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“I disagree with what you say, and I will not defend to the death your right to say it”: an argument for restricting freedom of speech

“If you offered to let me off this time on condition I am not any longer to speak my mind…I should say to you, ‘Men of Athens, I shall obey the Gods rather than you'” (Socrates, 399 B.C.)

The concept of freedom of speech has exercised the minds of philosophers, politicians, lawyers and laymen alike, for millenia – from a legal perspective, it has been enshrined in, inter alia, the Magna Carta, the Bill of Rights, the United States Constitution and the European Convention of Human Rights. Similarly, the right to speak freely enjoys a rich philosophical tradition; advocated, in particular, by members of the Liberal Enlightenment movement, such as, notably, John Stuart Mill. For Mill, and his philosophical acolytes, freedom of speech constituted a positively virtuous, and ethically pure, social force for good. More recently, commentators have identified – for example, during the “Arab Spring” – the potency of free speech as a prime agent of social change. In short, Western society has concluded favourably on freedom of speech, as a concept.

Indeed, the arguments that have underpinned the adoption of free speech are intellectually coherent – not only do societies that embrace free speech benefit from, in the Hegelian sense, the spread and development of ideas, but they possess the opportunity to both expose subversive ideas to scrutiny, and to reaffirm the concepts and beliefs that are cherished.

Nonetheless, the social and political status quo does not recognise freedom of speech as an inviolate doctrine. On the whole, Western states reflect the idea that this particular freedom ought to be curbed and, importantly, subjected to interference from the state. The logic behind restricting free speech was advanced, and popularised, by, inter alia, the work of Joel Feinberg in the mid-1980s. In short, Feinberg justified limiting free speech on the grounds that being offended represents a particular type of identifiable harm. His dogma – known as the “offence principle” – is, of course, articulate and persuasive; offensive words certainly have the capacity to cause definable, and, in some cases, corrosive, harm.

In a seemingly unconscious symmetry with the “offence principle”, the British legal system has reflected the theory that words are capable of constituting punishable harm. For instance, the common law has recognised – post R v Ireland – that words causing psychiatric injury may represent harm for the purposes of the Offences Against the Persons Act 1864. More recently, a labyrinthine network of legislation, designed to combat the proliferation of offensive words and communications, has emerged. Most notably – and due, no doubt, to the high profile “Twitter Joke Trial” and the prosecution of so-called internet “trolls” – Section 127 of the Communications Act 2003 has demanded considerable public attention. However, a variety of separate statutes have also been constructed, and employed, to criminalise the dissemination of offensive speech. As a consequence, the dilemma of reconciling free speech with the omnipresence of social media among an increasingly communicative society, has been thrust firmly into the public forum.

Some commentators – both in the media, and within the public – have argued for an uncompromising approach to free speech; an “all-or-nothing”, inflexible approach that renounces limitations or intrusion from the state. Although its’ proponents appear to be somewhat politically heterogeneous, their vision is a thoroughly libertarian perspective that, essentially, seeks to fashion a free market of words. In principle, their message appeals to one’s common sense – just as the “invisible hand” of a free-market economy secures the efficient allocation of resources and wealth, so should an undiluted market of language deliver the proper apportionment of ideas and theories. In reality, however, relegating important institutions – such as speech – to the machinery of the markets would be somewhat dangerous. Principally, it would ignore the fact that society, as a whole, has a significant investment in the enduring dominance of certain cultural and moral ideas; furthermore, it is also unlikely that a pure free market of vocabulary could actually function, given the disproportionate communicative advantage that certain institutions and individuals possess within society. Indeed, we generally accept that the state has a role to play in the proper administration of the market economy, why should the position be any different within the market of speech?

Another argument for an unfettered concept of free speech hinges on the undesirability of a right “not to be offended”. To enshrine such a right, it is argued, is akin to ushering a culture of censoriousness and to create an “industry” of outrage. Of course, the censorship and criminalisation of certain words would undeniably inhibit progress and, similarly, we can safely assume manufactured outrage to be anathema to the features of a rational and honest society. However, this argument is reductive – placing limitations on free speech does not necessarily, or by right, lead to the censorship of meritorious ideas. Neither does restricting free speech incentivise the production of synthetic outrage, per se. The answer is, surely, not to do away with restrictions entirely, but to ensure that those refereeing speech (i.e. the state) do so in a responsible and morally-robust manner.

However, the principal, and critical, flaw in the theory of unadulterated free speech is that it entirely ignores the potentially harmful impact that words can deliver. There is, on a conceptual level, no real distinction between the effect of, on the one hand, words that cause mental distress, and actions leading to physical distress, on the other. In fact, in some cases, the mouth can be as – if not, more – destructive than the fist.  And, as such, there is no theoretical reason why one form of harm should be criminalised, and the other tolerated.

Of course, those sceptical of limiting the doctrine of free speech frequently mould their discourses around the practical disadvantages of the current system. Many criticisms of the existing order are not entirely without merit – however, the problematic features of this system are apparent on a micro-level, rather than a macro-level. In other words, the broad thrust of the framework that governs speech is fundamentally sound, but there are isolated, specific, areas in need of reform.

For instance, it is frequently argued that regulating “offensive” speech is fundamentally unworkable, or arbitrary, on the basis that determining which words are offensive involves a degree of subjectivity – what offends a certain personality or constitution may not elicit a reaction from another. This notwithstanding, subjectivity is hardly an alien concept within the criminal justice system. For instance, the law on self defence relies, albeit not wholly, on an element of subjectivity within the question of whether “reasonable” force is used, or not. Although the issue of “reasonableness” will, invariably, differ from one jury to the next, the law on self-defence is harmonious and workable. Indeed, the element of subjectivity embedded within the criminal legal system arguably justifies the continuing institution of the jury – we endow trust in our fellow citizens to determine questions of subjectivity in a manner that accords with the civic values of society. There is no practical or ideological reason why this trust should not be extended to the question of “offensive” words. Of course, the upshot of this rationale is that offences encompassing offensive language should be indictable-only.

Further, while arguments that stress the inherent, practical, problems associated with regulating the sheer volume of online speech are persuasive from a logistical angle, it would be morally-inchoate to institute the tolerance of offensive speech on these grounds. Principally, this methodology totally ignores the reality that criminal justice embodies more than a mere cost-benefit analysis – indeed, the criminal legal system recognises various offences that go, essentially, unpunished. For instance, a Central London police station will, in the main, not devote sufficient resources to the investigation of every instance of bicycle theft – our resources are, unfortunately, inabundant. Regardless, the logical response is not to tolerate the criminal act, but to enforce the law that relates to that act, wherever possible. We should reject the impulse to authorise offensive speech on identical grounds, and enforce the law to the best of our technological and budgetary abilities.

The current regime is far from perfect – there is certainly a debate to be held regarding the mens rea component to offences of language. In sum, it occurs to me that an offence should only be established if the author intends to cause offence. We should also be deliberating on the determination of guidelines, or criteria, for the definition of “offensive” speech – again, there are various areas of criminal law (such as, for example, the law on what constitutes an “unsafe” conviction) that utilise guidelines in order to import a sense of functionality and viability. And, finally, there is certainly a compelling argument that the requisite threshold for “offensive” speech should be elevated. Nonetheless, the general, abstract, direction in which the law on free speech is headed is the correct one – a humane and civilised society positively demands an intolerance of all forms of harm, be they physical or mental.

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In defence of George Galloway MP

“Let me tell you, I think that Julian Assange’s personal sexual behaviour is something sordid, disgusting, and I condemn it. But even taken at its worst, the allegations made against him by the two women…were true…they don’t constitute rape. At least not rape as anyone with any sense can possibly recognise it…Let’s take woman A. Woman A met Julian Assange, invited him back to her flat, gave him dinner, went to bed with him, had consensual sex with him. Claims that she woke up to him having sex with her again. This is something which can happen, you know. I mean not everybody needs to be asked prior to each insertion. Some people believe that when you to to bed with somebody, take off your clothes, and have sex with them and then fall asleep, you’re already in the sex game with them. It might be really bad manners not to have tapper her on the shoulder and said, ‘do you mind if I do it again?’. It might be really sordid and bad sexual etiquette, but whatever else it is, it is not rape or you bankrupt the term ‘rape’ of all meaning…’ (see here for video)

These are the words that will be associated with George Galloway MP for the rest of his life.

Prior to a few weeks ago, Mr. Galloway resembled something of a political ironman – having weathered, at various points, controversy, embarrassment and scandal, he won an unexpected landslide result at the Bradford West by-election of March 2012.In fact, in Bradford West, he annihilated the incumbent Labour Party, registering a massive 36% swing.

Today, he is a political nomad. The leader of his party (Respect), Salma Yaqoob, rebuked him in a visible and public manner, the magazine Holyrood terminated its relationship with him, while a raft of journalists and a mob of correspondents on Twitter have denounced him as a  misogynistic – and ignorant – dinosaur. The Respect Party candidate for the Manchester Central by-election has even stood down, in protest. In these circumstances, it is difficult to envisage the party retaining Bradford West in 2015.

The whole affair astounds me. Mr. Galloway is an elected Member of Parliament, who discussed an area of legislation that governs the United Kingdom. He was – essentially – exercising his democratic right to speak freely, about a topic that he clearly feels passionate about. Indeed, we should be glad not only that he is eager to broadcast his views on a public forum, but that legislative issues of this nature arouse a sense of enthusiasm within him – the political landscape is more attractive when it contains individuals who hold, and disseminate, their convictions.

The problem for Mr. Galloway was that his dialogue concerned the topic of rape. Rape now occupies a curious, and distinct, position in our public psyche, whereby all but the mainstream dogma is furiously chastised. In fact, I doubt whether it would be possible to have a rigorous or indiscriminate public debate on what constitutes rape, in the current climate. One must conform to the accepted tenets or – like Galloway – face denunciation.

That this state of affairs exists is entirely understandable. I suspect that it is due to the fact that rape victimisation is an exclusively feminist province – whether or not it is true, the overwhelming public perception is that women are far more likely to be the victim of rape than men. Furthermore, the act of rape  is associated with other intimidating concepts such as violation and helplessness. As such, women display an emotional attachment to the issue that men will struggle to understand. And, in this way, a gender imbalance will always stifle free and open debate on the issue.

This is a real shame – in the Mill-ian sense, our public discourse is weakened by the existence of taboo subjects that remain impervious to argument. Not only does debate expose incorrect and pernicious ideas (such as, arguably, Galloway’s), but it allow us to reinforce, and re-affirm, the principles and ideas that we possess and cherish. One might comfortably assume that the blueprint of human progress lies in our history of engagement in the rigorous, hegelian, trade of ideas.

In this instance, for reasons set out below, Mr. Galloway’s opinion was inconsistent with the law on rape. However, his views were no more legally incoherent than those who sought to denounce him. Much has been written on the issue of consent – as referenced above, Ms. Yaqoob stated that “rape occurs when a woman has not consented to sex”; a spokesman for Rape Crisis said that “Sex without consent is rape”; while Louise Mensch wrote that “rape is when a woman does not consent”.

These definitions are inaccurate. Pursuant to Section 1 the Sexual Offences Act 2003,

“(1) A person (A) commits an offence [of rape] if –

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.”

In this way, the definitions reproduced above comfortably delineate the actus reus of the offence (the penile penetration by the defendant of the vagina, anus or mouth of another person, who at the time does not consent to the penetration) but fail to take into account the mens rea of the offence (an absence of reasonable belief in consent).

This is more than a legalistic technicality – the offence of rape is not one of strict liability. The offender must satisfy both the actus reus and mens rea, of the offence, which means that consideration has to be given to the defendant’s mind. And, to his credit, Mr. Galloway’s analysis did focus on the defendant’s (in this case, Mr. Assange’s) mind. Whether intentionally or not, the entire thrust of his commentary dealt with the topic of mens rea.

Of course, as stated above, his appraisal on mens rea was, in fact, unconvincing. Per Section 1(2) SOA 2003, “Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents”. Without mentioning the case involving Mr. Assange (the case has, of course, not been to trial and the evidence is not in the public domain), it would be difficult to argue that Mr. Galloway’s contention that an unconscious sexual partner need not be asked prior to each “insertion” can be reconciled with this provision of the 2003 Act.

We have also been told by various commentators in recent weeks that “rape is rape is rape”– in essence, that there is an absolutism to rape. Last year, when the (now former) Lord Chancellor Ken Clarke challenged this mantra, and distinguished between “serious” rape and, on that occasion, “date rape”, he was roundly castigated. He was described as “odious”, while the Labour leader Ed Miliband called for him to be sacked. However, it is neither denigrating to victims, nor dilatory to the concept of rape to suggest that some types of offence are more heinous than others. This is especially relevant in sentencing policy, where – as is consistent with other offences – the Sentencing Guidelines require consideration of, inter alia, harm caused, the offender’s culpability, the nature of the activity and any aggravating or mitigating factors.

The political wound that Mr. Clarke suffered was not as serious as Mr. Galloway’s, but their injuries stemmed from the same source – a rigid, and unquestionable, perception of rape that has permeated the zeitgeist. There is no doubt that the offence itself represents a malicious blight on society; but, that does not mean we should not be able to discuss it.

 

 

 

 

 

 

 

 

The conclusions to be drawn from the Olympic Games

“When a man is tired of London, he is tired of life; for there is in London all that life can afford” (Samuel Johnson, quoted (September 20, 1777) in The Life of Samuel Johnson, LL.D. (1791) by James Boswell)

Johnson’s comment has never appeared so apposite – the City of London has co-ordinated a mesmerising festival of sport. From the consuming enthusiasm of the native Londoner, to the charming bombast of its’ mayor, and the elegant architecture of the Olympic Park, it has demonstrated its’ innate self-confidence and utter competence to the wider world.

The central cultural narrative appears to be that the Games represent a turning-point for British society – we have been told that they have acted as a “mirror” to society, reflecting the evolution of our nationhood into one that encompasses concepts such as tolerance and diversity. The success of our athletes has been heralded as evidence, simultaneously, for the virtue of unadulterated competition and the benefits of state funding. Similarly, athletes such as Mo Farah and Jessica Ennis have been advertised as the harbingers for the advantages of immigration. And, throughout the Games, a sense of uniformity emerged in the public psyche – a sense that, for one fortnight, we were united via sporting endeavour.

Indeed, it is difficult, almost inconceivable, to believe that, one year ago, the same city was – quite literally – ablaze, and gripped in the turmoil of riot.

The truth is – both the Games and the Riots are both accurate representations of modern London. There are, essentially, two London’s – on the one hand, the city accommodates an army of professionals and, on the other, a mass of outsiders who are thoroughly disconnected from the social and cultural zeitgeist. Because London has been – informally – carved into distinct zones, these groups rarely interact, notwithstanding the fact that they co-habit this dense city. Take, by way of example, the fact that Brixton was the recipient of substantial instability last summer, while – one mile away – the well-heeled inhabitants in Clapham High Street were left untouched.

It certainly seems unlikely that those in the dissident class were impressed or invigorated by the Games. The deeply-ingrained social problems that led to the Riots – generational employment and welfarism, the absence of parental or personal responsibility, and the erosion of community ties – will not have been reversed by a fortnight of sport, however well-executed it was. In this way, the first conclusion to draw from the Games is that they did not illuminate a modern, inclusive, conception of British-ness. They certainly did act as an extremely public forum for the appreciation of diversity, but it would be misleading and naive to assume that all of British society was either affected by the Games or – indeed – subscribe to this brand of nationhood. For instance, certain sections of the political community – most notably, of course, Aidan Burley MP – explicitly criticised Danny Boyle’s focus on multiculturalism during the Opening Ceremony, while it is not unreasonable to assume that vast sections of society displayed utter ambivalence towards the entire affair. This is not a pessimistic assessment, but a genuine observation of the divided nature of British society – we would be doing ourselves a disservice if we were to assume that London 2012 had papered over the fault-lines that pierce through Britain.

The second conclusion to draw is that the British performance at the Games only represents a blueprint for sporting achievement. Many in the media have argued that the methods which led to the enhancement of British athletic prowess – most notably, David Brailsford and the Great Britain cycling team – can, and should, be applied to other areas in society, such as the economy. Equally, our improved athletic output has been employed by those who advocate the merits of sustained and substantial state investment into the economy.  Of course, Brailsford’s theory of the “aggregation of marginal gains” – the idea that “small improvements in a number of different aspects of what we do can have a huge impact to the overall performance of the team” – is undoubtedly cogent. Striving for improvements on a micro-level can have a substantial, positive, effect on a macro-level. Similarly, there is no doubt that the substantial finance that was devoted towards the training of our athletes created an environment in which they were able to achieve levels of high performance.

The difference, however, between elevating the fortunes of a struggling cycling team and reviving a spluttering economy is vast. Firstly, Mr. Brailsford’s mandate was a simple one – to construct an environment in which athletes could cycle as fast as possible. The fact that this is a single objective not only focusses the mind and sharpens resolve, but allows for a particularly effective method of evaluating progress – if your athletes are not cycling faster, you must make improvements. In contrast, however, an economy is rich, layered and textured. There are both multiple indicators of success and, because of the political ripples that accompany economic policy, various bars to real innovation.

In addition, it would be overly-simplistic to assume that, because large sums of money was devoted to the development of athletes, and, in reality, those athletes delivered an improved performance, that ample investment into other areas of life would yield corresponding results. Of course, this analysis is vulnerable to outcome bias – not only are there are variety of possible explanations for improved athletic performance that have little to do with investment, but it also fails to consider whether that finance could have been used more efficiently. More importantly, the nature in which the finance reserved for British sport has been distributed would have extremely pernicious result on our economy. Essentially, the hunt for gold medals – of any kind – incentivised our decision-makers to focus on specialised sports that can be disproportionately influenced by elite coaching and leading technology. This ruthless, market-driven, system of allocation has ushered Great Britain into an era of medal-winning prosperity, but has had little impact on the sports not deemed to be a priority. Imprinting such a model onto our broader economy would have wholly adverse ethical and political consequences.

However, the conclusions we should draw from London 2012 are not wholly negative – throughout the Games, substantial sections of the British public embraced the volunteer spirit, willingly donating their time to contribute to the organisation of the event. These individuals were not merely important from an organisational perspective, but – as anyone who visited any of the venues will understand – enriched the emotional aspect of the Games, approaching their roles with professionalism, warmth and earnestness. In the process, they reflected the value of community and – unwittingly, of course – conformed to the Prime Minister’s ephemeral “Big Society” concept.

The “Big Society” was, and is, a fantastic idea that was neither properly developed, nor properly communicated. At its core, it seeks to repudiate the atomistic vision of society that encapsulated the 1980s, and extols the values of active civil engagement. An indirect descendant from Robert Putnam’s seminal research into the decline of social organisations in America, it means that society is stronger, more harmonic, and more cohesive, when individuals collaborate. When we do engage in social organisations (Putnam’s research focussed on bowling leagues), our social capital is augmented, promoting interaction among individuals and a heightened sense of civil responsibility. Economic and non-economic benefits alike are, in this way, lubricated by the development – or, rather, re-development – of collectives and cooperatives.

The volunteers who generously conferred their time did not deliberately grease the wheels of the Big Society; nor do they demonstrate that Mr. Cameron’s vision has been smoothly implemented – neither proposition would be correct. What they do show is that an appetite for collaboration exists; that the British people are still interested in civil engagement. This is to be positively welcomed.

Louise Mensch’s departure will benefit Westminster

She appears to be a decent person; she possesses a keen work ethic, rugged determination, and a healthy dose of charm. In any profession outside of politics, she would have excelled. Unfortunately, however, Mrs. Mensch represents everything that is wrong with the modern Conservative party and the short-comings of its’ leader – her departure from politics will benefit not only the party she represents, but the entire establishment.

That Mrs. Mensch has polarised opinion in her two years as a serving member of Parliament would be a severe understatement. To her credit, she has displayed a genuine willingness to engage with society via social media and television broadcasts. Of course, as this informative post illustrates, her Twitter career has enjoyed mixed success, while her broadcasting appearances have – on occasion – been the subject of ridicule. Most notably, of course, was her misjudged critique of the Occupy movement on Have I Got News For You.

The principal criticism against her – that she expressed unquestioning loyalty to the government – is well-founded; she voted against the government only 3 times (0.7% of her total voting record) during her two years in office. She also exhibited extraordinary intellectual malleability in her defence of, inter alia, Jeremy Hunt and Rupert Murdoch. Now, there is, undeniably, a place for loyalty and cohesion within the party, but this degree of fidelity is highly undemocratic – the citizens of Corby (her constituents), surely, did not see reason to elect her on the basis that she would give obdurate consent to the Executive’s agenda. Whether her unswerving obedience to the Cameron regime was borne out of ambition is – now – moot, but it hardly represented a valuable contribution to the British political establishment.

However, her real failure was underscored by, on the one hand, general insubstantiality and, on the other, ideological vacuity.

Mrs. Mensch’s entire political career was undermined by insubstantiality. She rarely applied thorough, critical, thought to her forays into the political debate. Take, for instance, her approach to freedom of speech – during the riots of 2011, she called for Twitter to be shut down during periods of social unrest. When it was subsequently put to her that not only had the police utilised the social media site during the riots with great effect, but that it reflected a violation of the individual’s right to free speech, she employed a hasty modification from her original position. Similarly, she criticised the Human Rights Act 1998 as too “broadly drawn” and something that the public “loathe” on Twitter, while defending the concept of human rights in principle. Her followers were not treated to an explanation as to precisely why the 1998 Act was poorly framed.

These may seem like trivial examples, but they are reflective of the workings of a mind unconcerned with substance. On both occasions, her position was intellectually flimsy – she had traced the skin of an idea, but not formed its’ flesh. Indeed, her opinion on the Human Rights Act barely constituted the veneer of the skin of an idea. I am not suggesting that our political leaders should, per se, be doyens of counter-riot strategy or public law, but one does expect our elected representatives to apply an element of rigour to their intellectual offerings.

I suspect that Mrs. Mensch’s insubstantiality stems less from intellectual poverty – she evidently possesses a generous amount of shrewdness – and more from innate spontaneity. That she acts on impulse is seemingly evidence by the nature of her departure from politics – she must, surely, have understood the pressure of being a Member of Parliament would exert on her domestic life. Indeed, she would have been expected to have appreciated the difficulties of forging a cross-Atlantic relationship on top of her onerous political duties. Yet she persisted with her political career and – even – tirelessly forged a strong public persona in her spare time. Finally, she appears not to have considered whether the retirement of a self-declared feminist on the grounds of an unhealthy work-life balance will affect the psyche of working mothers in society. We are left with the strong impression that she failed to properly assess the implications of entering the political class. Certainly, it is not the sort of meticulousness one demands from its elected representatives.

Most importantly, Mrs. Mensch has failed to endorse a coherent or defined ideology. In an article she wrote for The Guardian in January, she specifically stated that she entered politics having been inspired by David Cameron, and his mandate to “de-toxify” his party. This is worrying – Mr. Cameron is, unabashedly and unashamedly, post-ideological. He recently wrote in the  Daily Telegraph that he was “…sceptical of those who claim to draw the answer to every problem from a loud ideology”. In this way, he is a direct descendant of the wholly post-ideological Tony Blair, who has made reference to the dangers of an “ideological cloak”.

The problem is that ideology matters. Firstly, a resolute ideological core imports coherence and purpose into governance – it prevents the type of ad hoc leadership that caused the incongruous Budget delivered this year. Indeed, a government imbued with a clearly-delineated ideology is able to articulate a compelling and consistent message to society – this is important not only in terms of the confidence invested in our political class but for the stability of those affected by political decisions.

The presence of ideology in politics also benefits the political discourse – rather than reducing debate to the sort of crude cost-benefit analysis that resembles the current political dialogue, the examination of ideas is positively welcome. Ideas that are critiqued, cross-examined and adapted, are stronger, more comprehensible and, ultimately, more normatively valid. Even the exercise of defending one’s own ideas has significant value – it forces us to test our ideas, and re-affirms the warmth we display towards them.

Further, the sort of post-ideological sphere promoted by Cameron, Blair and – by extension – Mensch has profound practical drawbacks. If the political arena no longer reflects the battle of ideas, the likelihood of it being a vehicle of power for its own sake increases. Indeed, if Mr. Cameron has no distinguishable ideology, one is left to wonder why it is that he seeks to preside over the Executive. The overwhelming inference is that he seeks power ipso facto. This impulse evidently has no place in a civilised political system. The fewer politicians that aspire to this outlook, the better. And, it is for this reason that, although it got a little bit less colourful today, Westminster will be better for Mrs. Mensch’s exit.

 

How football acts a surrogate for middle class escapism

Former Liverpool F.C. manager, Bill Shankley, famously said: “Some people believe football is a matter of life and death. I am very disappointed with that attitude. I can assure you it is much, much, more important than that”. It was an astute observation. The fanaticism and infatuation of football’s fandom is, almost, beyond parallel. It has been thoroughly hardwired into British culture, absorbing not only our time, but our emotions – provoking, alternatively, frustration, debilitation, gratification and exhilaration. For some British citizens, their affinity with their football team will be the most enduring and defining relationship of their life.

The cult that surrounds football intrigues me – why the devotion? Why the unquestioning loyalty? Most of all, what promotes the rigid and – at times, hysteric – tribalism?

Objectively, the sport is aesthetically pleasing and structurally dramatic. The elegant blend of athleticism, intelligence and technique is visually stimulating, while the unpredictable structure of the sport gives rise to frenetic crescendos and dramatic intrigue. But, other sports contain these features. Other mediums enthrall us, yet we neither revere, say, the films of Christopher Nolan to the same extent, nor submit those who fail to share our taste in music to pernicious rivalry.

For some, football’s hold is lubricated by family ties. I have vivid memories of travelling to Anfield as a six-year-old with my father to watch Tottenham Hotspur in the quarter-final of the F.A. Cup in 1995 and – importantly – the sheer joy associated with the victory secured on that day. Indeed, the image of ex-Tottenham striker and talisman, Teddy Sheringham, still arouses a juvenile feeling of unbridled veneration. In this way, football was a vehicle for parental bonding and, in part, shaped my adolescent relationship with my father. Those with families – in particular, fathers or father-figures – that are more ingrained into the fortunes of their football clubs, will display a stronger familial attraction to the sport.

However, the universal reason behind our addiction to football is rooted in broader cultural trends – on the one hand, a yearning to subscribe to a community, and a need to be part of something more significant than merely the individual. On the other, an impulse to escape from the pressures of our routine and stratified lives, and immerse ourselves in the uncontrollable fortunes of others. In fact, it is utterly, and perversely, liberating to, willingly, hold oneself hostage to the actions of a third party.

That football engenders solidarity among its fans is well-established. The best – and, most disturbing – example came after the ex-Sheffield United striker, Ched Evans, was convicted for an offence of rape; a certain section of Sheffield United’s fanbase exposed the complainant to unpleasant language via Twitter. While, of course, this instance is far from the norm, football fans positively demand fidelity to their clubs. This premium on loyalty feeds its’ appeal – because fandom is leveraged by commitment, anyone can participate, provided they are willing. And, in this way, supporting a team represents something of a social leveler – inside the stadium, fans are not judged on their appearance, or wealth, or personal characteristics, but, simply, their allegiance to the cause. For ninety minutes, all fans are united in a common purpose – and, understandably, they derive comfort and familiarity in the process.

Further, I believe that the delirium that surrounds football has been exacerbated by its’ recent change of audience and, in particular, its’ engulfment of the middle classes. In terms of football’s history, its’ status as a surrogate for more expansive, and abstract, cultural needs is a relatively recent phenomenon. Traditionally, football was the exclusive province of the working class – subscription to a particular team depended on geographical location, and demonstrating an affection for that team reflected the principal importance of the locality in the individual’s personal psyche. This is no longer the case. A variety of technological developments that led to the increased geographical – and, indeed, social – mobility, has led to a more fluid and esoteric society. In short, and owing to frequent inter-city migration, one’s identity is no longer associated with the locality in which they inhabit.

Similarly, football is no longer a working class pursuit. For example, the price of watching Premier League football – either at the grounds, or via a subscription to Sky Sports – certainly suggests a viable and healthy middle class membership exists. And, the presence of corporate hospitality seating represents the virile interest that our middle classes exhibit towards football. The fact that the former Chief Executive of Barclays Plc, Bob Diamond, proudly tweeted a picture of himself with John Terry and the F.A. Cup reflects the omni-class component to footballs modern fanbase.

There is a perception that the emergence of the middle-class football fan has had an adverse effect on football – that the increased finance has led to an inequality of arms, that the atmosphere has been punctured, and that the rise of ‘glory hunters’, who merely support the successful teams has cultivated a more superficial aspect of football fandom. These are, to some extent, valid observations. In reality, however, the middle-class’s colonization of football has cultivated a far deeper shift in the way the game is followed.

For example, I suspect that a deeper emotional investment in the fortunes of football teams is directly linked to the deeper financial investment that modern football fandom demands – because supporters finance their clubs budgets, they demand an input into how it is spent. Similarly, because they finance footballers’ large salaries, fans feel that they are entitled to, and expect, elite performance. Along the way, the fan’s dependence on football has heightened – turning one’s back on football would, at this point, represent an admission that all the wealth spent on pursuing the game was, essentially, misplaced.

In addition, football has been affected by a revolution in the dissemination of information, which – while hardly the exclusive property of the middle classes – is certainly most closely intertwined with the social and professional lives of the highly-literate, bourgeois, folk. Essentially, and as innovations in technology have fed the professional classes’ gargantuan appetite for information, they are now accustomed to its’ absorption from a myriad of sources, and at regular intervals during the day. The upshot is that football’s fandom now positively soaks itself with constant information regarding football – most notably, of course, via endless, rolling news channels such as Sky Sports News.

Indeed, the precise method by which information regarding football is promulgated reflects the proliferation of the professional classes into football’s fandom. Whether consciously or unconsciously, news relating to football now emulates the mediums in which financial data and economic development is dispersed – for instance, the ever-updating (or “breaking”) culture of Sky Sports News mirrors the hectic atmosphere of the stock exchange, while the reliance placed on transfer gossip echoes the importance of insider knowledge in business.

The reasons why the middle classes have developed a fascination with football are, perhaps, less well-established. Principally, I believe that football embodies an element of escapism that innately appeals to our middle classes. Supporting football is, above, all easy. It is non-intellectual and non-pressurised. It is also direct and visceral; rather than determining success over quarters, football assesses competence over ninety minutes. Further, although football is inherently, and infuriatingly, unfair, being a supporter is thoroughly non-political and predictable. Finally, football is utterly unconventional, where – for instance – turnovers increase during recession and the impulses of the heart overrule machinations of the brain.

The law should not treat ritual circumcision as a sacred cow

On 7 May 2012, the Amtsgericht Cologne ruled that a Muslim boy’s ritual circumcision represented criminal behaviour, and violated his constitutional right to bodily integrity. The defendant performed a circumcision on the a 4-year-old child (“K1”), in his medical practice in Cologne. The operation was performed under anaesthesia, and with the aid of a scalpel. There was no medical basis for the procedure, but was requested by the parents in line with their Islamic faith. A translation of the judgment can be found at the Durham Law School website (http://www.dur.ac.uk/law/news/?itemno=15002). Essentially, the court held that the defence of “social adequacy” (which appears to resemble the defence of “necessity” in English law) does not prevent a ritual circumcision from satisfying the elements of an offence. In addition, the Defendant’s actions were not justified by consent – K1’s consent could not be given “due to a lack of intellectual maturity”. The fact that his parents consented “could not justify the infliction of bodily harm”.

The court also performed a balancing exercise of competing rights established under the German Basic Code. It considered the interaction between, on the one hand, the parent’s right to freedom of faith and conscience and their “natural” right to care and bring up their children and, on the other, the child’s right to “bodily integrity and self-determination”. The court remarked that ritual circumcision is “unreasonable in the sense of proportionality”, and noted that it “changes the child’s body permanently and irreparably”.

The German government has expressed public support for the practice of ritual circumcision (http://www.bbc.co.uk/news/world-europe-18833145), while various commentators have considered the merits of the ruling. Debate has generally been stratified, from one extreme (Giles Fraser described the decision as “ridiculous and offensive” – http://www.guardian.co.uk/commentisfree/belief/2012/jul/17/german-circumcision-affront-jewish-muslim-identity) to the other (Catherine Bennett wrote that circumcision is “an affront to decent human behaviour – http://www.guardian.co.uk/commentisfree/2012/jul/22/catherine-bennett-circumcision-is-bad).

The principal argument behind criminalising ritual circumcision concerns the issue of consent – because infants cannot give informed consent, the unlawful physical contact that is committed against them should represent an offence. Indeed, under liberal principles, circumcision represents a severe interference with the rights of individuals. In contrast, the arguments in support of circumcision stress its’ status as an accepted religious custom and symbol of religious identity. The debate rarely touches on scientific matters – although there can be no doubt that circumcision represents a permanent and unalterable bodily change, there is insubstantial evidence that it causes adverse health consequences (http://www.guardian.co.uk/law/2011/jun/15/male-circumcision-ban-health-religion-debate?INTCMP=ILCNETTXT3487).

Ritual circumcision occupies a rather peculiar space in criminal law – removing another’s foreskin should, prima facie, constitute an offence under the Offences Against the Person Act 1861. However, it does not. The leading case on the liability of those performing ritual circumcision is Re J (Specific Issue Orders: Muslim upbringing and circumcision) [1999] 2 F.L.R. 678, where Wall J (as he was then known) ruled that male ritual circumcision was lawful, provided there was joint parental consent. His reasoning was endorsed by the Court of Appeal at the time (Re J (Specific Issue Orders: Muslim upbringing and circumcision) [2000] 1 F.C.R. 307, CA).

Re J concerned a non-practising Muslim father who sought an order requiring a non-Muslim mother to bring their child up as a Muslim and, pursuant to that, for there to be a circumcision. Wall J observed that there was a dearth of judicial references regarding the legality of ritual male circumcision, but relied on an obiter remark made by Lord Templeman in the controversial case of Brown, which assumed that it was lawful. His Lordship stated that “…other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities”.

Although the Human Rights Act 1998 was not yet in force, the learned judge in Re J  balanced the competing rights of the child and parents, when assessing the appropriateness of granting an order for circumcision. He concluded that the parental right to manifest their religion under Article 9 of the European Convention trumped the welfare of the child, and placed significant emphasis on the fact that the parents had given joint consent.

Had Wall J considered the child’s right to bodily integrity under Article 8, the right to freedom of religion under Article 9 and the right not to be subject to inhuman and degrading treatment under Article 3, he may well have arrived at a different conclusion. However, in a case decided after the enactment of the Human Rights Act, Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam), Baron J declined to carry out a structured balancing exercise of Convention rights, and followed the ratio in Re J – namely that where both parents agree ritual circumcision is lawful.

The position, then, is clear – by virtue of the common law, and in the exercise of joint parental responsibility, male ritual circumcision is lawful. The basis behind this principle is less clear – it is not consolidated by statute, while the common law fails to elucidate why ritual circumcision is lawful. Lord Templeman’s reference to ritual circumcision in Brown outlined above is particularly perplexing; it was grouped together with activities that demand consent, while male infants cannot give informed consent.

It seems inconceivable that, were the issue to be considered by the European Court, this position would be deemed to be Convention-compliant – the current state of the law simply does not accommodate the rights of the male infant alongside the rights of his parents to perpetuate their religious beliefs. Indeed, the proposition that the consent of the infant (which of, course, cannot be given) is overriden by the consent of their parents is, conceptually, flimsy – not only does the theory undermine any notion of self-autonomy, but imbues parents with a disproportionate level of influence over their children. In this way, criminalising this practice would, in theory, compliment a liberal democracy, a core aspect of which is that individuals should exercise control over their own bodies.

Of course, what works in theory is not always suitable in practice. Would it be prudent to criminalise a practice established, and venerated, over centuries? Outlawing the practice of circumcision would threaten a ritual of critical importance to Jewish and Muslim identities. In McFarlane v Relate Avon Limited [2010] EWCA Civ B1, Lord Justice Laws criticised the notion that the law should not intrude on religiously significant customs – he stated that: “legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled”. The learned judge’s logic is fundamentally sound, but it occurs to me that there is mileage in the wisdom of respecting modes of behaviour that have stood the test of time.

Indeed, the law on circumcision is interesting precisely because it trespasses on the issue of religion’s relationship with the law. That religion has provided many with a valuable moral compass is a grave understatement – as such, one might expect the law to compliment institutions of religion. On the other hand, the rule of law would be safeguarded under a truly secular legal system – the rule of law imports a sense of neutrality to the law, demands that laws are conceptually consistent, and forbids the type of inconsistency that immunising religious practices would represent. In fact, this is why, on balance, the law on circumcision should be reformed. A fair and equitable legal system should not reinforce inconsistency or consecrate any ‘sacred cows’, however well-established or culturally-rich they might be.

 

 

 

 

 

A philosophical defence of “Geordie Shore”

For those that aren’t aware, a television programme entitled Geordie Shore is currently being shown on the MTV channel. As part of the structured reality genre, it is faithful to its American predecessor, Jersey Shore, in that its premise is to place a number of young adults from a distinct culture – who had never met – into residence with each other, and filming the fall out. Consistent with MTV’s general outlook, Geordie Shore was designed to appeal to young adults and teenagers – and, in particular, those familiar with the culture of clubbing, binge drinking and promiscuity. Indeed, the makers of the show openly promoted the cast as “strut[ting] their stuff in mini-skirts shorter than belts and wearing more layers of fake tan than seems humanly possible, whilst the guys pump iron at the gym and drink alcohol as if it’s going out of fashion” while offering a “peak into their glamorous lives and party lifestyles”.

It is in an apt description. Although the show, having reached its third season, focusses to some extent on the personal relationships that have developed between the members of the cast, its modus operandi is still an insight into attractive, vain and exuberant individuals determined to drink, ‘party’ and sleep with the opposite sex. The characters are brash, crude and rude. Their alcohol-fuelled antics are controversial, reckless and shocking. Yet, the show’s popularity has consistently blossomed – to the point that slightly under a million viewers watched the debut episode of Season Three. And, while the critical reaction has been somewhat mixed, there is no doubt that the cast members are well-established names among the Mail Online sub-culture.

On the other hand, the show has received sneering and contemptuous treatment from various sections of the media. I was particularly struck by an article written by Charlie Brooker, published in The Guardian on 01.07.12 (http://www.guardian.co.uk/commentisfree/2012/jul/01/geordie-shore-noblest-people-in-britain). The article is a condescending appraisal of the show, in which the cast members are referred to as “unbelievable idiots” and “walking caricatured receptacles for spite”. His core argument is that the cast members should be hated, and even – “looked down on and despise[d]”. In doing so, they are providing a “noble…public service”. I am prepared to forgive the misanthropic Brooker, for his polemics are usually well-aimed and well-delivered. On this occasion, however, I feel that he misses the point.

Brooker mistakenly amalgamates the programme with other contemporary reality shows, such as Made in Chelsea and The Only Way Is Essex. While these works are highly structured, arguably scripted, shows which revolve around pre-determined storylines, set-pieces and sophisticated production, Geordie Shore is unstructured, unrefined and uninhibited television. It is more resemblant of a documentary than a “structured” reality show – in fact, the camera crew have, on occasion, intervened during high-tempered scenes.

Indeed, the anarchic style of production suits the personalities of the cast members, and, even, reflects the show’s genuine worth. The brilliance of Geordie Shore is not the entertainment of their behaviour per se – although their antics are perversely captivating – but in the refreshing self-determinism of its cast. Their personalities and traits may not appeal to metropolitan elites such as Brooker, but the cast members are thoroughly content with who they are, and the lives they lead. The show is entirely devoid of the type of introspection, awkardness and obsequiousness that characterises its competitors. Instead, the viewer is left with the effervescence and pure confidence of its extroverted cast.

Take the opening credits of the show – Jay proudly proclaims that “[his] biggest fear is getting wrinkles” because his outlook is not contaminated by self-doubt; Holly states “I’m fake. I’m flirty. And, I’ve got double F’s” with clinical bluntness precisely because she is not ashamed of those facts; while Ricci boasts that he possesses “the looks, the charm. It just works”, revealing utter self-assurance. The characters behave with complete honesty – without any abandon or proclivity to embarrassment, they fornicate, vomit and vandalise, all in the knowledge that their actions are being recorded for public consumption. Unlike the intrigue and tension of Made in Chelsea, where flirtation among the cast members simmers throughout the series, the cast of Geordie Shore hurtle into sexual relationships with striking spontaneity. The closest the show gets to a Spencer-Caggie Chelsea-style courtship is the Holly-James dynamic – Holly decides that she wants to “bang” James; drunkenly propositions him over a series of episodes; eventually, an inebriated James relents.

The cast are, indeed, direct descendants, and embodiments, of the philosophy of existentialism. They have, implicitly, subscribed to its principal proposition, which is that the actual life of the individual constitutes their “essence”, rather than any pre-determined notion that defines what it is to be a human. In the same way that Kierkegaard and Satre talked of humans creating their own values and determining their own meaning to their lives, Jay, Gaz and their colleagues are masters of their own identities, and do not seek to conform with the cultural and social zeitgeist. They are enemies of what Bret Easton Ellis has termed the “Empire” in his legendary article on Charlie Sheen (http://www.thedailybeast.com/articles/2011/03/16/bret-easton-ellis-notes-on-charlie-sheen-and-the-end-of-empire.html), the homogenous, pre-packaged and predictable entertainment status quoGeordie Shore is emphatically post-Empire, screaming non-conformity to the predictable reality entertainment genre, vomitting on itself unashamedly (metaphorically, and – in the case of Charlotte – literally) and sticking a middle finger up to the faux-intellectual elites that read Brooker’s Guardian column.

Yes, the cast of Geordie Shore are vain and superficial. Most in civilised society would consider that their priorities in life are somewhat distorted. Their behaviour is frequently alarming. But “hate” them? We should admire the self-confidence of this motley gang, and venerate the fact that they are comfortable in their own identities. It was recently announced that a major character, Jay, would be leaving the show; when asked to comment, he maintained that he would “go out with a bang”. You wouldn’t expect any less from this uninhibited bunch.

The Ferdinand brothers and the perversity of elevating racial abuse

On 23rd October 2011, during a football match between Chelsea FC and Queens Park Rangers (“QPR”), John Terry of Chelsea said the words “black c*nt” to Anton Ferdinand of QPR. Ferdinand is of Black Caribbean and Irish heritage. Terry admitted that he said the words, but averred that they were preceded by words to the effect of “I didn’t call you a…”. He was charged with an offence under Section 5 of the Public Order Act 1986, aggravated by Section 28 of the Crime and Disorder Act 1998.  Last week, District Judge Riddle delivered a verdict of not guilty.

Much has been written on, inter alia, the decision to prosecute and the unpleasantness of modern professional football. My interest, however, has been piqued by two remarks made in connection with the matter – firstly, in examination-in-chief, Anton Ferdinand said “when someone brings your colour into it, it takes it to another level and it’s very hurtful”. (http://www.bbc.co.uk/news/uk-england-london-18760180).

Secondly, Anton’s brother, Rio, re-tweeted a tweet which said “Looks like Ashley Cole’s going to be their choc ice. The again he’s always been a sell out. Shame on him.” Rio responded: “I hear you fella! Choc ice is classic! hahahahahaha!!” Cole is a teammate of Terry’s, who the Defence called as a witness at trial. He is also black. Most interpreted the comment as a suggestion that, like the Choc Ice brand ice cream, Cole has a black exterior and a white interior. The Urban Dictionary defines it – alongside other somewhat creative definitions – as “a black person who acts like a white person”. For his part, Ferdinand has since claimed that it is “not a racist term. Its a type of slang/term used by many for someone who is being fake.” For the purposes of this post, I will assume that the well-established definition was at the forefront of Mr. Ferdinand’s mind.

Most observers would not dispute the logic behind the first statement. It is a commonly-held presumption that racial abuse is more serious than abuse that does not account for the abusee’s racial background. This much is generally reflected in sentencing policy, where racial motivation frequently constitutes an aggravating factor. The basis behind elevating racial abuse above non-racial abuse is fundamentally virtuous; racist language represents corrosive and arbitrary thought, which – in theory – has no place in a civilised society.

However, why is racial abuse, per se,  more offensive to the abusee than non-racial abuse? Why, to paraphrase Anton Ferdinand, is calling another person a “black c*nt” more offensive than simply a “c*nt”? That people generally dislike being categorised according to their physical characteristics is self-evident; we prefer to be judged on our personal, or emotional, characteristics, which provide a more accurate method of defining who we truly are. Nonetheless, the reality  is that Mr. Ferdinand’s black skin is merely a product of his genetic makeup, and unalterable in exactly the same fashion that all of our physical characteristics are. Although I have no doubt that being black is culturally significant in modern society, it is, essentially, a physical characteristic, and akin to eye colour, hair colour, hairline shape, allergies, etc. In theory, then, we should be no more offended when another abuses us with reference to our skin colour than any other genetically-determined, physical traits. In fact, it occurs to me that, from a logical perspective, we should be more offended by abuse that focusses on our personal, or emotional qualities or behaviour; those are the qualities that are unique to us, that we can alter, may have invested in, or are, indeed, proud of.

But, in the main, we are not. Insulting someone for being – for example – unattractive, or small, is not perceived as serious as insulting another on the basis of the colour of their skin. I suspect that the reason for this can be attributed to long-standing cultural trends. Concentrated migration into certain areas has led to the emergence of tightly-knit communities who are defined, partly, by race. Racial characteristics – chiefly, skin colour – became indicative of one’s membership to that particular community, and, therefore, skin colour represented a core aspect of one’s identity.

In this way, Anton’s position is perfectly understandable, and broadly representative of social norms. His brother’s remarks, on the other hand, illustrate how perverse that position can be. Implicit in the “Choc Ice” term is that those with black skin are somehow unique, on a personal level, from those with white skin. This is plainly nonsense and, counter-intuitively, a concept that serves to perpetuate the misguided idea that black individuals are somehow distinct from white individuals. I believe that this vein of thinking derives from the prevalence of skin colour as an integral aspect of one’s identity – because being black is of critical importance to Rio Ferdinand’s identity, he presumes that Ashley Cole, another individual with black skin, will, or should, conform to his attitudes and behaviour.

Rio Ferdinand has been a powerful advocate for anti-racism, and the impression one gets is that he is committed to eradicating racism from sport and society. While he should be commended for such an intention, I fear that the way in which he – and others – conceive of race undermines it on a fundamental level. If society, and anti-racism campaigners, are to  successfully combat racism – be it overt, implicit or institutionalised – all in society must start to think of skin colour as a physical trait, and of racial difference as genetic variation. One cannot seek to construct a racially ‘colour-blind’ society, while, simultaneously, prizing their own, individual, racial characteristics as principal features of their identity.  This means that those representing the anti-racism lobby, and anyone interested in anti-racism, must resist the familiar instinct to elevate racial abuse to (per Anton Ferdinand) “another level”, however counter-intuitive it might seem.

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