benson about David Irving’s imprisonment. Norm’s most recent post seemed to me to settle things pretty definitively…The best sense I can make of Ophelia’s position, which she has reiterated in a further reply to Norm, is that she thinks that Irving deserves all the moral opprobrium, short of legal sanction (which she says she disapproves of), that comes his way…But that doesn’t touch Norm’s point, as he makes clear here. Which is why it seems odd to me that Ophelia should have chosen to go round the houses again – especially as the clearest bit of the new post just restates Norm’s view for him.

Because it’s my Notes and Comment, that’s why (at least, unless and until its owner closes it down, it is). Because I can go around any dang houses I want to go around; because I can bore up one side and down the other if I want to; because I can talk about dust, or shopping lists, or plumbing, or philately, or Akron, or macadam, or laundry, or weeds, or nail clippings, or bus schedules, or any boring thing I think of, that’s why. Because nobody has to read it, that’s why. Because I like going around houses, and around and around and around, and anyone who doesn’t like going around houses doesn’t have to go, so why bother complaining if I like to? Hah?

And since I’m irritated, I’ll point out that in fact some of the things I’ve been talking about have still been left unaddressed and unmentioned by Norm’s definitive posts, and that I’ve mentioned them again, and that this last most definitive post still didn’t mention them. So I’m not so sure things have been settled pretty definitively. Not the things I was talking about anyway…crooning and mumbling away to myself while I went wandering blamelessly and innocently around all these tiresome houses. The main thing that still hasn’t been addressed, that seems to be an elephant in the living room, is the fact that Irving lied and falsified the evidence. I’ve only said that about four times now, but that aspect keeps getting left out so I trudge around the houses again only to have the point about lying and falsification (oh look, it’s not four times, it’s six) left out yet again. And then I get chastised for going around the houses yet again when Norm has definitively settled the matter. Well, he’s no doubt settled what he was talking about, but he hasn’t settled what I’ve been talking about, because he’s barely mentioned it, and he hasn’t addressed it.

And I am not convinced. All right? That’s the reason for all the house-traipsing; I’m not convinced. I’m not convinced people actually think Irving has a right, whether a liberty right or a moral right or a natural right or an inalienable right, to lie and falsify the evidence. And if people do actually think that, I find it odd that they don’t say it more often. That’s where all this started. I wondered why commenters – in newspapers and the like – who talked of Irving and free speech didn’t mention the lying and falsification question. I still wonder. I suspect it’s because they’re not convinced Irving or anyone has such a right any more than I am, but they’re also not sure what they think about that or how to address it, so they don’t, they just cover it up, instead, and talk about the much easier issue, of what is ‘offensive’ or outrageous or the like in what Irving says. Except Lipstadt and Evans, of course. They’re sharply aware of that aspect, and don’t leave it out, but other people do.

So. That is a house that remains insufficiently explored, let alone settled, as far as I’m concerned, and I might go around it yet again at any time, so consider yourselves warned. If you don’t want to go around the houses again, then don’t join the tour.

John Gray is naughty. He’s not Leon Wieseltier, he’s not Steve Fuller, but he’s doing the same strawmannish kind of arguing. Why do people do that? It’s odd. Why do they attack things people don’t claim? If the claims haven’t been made, what is the point of attacking them? I mean, what do they get out of it? What is their aim? Wouldn’t you think the point would be to say what is wrong with what the person did actually say, so as to alert readers to that and persuade them of what’s wrong with it? What’s the point of saying what is wrong with things the person didn’t say? It just seems like a waste of time and effort.

Typically, philosophers take it for granted that religions are systems of belief, and condemn them for failing to meet standards of proof that are applied in other areas of human life, above all in science.

That’s just wrong, and crudely wrong. It’s not a matter of ‘standards of proof,’ it’s a matter of evidence. Gray must know that; it’s very basic. So why does he get it wrong? What’s the point? And philosophers don’t typically take it for granted that religions are systems of belief, they typically point out that that is what they are, giving evidence (not proof, evidence) to show that that is true. So right from the start we have Gray misdescribing two central issues. That doesn’t bode well.

One cannot make a sharp distinction between natural processes and supernatural agents unless one presupposes a view of the world something like that presented in the biblical creation story, and the distinction is not found in most of the world’s religions. For example, in animism – which must rank as the oldest and most universal religion – spirits are seen as part of the natural world.

Huh? Why can’t one presuppose a view of the world not at all like that presented in the biblical creation story, and not see ‘spirits’ as part of the natural world because there is no evidence for them?

More fundamentally, it is a mistake to assume that belief is the core of religion. This may seem self-evident to many philosophers, but in fact belief is not very important in most religions…For the majority of humankind, religion has always been about practice rather than belief. In fixating on the belief-content of religion, Dennett emulates Christianity at its most rationalistic and dogmatic.

Well, I’m sorry, but I just don’t ‘believe’ that. I can believe that religion has always been about practice as well as belief, but not rather than. Not around these here monotheistic parts, anyway – and monotheism does take in a fair bit of the planet. Godbotherers do have beliefs about that god. Gray should ask some one of these days.

Wolpert interprets religion as a type of adaptive behaviour in which our beliefs are shaped by our practical needs. Like Dennett, he seems ignorant of the vast range of religious traditions in which belief is peripheral. Again, he thinks of religion as having to do with supernatural phenomena, writing naively: “Religion is concerned with the supernatural, and this involves forces and causes beyond our normal experience of nature.”

Naïvely. What planet does Gray live on? I’d be quite happy to live there too, it sounds much safer than this one, but I have no idea where it is. (Naïve of me, no doubt.)

[I]t is not supernatural belief that is hard-wired in humans: it is the need for myth, and it fuels secular belief as much as traditional religion…Myths are not primitive scientific theories that belong in the infancy of the species. They are symbolic narratives that give meaning to the lives of those who accept them. The chief difference between religious and secular believers is that, while the former have long known their myths to be extremely questionable, the latter imagine their own to be literally true.

Oh, come on. The Iliad is a symbolic narrative that gives meaning, so is Hamlet, so is Wuthering Heights. Religion is something else, and the people who ‘accept’ religion – and there are a good few of them around – do not in the least know their myths to be extremely questionable, which is why they’re always whanging the rest of us over the head with them. This whole silly trope ‘religion is myth is narrative is questionable and tentative and not believed and it is atheism or ‘secular belief’ that is the real religion and that is truly certain and dogmatic and believed without question’ – is false, and endlessly triumphantly smugly recycled as if it were both true and original. How irritating it is. I said Gray isn’t Wieseltier or Fuller, but he does border on arguing in their style here. Very tiresome.

It’s great that the Home Office is taking on forced marriage. But in looking at their page on the subject, I was unable to help looking at things in the margin of that page, which prompted feelings of dread and nausea and revulsion. So I clicked one of the links and the feelings got worse. Is this just me? See what you think. The page in question is called (the nausea begins already) ‘Faith Communities’.

Multi-cultural communities are often multi- faith communities and this should be fully recognised in policies aimed at promoting diversity. Fostering understanding and respect between different faiths is vital in practically implementing community cohesion strategies.

Partly it’s just the language. It’s the irritating insistence on repeating the words ‘community’ and ‘faith’ as often as is humanly possible, or indeed oftener. As if anyone might be in danger of not getting the idea, that we’re supposed to think both are good things, really good things, really really good things. And then there is the absurdity of insisting on community and diversity at the same time. Well which is it?! But more basically there is the peremptory expectation of understanding and respect between different ‘faiths’. They don’t get it, do they. ‘Faiths’ are just the things that are not good at mutual ‘respect’ and ‘understanding’ because part of what is supposed to be respected and understood, part of what is supposed to be held as a matter of ‘faith’, is who the Big Guy is, who the Big Guy’s prophets or children or PR agents are, what the Holy Book is; and the ‘faiths’ in question have different answers to those questions. So hammering away at ‘faith’ at the same time as expecting them to understand and respect each other is – ludicrous, frankly. It is only to the degree that the ‘faith’ becomes attenuated and weak and not really doctrinally or dogmatically adhered to that mutual respect and understanding become possible.

And that of course is quite apart from the way that the whole idea simply ignores the existence of the faith-free, and of secularists. And then there’s the thing about community cohesion strategies. Oh how that does make the fjords seem to glimmer invitingly in the distance – the welcome antidote to and refuge from mandatory cohesion. I so don’t want to cohere. You know? Not unless I choose to anyway. Not unless I’m allowed first to consider (quietly, in a corner by myself somewhere, in silence and calm, without any social workers or parish outreach personnel or community cohesion officers gripping me by the back of the neck and squeezing) exactly what it is I’m expected to cohere to. Not unless I have time and ability and suitable conditions to examine every line of the contract before signing it. But that’s just what that passage doesn’t mention. It’s all very unconditional and demanding. It’s like conscription rather than like joining a club. As a matter of fact it’s like forced marriage as opposed to the voluntary kind. Ironic that the HO is opposing forced marriage on one page while demanding rhetorically-forced community cohesion on another page. The problem is the same. No, I want to see if I can stand the prospective spouse first; I want to be able to say no. No, I want to see if I can stand the prospective community first; I want to be able to say no.

And it’s the same with respect and understanding, as well as cohesion. All three of them are things that really shouldn’t be expected or demanded ahead of time, sight unseen, no matter what the content. They all ought to be things that are in our own gift to bestow or withold as we choose. We really have to be able to choose our friends and the people we respect because we actually do respect them, as opposed to having them thrust upon us by the Home Office or by the district nurse.

Just to let you know, a system crucial for B&W’s functioning seems to have shut down completely, so if it all freezes or disappears, that’s why – it’s not because I’ve run off to the fjords.

Meanwhile I’ll just keep going as long as it works. Who knows, maybe that will be years!