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Blast from the past: an interview with Avi Lewis

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Avi Lewis from The Take

This is an interview I conducted with journalist, producer, and talk show host Avi Lewis during 1999. Lewis has had many accomplishments, but at the time I knew him for his gig co-hosting and reporting for The New Music on the Much Music Network (1996-99), and for his role in producing and hosting the CBC panel show Counterspin (1998-2004). During that period, I was in high school, and considering a career in journalism. I was then — as now — an admirer of his work, and he was both very gracious and very generous for letting me interview him for a school project. For those reasons, it is fair to say that the exchange was a defining moment in how I approach life.

I reproduce some of it here, because it meant something to me, and because it’s a delight to read, and also because it captures something about what Canadian media culture was like during the late-90s. Topics run the gamut, from standards of journalistic objectivity to the perils of being misinterpreted, from Monsanto to Leonard Cohen, from Merlin to Spiderman.

 


Me: When are you afraid, if ever, that your questions will be misinterpreted (during an interview)?

Lewis: Well, let me start by saying that Counterspin is an unusual show. The purpose of the show is to have a host that is opinionated. The traditional idea of a host, especially the CBC idea of a host, is that [the host] doesn’t have an opinion. This is abandoned. The basic premise for this – and I’ve talked to [the head of CBC Newsworld] about it explicitly – is that the idea of people not having a point of view is so clearly bullshit.

Me (laughing): Yeah.

Lewis: It’s just not particularly helpful in doing journalism, and especially during debate. Although a lot of viewers have a connection to hosts that don’t take sides, and that’s what a lot of the audience expects. For a lot of things, that is certainly appropriate. But for a debate show, especially when you see people hosting debates, and they clearly have a point of view but are inhibited by tradition from expressing it… it always comes out in some way. Like, they ask much tougher questions to one side than the other, or cut people off, and are noticeably impatient with the people they disagree with. Those passive aggressive ways that hosts convey their point of view I think are not nearly as helpful as a host that says, “Here’s where I’m coming from, where are you coming from?” Because there’s a key difference between being ‘neutral’ and being fair. I’m certainly not neutral, but that doesn’t stop me from being fair, in fact I think it helps me to be fair.

Me: So, by coming right out and saying “this is what I think, what do you think”, you’re hoping that any misunderstandings will be clarified right on the spot?

Lewis: That’s the hope. However, to finally answer your question: I don’t fear of getting misinterpreted, but I get misinterpreted anyway. There have been a couple of delicious examples. For instance, I’ve been trying to do a show all year on bioengineering of foods, and genetic modification of foods, because it is a topic that I am really disturbed by. I think it’s completely driven by multinational corporations like Monsanto, who are manipulating their vast control over the food industry in, I think, really scary ways.

Me: I’ve not heard of that company. What are they?

Lewis: Monsanto… It started as a pharmaceutical company and moved into the food business. If you search around the web on the topic of genetically modified foods you’ll find that there is a huge international movement against the genetic engineering of various foods that is being spearheaded by companies in America and Canada, but is being fiercely resisted by people in Europe. And even sort of shadowier is a company called “Cargill”, which is fundamentally a grain transportation company. But these companies are so big and sophisticated that they sell farmers seed and fertilizer and buy back their crops, transport them, and move grain and food around the world in such a way to try to change the diet of whole continents. To make Asia, for instance, more dependant on wheat than it is on rice, so that they’d have to import instead of depend on their own basic staples.

Anyway. They do things like make a new genetically modified seed that is resistant to the pesticides that they sell. So you can spray your crops with this incredibly intense pesticide called “Roundup”. But the seeds that you planted, which you bought from the same company that you buy the pesticides from, are the only things within miles that are resistant to this particular chemical.

Me: Sounds like a universal “Monopoly” game.

Lewis: It is getting close to that. And it is all engineered for the company’s profit over the actual well being of the farmers and the population. Because, of course, nobody knows what the long-term health effects could be of screwing with the genetic makeup of food.
Anyway, this is a story that has really been obsessing me for a long time; I really wanted to do a debate about it. But, of course, those companies have no interest in doing debates! They have no interest in facing their foes; like the Council of Canadians or the groups that are concerned about food safety. So, occasionally, they’ll do a one-on-one interview in the news with one reporter where they know that they’ll get their little 30-second sound byte defending their practices. They never actually have to face their enemies. So, we just couldn’t find anyone from any of these companies or any of the industry groups who would represent and lobby for the value of genetically modifying food. So finally we found this one guy who was a farmer who said he was really positive about these things like the hormone that they put in cows that makes them make more milk, and the genetically modified seeds and stuff. So we had him on the show, and we had a couple of people who were really alarmed about the trend. I did my intro where I was just bashing the idea.

But it turns out this farmer was a very sour and resentful person. So he didn’t say much, and was visibly pissed off at these guys who were railing about genetically modified food. So I sort of had to balance out the debate by giving him as much time as I could, and asking him questions by trying to interpret his responses back to the other side, to keep some semblance of a fair debate. I was trying to make sure that both sides got their fair share of airtime, even though I clearly disagreed with his.

Someone wrote us an email saying, “I’m really disgusted and scared by this genetically modified food thing, and was really disturbed to see that your host completely agreed with and defended the farmer who was defending it, and didn’t give as much time to the other side, and it was such a biased debate.”

I was completely misinterpreted in my attempts to be fair, and in the human situation, defending this guy who was doing such a poor job of defending his side.

The same day, we got an email from an environmental activist who said, “I can’t believe that you said that guy was a farmer! He gets all his money from Monsanto. He’s nothing but a mouthpiece for the company, and you completely bought their spin by bringing in a, quote, “typical farmer”. He’s paid to have this opinion. You were hoodwinked.” So, sometimes I get accidentally misinterpreted, but I don’t mind. I have an opportunity to say what I think, and that’s my role on the show.

Me: On The New Music, did you have that kind of freedom?

Lewis: Well… In some ways more and some ways less. The dilemmas associated with doing Music Journalism are a lot heavier than doing a debate show. In music journalism, whether you like it or not, you just end up helping the publicity mill. You don’t get a chance to go to New Orleans just because Much Music feels like spending 5000 dollars to send you. You go to New Orleans because Universal records wants to promote the new Lenny Kravitz album, and they’ve got Lenny Kravitz doing interviews in New Orleans. So whenever we traveled on record company’s money, we always made a point of doing something else in the city that we went to, trying to uncover some genuinely new music.

Me : Kinda like TV Frames?

Lewis: Kinda like TV Frames.

Me: I thought that was a really cool show

Lewis : That was the coolest gig ever, and if Jennifer Morton hadn’t cornered the market on that, that’s exactly what I would’ve wanted to do. Just traveling around doing “slice of life” journalism in different places around the world. But there was a show that didn’t have a very corporate reason for existing. It wasn’t a part of the game of juggling the demands of various record companies and the commercial priorities of Much Music. So it never had that much commercial appeal. And it had absolutely no constraints on it, except where she wanted to go and what she wanted to do.

Me: After watching TV Frames: Beirut, and hearing about riots or bombings in that part of the world, I would get depressed…

Lewis: Yeah. I think that did what television does best, which is make you feel like you’ve been there. But yeah, music journalism did have a lot of constraints, because I have a determinately anti-corporate point of view. And that was frustrating.

Me: When was the first moment that you ever considered going into journalism as a career?

Lewis: Well, I think that, like a lot of people in the field of journalism, I didn’t fantasize as a kid about being a journalist. I absolutely fell into it.

Me: So, you didn’t look at Clark Kent and go, “Oooooh! I want to be him!”

Lewis: No, definitely not! I was all Spiderman over Superman, anyway.

I went for a trip after university in a typical trip around the world, and I found myself in Nepal for a few months… It’s a very beautiful country which in the south is filled with tropical valleys, which in the north turn into the Himalayas, which are the highest mountains in the world. A lot of people go trekking into the mountains there.

And I had an accident there. While I was trekking around in the mountains I had a really bad fall, precipitated exclusively by my own stupidity and youthful arrogance. It took me like a week to get home. I had smashed my leg to smithereens and I was very lucky not to die in a number of different ways. When I got home and learned to walk again, I decided that I wanted to go back to school, but I didn’t want to do purely abstract stuff. Like Literature and Philosophy, my undergrads. I thought, “Well, I wanna go back to school, but I want to take something that has practical application.” I applied to a bunch of journalism schools. And while I was waiting for the six months to decide whether or not I was gonna get in, I thought, “Rather than going to grad school, this is probably something I can learn on the job.” So I got out and started working my connections to try to get a job in journalism. Basically, because I had to move back home to my parents house, which was bugging the shit out of me! And I was learning to walk again, which took me, like, six months, and I was just going out of my mind. I needed money! And I needed to get out of the house. So I ended up getting a volunteer spot at CityTV, and one of their news writers just happened to quit five minutes after I walked in the door, and I got a chance at the job and I got it. It was just a combination of good luck, good timing —

Me : — Fate –?

Lewis : — and knowing somebody, which is exactly the way you always end up getting a job. And from there, one thing led to another, and eventually I was a news writer working on weekends.

And I had an idea. I always thought that “Speakers Corner” was such a cool thing. And I had an idea that I wanted to do political satire with my guitar. I told the news director that I wanted to be a kind of rock-n-roll Nancy White; she used to do political satire on CBC radio, but it was mostly piano, with a kind of chanteuse style. So I kind of wanted to do that with Rock-and-roll sensibilities. So I told him and he just laughed. Because television producers are so stupid. They don’t understand anything until they can see it on tape… You spin a great idea, and they look at you blankly.

Me (sotto voce): “Well, that’s really not good for our target market!”

Lewis : Right! Exactly. If you bring something in that is obviously cool and appealing, and just show it to them, sometimes they get it.

So that kinda worked for me. I dropped into Speakers Corner, threw in my loonie, and I’d written a couple of songs — making sure that they were exactly one minute long. And I went down into the basement of the station and got one of the techies to give me the tape that I had just recorded on. I showed it to the news director and he laughed, and put them on Breakfast Television.

So I was writing two songs a week. And I had all this material, because of course (as a news writer) I was totally immersed in the news! They were playing them on Breakfast Television in the mornings, and I went in and demanded that I not spend my own loonies. He laughed and started paying me about 25 bucks a song. So I was making 50 bucks a week with my music, along with being a news writer. And I was pretty thrilled with that.

And then they suggested that I try being a reporter, and I just laughed at them, because I thought, “Give up this freedom for the pretense of objectivity? Not in your life! Forget it! What a drag! I’ve got everything right now!” About six months later, the news director pulled me into his office again and said, “Hey, nobody’s ever turned down a reporter audition before. Are you sure you know what you’re doing?” And I thought about that, and — I wasn’t sure that I knew what I was doing (laugh).

Then I did the audition, they put me on the air, and I was a news reporter for a few years.

Me: Then you moved onto The New Music, and now — Counterspin!

Lewis: Right. Ironically, I did have to do that neutral “one the one hand, on the other hand” kind of journalism for a few years. But eventually, I had sort of re-earned the right to be a full human being on camera instead of being a kind of robot. Y’know — it worked out really well for me.

Me: We appreciate it, too.

Lewis: (laughing) Thanks a lot!

Me: Who is the one person, dead or alive, that you would like / have liked to interview?

Lewis : Tom Waits… He’s kind of the reptilian and surreal inverted lounge style. He started in the late seventies. The reason I’d want to interview him is — Have you ever read the book, “The Sword and the Stone“?

Me: Nope.

Lewis: It’s a version of the Arthurian legend by a man named TH White. It’s a book I read as a kid, and it blew my mind. It basically told the story of Arthur, somewhat from Merlin’s point of view. Or maybe Merlin the Magician was just a character in the book. I think it was the first Arthurian tale that described in detail the legendary belief that Merlin lived his life backwards — that he was born as an old man… [and] as he goes along until he sort of disappears into infancy.

Tom Waits’s first album was called Closing Time in the seventies, and his first album was like, a collection of truck driver ballads. Totally straight, and very conventional AM radio songwriting. And his albums have gotten weirder and weirder as he’s aged. Which is the absolute opposite of people who do their most avant-garde work at the beginning of their career, as they get more and more commercial or more and more “safe”. He seemed to be going in the complete opposite direction than most artists. His albums were more and more bizarre as he went on. I found that so fascinating! His interviews are totally insane. He never answers a question with a straight answer. He tells long surreal stories that have nothing to do with what you just asked.

Most people try to make him make sense, and I just know that if you just went with it, just got totally disjunctive and surreal with him, it could turn into something amazing.

Me : Leonard Cohen seemed kinda like that.

Lewis: (snickering) Well — yeah. he definitely goes where he wants to with an answer! And, in a way, that’s true. I remember one time during my interview I was trying to push him on the connection in his work on the topic of sex an religion. For so many years, he would write about sex as if it were a religion. They were so mixed up.

So, when I asked him that question, he sort of flattered me and complimented me and said, “That’s a very perceptive way of putting it”, and then sort of went on to something else about religion.

I was like, “Okay, that was a skillful kind of dodge. Answer the question! Do you see sex as a kind of religion?” And he said, “Well, you know, I don’t like talking about matters that I consider private, but since you’re pressing me on this in a very dignified and decent way, I’ll say –” And then the cameraman said, “Shit,” as the tape runs out. And he says, “Well! We’ll save that for another time!” The moment slipped away.

Me : (laughing) Jeez.

Lewis : I kind of wonder whether or not he had a magical power over the technology.

[At this point there is a gap in the record, where I double-check that my own tape recorder is operating properly.]

Me: I’ve heard that some journalists try to develop a rapport with their subjects before they start the interview. What kinds of pre-interview rituals do you go through, if any?

Lewis : [O]n Counterspin, because it is a debate show and we encourage people to really argue, we discourage people from the sort of “mock outrage” and acting all controversial that you see on a lot of talk shows.

Me: Or the debate for Ontario premier.

Lewis : Or for leaders debates, exactly. What I try to do is, I try to establish the tone of the show in the few minutes that I have before the show when we can all talk to each other. And because we are a national show we almost always have someone on satellite in other cities. Sometimes I only have about a minute and a half, or two, when all the satellite technicalities have been worked out, and I can actually get all the guests talking to each other. So, I have a little warm-up ritual that I do with them. I get those guests on satellite to reach behind them and take one of those fake looking books of the shelf and throw it at the camera. And, sometimes they think I’m serious, and then they realize that I’m joking, and then they realize that there’s a sense of humor about television itself.

Then, I remind them that the way that the show usually works is that I ask the first question and people sort of go around in turn. Gradually, as a real human conversation starts to break out, and people forget they are on television because they are so engaged in the subject, we will be interrupted by a commercial. Even though I warn them about it at the beginning of the show, it absolutely happens every single night.

Me : I haven’t noticed this: Is Counterspin live?

Lewis : Absolutely live, all the time. It adds an extra kind of energy.

Me : That pre-show ritual must work pretty well, because — I watched one episode, and noticed that everyone was laughing. They all represented different parties, and were in a roundtable discussion, but they were all joking with each other. It was really something.

Lewis : There’s a value in trying to encourage people not to take themselves too seriously, and recognize where they relate as well as where they differ. I think that serves the conversation well, because people are more honest. They’re not so self-important. And I really like that.

Me : Me too. I think a lot of people do.

— What is the worst part of your job?

Lewis : The worst part of my job is the relentlessness. Doing four nights a week live for forty weeks is a tremendous grind. Because the mandate of our show is to react to whatever the breaking story of the day is, we frequently throw out all the work that we’ve put into a show at four o’clock in the afternoon because something else is exploding, and we just switch topics on the fly. The level of stress and intensity certainly dwarfs anything that I’ve ever experienced before.

AND the fact that it is live. AND the fact that it is a debate show, so it’s not enough just to get people who are smart and have a few good things to say, to represent the various points of view on an issue. AND finding those people across the country. AND trying to have some gender representation, some cultural representation, geographic representation, so it isnít always just a bunch of old white guys. It’s a tremendous amount to accomplish every single day, so I don’t think I can stand this pace for very long. I’m certainly learning a tremendous amount on every conceivable subject!

Me : What is the best part of your job?

Lewis : The best part of my job is the relentlessness. The momentum. The fact that I’m absolutely immersed in the news all the time, constantly having to learn about, and keep up on, all of the debates going on in our culture simultaneously. Not since university have I been so intellectually challenged. And there is a total high in being immersed in so much information.

The fact that it is every day really gives you the opportunity to have the debates that people are actually having around the dinner tables, and in bars, and in restaurants, while they are actually happening in response to the day’s news; to not have to wait until your weekly slot comes along to discuss something that people have already stop talking about. To really be in the flow of this new saturated society, and not to be just giving the news, but to be having the underlying arguments about the core moral, intellectual and philosophical issues that are underneath the news stories. That is incredibly exciting.
But itís a double-edged sword; very exhausting!

Me : Last question! Do you ever think that you’ll stray into producing shows full-time, and if so, why?

Lewis : Well — ironically, I’ve been doing that all along. Partly because of the unique culture of CityTV, which I think is part “rampant exploitation” and part “incredible creative opportunity”. Everybody does everything at City. So, in more traditional broadcasting, the process of doing a finished story will be divided up among many different people. One person who does research, one person who conceives the story and established lines of questioning and supervises the edit, one person who takes all that information into an interview or series of interviews and puts their own spin on it (but essentially only asks questions that someone has already though of), one person who thinks only the visual aspects of the program. At City, you have one camera operator who also does the lighting and the audio, you have one reporter who is also the researcher, the producer, the person who supervises the edits, and the person who controls the content and style of a piece. You have to do six jobs at once. I’ve always produced everything that I did, from The New Music stories to Too Much for Much political coverage, I always produced everything that I was involved in. In the political stuff, I had a partner in crime named Matt Zimble; we sort of dreamed up everything together. We would write the bits, supervise the edits, and just did everything ourselves.

Me : Was he involved in the “Smokes and Booze” special?

Lewis : No, that one was all mine. That was a labour of love.

No man is a one-man-band, really. The original kernel of the idea for the Smokes and Booze special I came up with with my wife who is a writer [Naomi Klein], who is interested in sponsorship and is writing a book about it. I should be careful about taking too much credit!

As producing goes, I’ve always produced everything I’ve been involved in, and on Counterspin, a daily human debate show, there’s just no way that anyone could book four guests a night as well as host the show. So now I have a researcher, four chase producers, and a couple of other producers who supervise the show. But, I still regularly suggest topics, regularly suggest guests, I’m intimately involved in the booking of the show, the devising of the questions, and every part of the show, up until and including whatever happens on air when we just wing it.

So, producing to me is by far the more important element in television. I think a lot of people assume that on air people are just the faces who read a script, and a lot of them are. But to me, the actual power and creativity in television is all about having an idea for a television show, having an idea in your head and being able to realize that on the screen, days or weeks or months later. Having a sort of creative vision and being able to articulate that, is the real fun and constructive part of television; and that is in the producing. So hosting it is kind of an extra bonus and an extra burden. But frequently because it is such an on-air driven culture, if you are a host or on-air person who truly takes an active interest in the content, people are always amazed that you would want to be that involved. They are always very open to it, because it makes for a much better show; being totally immersed in the show, not just putting it on like a suit jacket.

So I sort of used the on-air thing in order to have even more input into any given story.
Itís kind of tempting to just be a producer. Iíve never done it, but I imagine if I could just concentrate on the show, and not be all stressed out about the performance, not having to go on air at the end of this crazy process, maybe it would be liberating.

…[But] For better or worse, I have evolved into this sort of strange animal of host/producer. I just don’t know anything else.

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Divergent borderline cases

I’ve been thinking about a previous post, on borderline law, and thought maybe it would be worth elaborating a little on the remarks there, just in case they were too perfunctory.

Almost every core theoretical disagreement in philosophy of law (and, probably, philosophy) comes down to arguments over something kind of like focal meaning. (“A Gettier case either is, or is not, a case of knowledge qua knowledge; let’s fight about it”, etc.) Or, if the idea of focal meaning is too metaphysics-y — because, Aristotle thought they had to do with natural kinds, and, (mumble mumble, digression digression) — we can instead say that theoretical disagreements about major philosophical concepts are about graded categories and exemplars.

Graded conceptual analysis has at least two benefits. First, it captures the sense in which it is possible for two people to actually disagree about the same concept without radically misunderstanding each other. That is, it disarms Dworkin’s semantic sting. Second, relatedly, it encourages a kind of modesty in one’s critical ambitions, as borderline cases are permitted in discourse but regarded as especially vulnerable to subjective interpretation.

But there are some downsides to doing graded conceptual analysis. For one thing, a lot of the evaluative-critical import gets lost. So, e.g., when you say, “Kafkan law is a borderline case of law”, the implied criticism pales in comparison to a claim like “Kafkan law is not actually law”. Disputes over the former claim, pro vs. con, look to be trivial. Moreover, we cannot rescue that critical import by definitely asserting that some token case is definitely a near-miss, or a pseudo-legal system. For a borderline case is one that is, by its nature, either a near-miss or a peripheral case, and we can’t tell which. If we say, “Kafkan law is a near-miss case of law”, we abandon graded categorization, along with all the salutary features of that sort of conceptual analysis.

The way of bringing the critical sting back into talk about graded concepts requires us to talk about their directionality. Kafkan law is not just a borderline case — it is a borderline case that is (in some suitable sense) drifting away from the central cases of law considered as tacit or explicit verdicts of institutional sources. Put in this way, we remain neutral on the question of whether or not para-legal systems, considered as a class, actually have (or can be forseen to continue to have) the status of being actually legal systems. The worry is localized on the token cases that are at risk of drifting beyond para-legality into pseudo-legality — they may or may not actually be legal systems now, but they are destined to lose that status of law soon enough.

And a reasonable person might worry that many contemporary political-legal systems are headed in that direction, into the twilight of law (to borrow John Gardner’s evocative phrase). But if the argument aims to tell us what law actually is, then the weight of that argument has (apparently) got to go beyond talking about either the endurance or subversion of secondary rules of the legal system. Or, at any rate, it has got to go farther than to say that any social system which has defective rules of recognition encoded in the practices of the core of the judiciary.

(So, e.g., a disquieting feature of America’s drift from the central cases of legality, it seems to me, is the loss of a sense of what Jules Coleman called identification rules: it seems to me that the loss of both identification rules and secondary rules would be sufficient to make a legal system a divergent case. Though I shall have to leave an argument for that for another post.)

The three faces of philosophy

[Adapted from a post initially published at Talking Philosophy Magazine blog in 2014.]

Philosophy is a big tent kind of thing. There is a world of difference between being philosophical,  being a proper philosopher, and being a professional philosopher. The first is an action; the second, a kind of vocation; and the third, a description of an academic job.

As far as I can tell, the practice of doing philosophy is intimately related to the state of being philosophical.  To do philosophy is to engage in the rational study of some characteristically general subjects (e.g., morality, existence, art, reasoning), for the purpose of increasing understanding and reducing confusion. In the ideal case, being philosophical involves manifesting certain virtues: you must have the right intentions (insightful belief, humble commitments), and you must proceed using a reflective skill-set (rationality in thought, cooperation in conversation). The bare requirement for being philosophical – even when you do it badly – is that you should be able to manifest at least some of right intentions and at least some of the right ways.

It is possible to do philosophy without being a proper philosopher or a professional philosopher. This is unusual, as these things go; to see that, compare with engineering. The requirements for doing actual philosophy are quite a bit lower than the requirements for doing actual engineering. To do philosophy you have to approach some of the general questions while behaving philosophically; to do engineering, you have to be a proper engineer. So, it is seldom claimed that Meno was a proper philosopher, but we won’t hesitate to say that Meno was seriously doing philosophy with Socrates. In contrast, professional engineers would probably not say that a child playing with Lego has really seriously done some engineering. (Not that there’s anything wrong with Lego. If it came to that, I’d be more inclined to say there’s something wrong with engineers.)

And yet, in the vocation of philosophy, there are unusually high barriers to success. A person who does philosophy in a middling way is not a proper philosopher; if you can describe her philosophizing in a cheap metaphor, it is a sign that things may have fallen short of the mark. Proper philosophers do productive work that is worthy of attention, however you would like to cash that out.

Moreover, I would argue that the merits of a work in professional philosophy are only obliquely defined in terms of their vocational traits. Professional philosophers are judged according to various things, including their scholarly competence, their intelligence, their papers, peers, prudence, and pedigree. By and large, professional philosophers are not directly tested on whether or not they have philosophical acumen. Indeed, it is rarely stated outright what ‘being philosophical’ amounts to, uneasily marked by opaque approbative terms (which, following Amy Olberding, we might dub ‘top-notchitude’). When you ask professional philosophers to articulate their conceptions of good philosophy, it is sometimes asserted that the professional desiderata overlap substantially with the philosophical traits. And I think there is something to that. But at their worst, professionals will float blissfully along from one encounter to the next operating on the assumption that whatever they are up to is all aces, and good riddance to the rest of the profession. (Consider that in certain areas, professional citation practices are remarkably ad hoc; and consider that most articles are cited only once or less even when published). Beneath the wandering skies of top-notchitude, we have the shifting sands of the documentary record which ostensibly makes up the bulk of this field’s productive output. So there is at least some room for someone who is committed to philosophy as a vocation to look at the profession with a skeptical eye.

But despite the fact that philosophy can be discussed in any of these modes – as proper (the vocation), as professional (the job description), and as philosophizing (the act) – it is instructive to notice that they share certain commonalities. At one end of the spectrum, proper philosophers should be seen to hold the four virtues; and at the other end, the worst professional philosophy is evaluated in terms of tropes that imply some one or more of these virtues are out of sync. Whatever else we think about philosophy and its fate, we should not be lulled into an identity crisis. I say, again, that philosophy is best understood as the kind of projects and habits it encourages and cultivates in us, and which makes us better directed towards making sense of things. This is something to hold onto, something worth protecting, come what may.

Les Green on borderline law

Here’s Les Green on the importance of unwritten constitutions.

The main difficulty I have with his commentary is this. I can imagine a critic — Green’s dialectical opposite, Maur Red — saying, “Look, okay, so the US is a borderline case of law. Who cares? It’s still law.” If asked to clarify, Red could say: “What’s at stake here is not whether US law is a form of law, but whether or not it is an exemplar, an instance of the focal meaning of law. These are different issues.

As I imagine the conversation going, I think Red could then chastize Green for overspeaking when he claims that this entails that US law is not “actually” law, because nothing at all follows from concluding that US law is a borderline case of law. For that is apparently no more defensible than saying, e.g., that penguins are not really birds, given that penguins are a borderline case of birds, or that the half-competent doctor is not really a doctor, given that the doctor qua doctor makes no errors.

What Green should say, instead, is that US law is on the verge of being a near-miss case of law, which is a special kind of borderline case. And Red might concede that that would be worrisome. But then, he might conclude, you cannot infer that something is a near-miss case of law just because you deny that it has the qualities of an exemplar case, any more than you can infer “penguins are not birds” from “penguins are not robins or bluejays (etc.)” Only some borderline cases are near-misses. Others are just odd, ironic, or unexpected.

Premier Ford and the rule of law

Recently, a constitutional challenge arose in the province of Ontario, as the newly elected Conservative Premier sought to pass a Bill to interfere with Toronto municipal elections mid-cycle to settle a few scores in his old stomping grounds. Problems arose when the judiciary told him he was violating the Charter. Tensions ratcheted up when he invoked the little-used notwithstanding clause — section 33 — in order to overcome the decision of the Court, resulting in widespread dissent from legal professionals and from the official opposition. Just recently, Ford’s party won an appeal, as a stay was placed on the Court verdict that blocked the Bill.

For now, let’s put aside the merits of the stay or the claimed violation of the Charter. Instead, zoom in on Ford’s reason for opting out of the Canadian constitution. Focus on the rationale: “unelected judges”, filed under apparent threats to democracy. Pin this little offering to a corkboard. Put a light on it. Study under glass.

The invocation of section 33 was argued on ostensibly democratic grounds. Compare specimen to encyclopedia of modern conservative thought. The pattern of argumentation that could have been reminiscent of Jeremy Waldron’s majoritarianism, if done thoughtfully. Admittedly, it’s a weird species of argument to us, we the complacent and diffident Canadians. But the world is weird. That’s why we keep reference manuals. Gotta keep an index of all the weirds.

Now turn back to the corkboard. The actual arguments presented were a mixture of Pravda and Powerpoint. Mutant variation. Pull out the red pen.

**

  1. At bottom, a nation of laws is a nation that makes sense, whose stability can be taken for granted. We can only get the first glimmer of a sense of obligation to such institutions when we see their rules as a going concern. The stability of law is primarily achieved through judicial review, an institution where governmental rules are deliberately and carefully interpreted and maintained. The judges are curators and stewards.
  2. When we talk about our favorite form of government— democratic, monarchical, or whatever— we are tacitly making an assumption that the rulers are not being systematically misled. The sovereign’s affirmation of counsel implies they have *informed consent*. So, if a monarch is constantly fooled by a Rasputin, then it is not strictly speaking a monarchy. Similarly, if a population is fed on a diet of lies, then strictly speaking we cannot say there is a democracy. Every form of government depends on faithful expertise.

So, a democratic nation of laws presupposes judicial review in two ways. First, because judicial review produces stability that makes it possible to talk about true and false claims of legality. Second, because it provides people with informed consent to past and future rules. You can criticize or condemn the operations of the courts for all sorts of reasons. But complaining they are not elected, is not a good reason. Quite the opposite: by challenging them, you undermine democracy.

Blogroll

Here are some of the blogs I follow and enjoy:

  • Daily Academic Freedom – Shannon Dea’s semi-updated blogging about academic freedom in Canada and beyond.
  • Understanding Society – Daniel Little posts regularly about the philosophy of the social sciences. While it is generally more expository than creative, I find his blogging is relentlessly useful.
  • Department of Deviance – I don’t know Amy Olberding personally, but she comes across as perfectly funny, smart, and kind.
  • Lawfare – law blawg, professional and topical.
  • Crooked Timber — though I’m mainly a fan of read Holbo & Waring, tbh.
  • Butterflies and Wheels — Ophelia Benson is controversial and curmudgeonly, but principled. I like reading her hot takes even though it’s toss-up whether I’ll agree with her on any given thing.
  • Restricted Data: the Nuclear Secrecy Blog — by Alex Wellerstein, author of infamous NukeMap.
  • Semper Viridis — Les Green’s blog; I’m always interested in what he has to say, about legal philosophy and other matters.

Solum’s mixed originalism

Since earlier this year Lawrence Solum testified before the Senate, now is a good time to read up on his work on constitutional originalism.

Solum (2008, “Semantic Originalism”, SSRN) argues that semantic originalism depends on the ‘clause meaning thesis’. This view states that the semantic content of the constitution is given by its conventional semantics and its pragmatics (context, division of linguistic labor, implication, and stipulations). The conventional semantics is established by its original public meaning (what he calls the ‘fixation thesis’).

The puzzle, for me, is in justifying the label of “semantic originalism”. Why semantic?

Solum makes it clear at the outset that he distinguishes between the semantic, applicative, and teleological senses of meaning, and stipulates that he’s only doing the semantic thing. (p.2-3) And that is fine and well. But then he cashes out the ostensibly semantic project partly in terms of applicative content: e.g., implicatures and stipulations. (p. 5; 54-58) And then he rejects competitor views (like Ronald Dworkin’s interpretivism) for smuggling teleology, consequences, and applications into an ostensibly semantic theory. (p.83)

Obviously this cannot work. Instead, if Solum were articulating a coherent view, he should not be calling his own originalist view a ‘semantic theory’. Perhaps he should be calling it a mixed theory of literal meaning, perhaps of an austere kind. After all, the semantics/pragmatics boundary is only of significance to a particular kind of analytic philosopher who is more obsessed with compositionality. It isn’t interesting to everyone for all purposes, and maybe isn’t even useful to everyone who cares about literal meaning. But then that would require confronting a central dogma in the philosophy of language.

Probably, the apparent incoherence of the paper is mitigated by the fact that Solum’s “Semantic Originalism” is a draft on SSRN. It’s just a draft, and goodness knows I’ve had my share of bad drafts. But it’s still a shame. I prefer long-form articles, where theorists can spell out the authoritative vision in detail, and that breadth of vision is often sacrificed in published works owing to editorial considerations. And the paper appears to be otherwise considerate, nicely written, and well-informed. It is just hard for me to reserve my disappointment in finding out that the entire programme is a house built on sand.

Quick note on Donald Black

Reading “The behavior of law” by Donald Black, who asserts in Chapter 1 that “Law varies inversely with other [non-governmental] social control”, meaning negatively correlates, and in chapter 2 that “Law varies directly with resource stratification,” meaning positively correlates.

Put those two things together, and I am not sure I have learned anything at all about how law relates to stratification.

Identity politics and representation

In this article, Appiah suggests that the claims of representation that underlie identity politics (“I as a so-and-so say that…”) imply something like “as an (x) am in a position to speak for random person (a), who is also an (x)”. In other words, political representation means ‘speaking for’. On this view, e.g., if I claim to speak as a heterosexual man when I offer some witticism or piece of prosaic advice (“As a man, I don’t care about gender-labeling washrooms”), then I am speaking for men. Meaning, I guess, that I’m saying the sort of thing that other men would also say.

I’m sure some people do talk and reason in that way, but I also think it’s just one way of speaking among others. So, e.g., I think of these claims as usually about how I and (a) both have equal though partial authorship rights over the experiential meaning of (x), as opposed to person (b) who is not an (x). It involves speaking for your role, not necessarily speaking for others who also have that role. So, to use the same example as above: sometimes, if I say, “As a man, I don’t care about gender-labeling washrooms”, I am not speaking for men, but speaking in my role as a man, which may or may not generalize.