Still you feed us lies from the tablecloth… On privilege by the privileged

Discussing privilege is probably one of the most difficult conversations currently in play.  It’s highly emotive.  It’s extremely personal.  It’s one of those conversations which strikes right at some fundamental aspects of society, and it’s therefore threatening and discomforting.

Human society only works because we hold various assumptions in common, assumptions which it is socially unacceptable to challenge or question.  The differences between societies can often be understood in terms of those assumptions.  We are a society which assumes that people have inherent rights and people are entitled to particular things.  We came from a society which assumed that monarchs were cosmologically necessitated.  That followed from a society which was highly legalistic and dedicated to tradition.  And so on and so forth.

What we note is that these foundation assumptions are often a kind of fiction — in the sense of culturally constructed narrative, the opposite of veridical fact. The word ‘fiction’ is problematic; we often think it means ‘false’ or ‘fake’ or ‘unimportant’.  We also tend to suspect that anybody who discusses ‘culturally constructed narratives’ and ‘fictions’ is afflicted with post-modernity.

It is in this way that we can start to discuss privilege.  As a straight white guy, I can ‘win’ these discussions in two ways.  First, I can simply refuse to engage with them.  Somebody’s saying something that makes me uncomfortable?  I can ignore them.  I have the ability to pick and choose conversations which suit me in a way that marginalised people can’t.  More than that, I can instigate conversations to an increased degree than marginalised people can’t.

Second, I can further marginalise people who try to raise these conversations.  Are you saying something which confronts my intuitions about the world?  I’ll mock you and make you a figure of ridicule rather than engage with your ideas.  Checkmate, Holmes.

I’m usually more guilty of the former than the latter for quite a sad reason: I am increasingly disgusted by people who mock intelligent people.  Douglas Adams wrote about feeling betrayed by comedians who mocked intelligent people: the comedian quipped that they should make aeroplanes out of the same material with which they made black boxes.  While the audience laughed, Adams knew the reason was because the material from which they made black boxes wasn’t light enough to make aeroplanes:

I began to pick at the joke. What if Eric Morecambe had said it? Would it be funny then? Well, not quite, because that would have relied on the audience seeing that Eric was being dumb — in other words, having as a matter of common knowledge the relative weights of titanium and aluminium. There was no way of deconstructing the joke (if you think this is obsessive behaviour, you should try living with it) that didn’t rely on the teller and the audience complacently conspiring together to jeer at someone who knew more than they did. [Source: The Salmon of Doubt, quoted here]

One of Douglas Adams’ heroes, Richard Dawkins, uses this approach regularly.  When he doesn’t understand something, he mocks it — and then admonishes people for mocking things that they don’t understand.

Don’t get me wrong.  If somebody is saying something stupid, I’m usually first in line with the sharpest invective.  But there’s a difference between ‘saying something stupid’ and ‘saying something with which I disagree’.

Another aspect of this is the (mis)use of terms to marginalise.  A person who tries to challenge social ‘fictions’ and ‘narratives’ might not be post modernist, but the slack jawed positivist can deploy the term to shut down the discussion: ‘That’s just post modernist nonsense.’  We see the same thing with the word ‘feminist’ (or, if the person doesn’t want to seem sexist or whatever, will refer to it as ‘[adjective] feminist’: they have nothing against feminism, per se; they just don’t think that there’s any merit to radical feminism, or third wave feminism, or lesbian feminism, or adjective feminism).

But am I any better by simply refusing to engage with ideas?  I have some friends and acquaintances who are extremely passionate about these issues.  I, on the other hand, am extremely conservative and have a manner which tends to make people feel patronised (both are — I understand — hideous flaws).  Instead of engaging with them on the subject, I have the option to stay quiet and move the conversation to less contentious grounds — and it’s the option I usually take.  Although I love a good argument, those conversations are just too difficult and too personal.  Too emotional and too confrontational.  They are discussions that matter and I have a hard and fast rule of only digging into esoteric, academic, pointless debates.  Thus, manners and civility kick in and we go back to ‘socially appropriate’ conversation.

I characterise this approach as ‘debating on my terms’.  We can only have the debate if I — the straight white male in the room — feel comfortable during the discussion.  It’s a dynamic problem.  The conversations can only take place if the privileged people feel uncomfortable, but we are taught from a very young age not to make people feel uncomfortable.  When we’re taught to mediate problems, for example, we are told to ensure both parties feel comfortable.  We take the confrontation out of the dispute.  But these conversations rely on confrontation and they are, by nature, confrontational.  The person who wants to question the ‘rules’ of social engagement can only do so by breaking the ‘rules’ being questioned.

Thus, no dialectic.

More than that, it affects the discussion in other ways.  Morons are more likely to mock and marginalise because they’re oblivious to how stupid they look (cf. Dawkins).  The people who are most likely to respond to the confrontational conversation are those who appear to get some kind of sexual gratification from confrontation: trolls. Advocates of the discussion learn to associate any disagreement with them as trolling, reducing the likelihood of the non-trolls engaging with the discussion.  Most advocates have a lot of practice dealing with trolls, but not a lot of practice in dealing with non-trolltastic opposition.  Further, the advocates of the conversation are not immune to infestations of bozos either (it’s a sad truth that conservatives don’t have a monopoly on nitwittery).  Thus, the loudest conversations end up being between people who have a vested interest in increasing the conflict and people who have no way to cope with the conflict.  Everybody else is left rubbernecking the resultant trainwreck.

We could talk about this in terms of ‘reward’: for me — a person who could, I imagine with more than a waft of hubris, participate in that conversation — there is no reward for entering into those conversations.  Unfortunately, this looks an awful lot like: ‘Poor straight white guy isn’t getting a cookie for doing the right thing.’

But it’s a bit more than that.  If I participate in good faith, I run the risk of looking like a troll (because only trolls disagree with the advocates) or (worse, from my perspective) I run the risk of legitimising the trolls.  This is one of the reasons why I’m invariably more vitriolic towards people who agree with me but use stupid arguments to get to my conclusion (see my interaction with Internet atheists, for a classic example).  If I shut down the morons on my side of the fence first, it’s easier to demonstrate that I’m not legitimising their imbecility.  Perhaps it’s self interested?  I look better if everybody who agrees with me used a good argument to come to their conclusion.

But it’s even easier to not engage at all.  Do I undertake those risks, or do I just continue to live in my little privilege-bubble where I avoid criticism?  A battle avoided cannot be lost, after all.  And thus we’re back at the start.

I’m not even sure what the solution is.  A few people have asserted that the only correct response from the conservative sector is to just shut up and listen.  Although I’m in a position of privilege, I think this approach means that the ideas being floated aren’t being tested adequately if one side of the conversation is just passive.  There are attendant problems with this position, of course, but they’re problems to be negotiated rather than avoided.  Further, if the idea is to get the privileged side of the conversation to adopt the narrative of the radical side of the conversation, ‘Shut up and listen’ won’t facilitate that.

But reaction, which is what conservatives do best, isn’t an adequate response either.  Many people — most people — seem to think that the opposite of ‘shut up and listen’ is ‘bark maniacally’.  Reaction isn’t engagement, it’s just an autonomic response.

For those of us on the conservative side of the fence who aren’t brain dead, it’s difficult to know how to respond.  We need to get the weed whacker out on the loudest noises gushing out from our side of the fence, while simultaneously mounting an intellectually credible response to the challenges presented.  Until we get that response right, do we continue to marginalise the conversation by refusing to engage?  I really don’t know.

Throw away the book of rules… Can we reconcile UN treaty bodies with constitutionalism?

Courts are a fundamentally strange creation.  Parliaments, in comparison, are much easier.  We vote for a representative to be part of the statute-creation process.  The voting process indicates (to some degree at least) the authority of the parliament.

We can bring this to a folk notion of consent.  In a republic of reasons, I can only interfere with another person if I have their consent.  The State, legitimised through an election process, can assume to have the consent of the population it governs (even if any one particular individual did not vote for the governing parliament because… magic).

It’s never as simple as all of this.  There’s a bit of chicken-and-egg when it comes to the rules of an election.  Take, for example, the Senate which is unrepresentative swill.  Take also the examples of the borders of an electorate, or whether you’ve got representative or proportional voting, a preferential system or a FPTP, &c., &c.

But at least there is a thread between the citizen and the parliament.  The judiciary is an altogether different beast.  Only people from the legal profession can become judges.  Judges are appointed, not elected.  They ‘interpret’ (whatever that might mean) the law as written by the people elected to create laws.  They also define what the current law is (as seen in the ‘You don’t know the Executive Power like I do’ case, Williams v Commonwealth about the National Chaplaincy Program).

We can, at a stretch, say that the Courts are governed by the people through the Constitution.  Through referenda, the people determine the content of the Constitution which authorises the creation, composition, and role of the judiciary.  And then the Court interprets the meaning of that law…  So it’s not a perfect system.

Let’s not discuss the Executive…

What we are seeing is something sort of like a closed system of legal authority.  Somewhere, there’s a thread between the citizen and the institutions which have power over them.  With the possible exception of part of the Executive, there are no outsiders to the system.  It also shows why the debate between parliamentary sovereignty and judicial sovereignty is so important.  Should judges be the final word on the limits of parliamentary power?  Are elections a sufficient check on the limit of parliamentary power?  A lot of us have very strong intuitions about what we think ought to be the case, but turning that into something reasonable is difficult.

Enter international law.

Instead of having individual citizens of an international community, public international law is about States.  It’s also about the establishment of supranational legal authority through the creation of treaty bodies.

I struggle to reconcile the idea of international law with constitutionalism in any strong sense (the word ‘Constitutionalism’ often varies in its meaning from something theoretically interesting – the ‘-ism’ of constitutions, like ‘Marxism’ or ‘Socialism’ or ‘Positivism’ – through to just a pretentious term for the analysis of particular constitutions.  When I use the word here – or anywhere, really – I’m using it in a strong, theory sense).

We can have a sensible discussion about constitutionalism entailing the control or restraint of State authority by the people who are governed (the last bit there is sleight of hand, because it might be possible to think of non-democratic constitutionalism).  But public international law adds an extra layer: we now have States controlled both by the people who are governed and by a bunch of ambassadors (and former ambassadors) from various countries.

Perhaps the thread goes from the people, to the State, and then through the State to the treaty bodies.  This seems like a stretch.  Australia’s Constitution allows the Commonwealth Parliament to enter into treaties; perhaps the treaty bodies are legitimised in a similar way to the judiciary.  This also seems like a stretch.

Treaty bodies with the authority to issue punishment are fundamentally problematic because they share control and restraint of the organs of State with people who are not governed by those organs.  But maybe there’s the rub.  Treaty bodies are generally unable to issue punishment and often rely on the consent of States to accept findings.  Treaty bodies aren’t ‘controlling’ or ‘restricting’ the State in a strict sense.

Even so, that’s a tenuous point.  If we talk about treaty bodies as creators of international legal norms (which we often do), then they need to have some sort of authority.  There needs to be some explanation for how that authority can compete with the authority of the State to legislate in accordance with the wishes of the electorate.

Perhaps we should go down the path taken by other countries: the Commonwealth can sign international treaties, but they aren’t ratified until supported by popular vote.  At each general election, we’d have a list of the treaties signed by the Commonwealth since the last election.  We could indicate whether we agreed to it or not; if it failed to win a majority of support in a majority of the states (oh, how I hate the states), it would fail to become law.

Most of the groups who are enamoured with international humanitarian law would be extremely concerned about anything resembling democratic will (humanitarian groups love judicial supremacy).  As sometimes happens, those groups are correct.  Is it an efficient and effective way to engage in foreign policy if you have to wait for the next general election before you can act on treaties you’ve negotiated?  The countries that do this are notoriously slow to act on treaties.

But it does leave us back at the start.  What justifies shared control of the State with the ‘international community’ (by which we mean ‘a large committee of very senior, busy people whose seniority is not uniformly correlated with merit and whose expertise is patchy and often politically tinged’)?