How should those charged with applying the law administer it?
From a 2006 article on Latin American approaches to labour inspection, Michael J. Piore and Andrew Schrank hint at a fascinating approach to regulatory decision-making we like to pretend is impossible in Canada:
The flexibility of the Latin model in particular contradicts the image of labor-market regulations as bad for business. A telling example comes from our interviews with inspectors in France, where the Latin model originated but where it is currently under attack for its alleged rigidity. One inspector discussed his approach to the limitations on the use of temporary help and gave as an example the case of a large firm that he knew to rely excessively on temporary employees. He also knew, however, that it had an informal agreement with its unions to periodically move a certain number of temporary workers onto its permanent payroll, and in light of this agreement he simply ignored the temporary-help violations. His reasoning, he explained, was that the goal of the temporary-help restrictions was to expand permanent employment, and he thought he would be unable to obtain more permanent jobs by enforcing the existing regulation than by tolerating the admittedly illegal informal arrangement with the union. The law, he pointed out, is a means, not an end in itself.
My friend Sean is an ardent opponent of laws which are selectively enforced. He uses the example of drug laws which end up being applied so that the aggregate result is obviously racist. So where’s the middle ground? There’s a PhD thesis in there just waiting to be written.
This weekend’s balmy Montréal weather provided me ample indoor time to consider the question of what’s wrong with political discourse these days. I’ve been sussing out a research project with a doctoral candidate in Communications Studies [ footnote: the more you learn about the important issues in modern politics, the more you realize that political scientists are the least likely to be studying those issues]. I’m interested in whether there is a problem with the way that politicians communicate to the Canadian public, how they are abetted by a (corporatized) press, and how one can do something about the register of political discourse without directly trying to regulate politicians or the press directly.
What’s the issue? The nature of the problem may strike a chord of ‘obvious,’ but I found clearly articulating the relevant shortcomings to be an incredibly difficult task. I think it’s best illustrated through the example I’ve had in mind while working through these issues, which concerns the uses and abuses of the ‘tough on crime’ discourse.
There is good evidence that being ‘tough on crime’, if what one cares about is reduced criminality and improved public safety, is very different from being ‘tough on criminals’, which focuses on the application of ‘appropriate’ punishment. Within limits, the Harper government’s gamut of strategies – higher incarceration rates, longer sentences, mandatory minimums, reduced bail opportunities – has little impact on crime rates. One could just as (or more) easily use ‘tough on crime’ language to refer to strategies effective in reducing criminality and recidivism, and thereby improving community safety: e.g. reducing poverty rates, focusing on community reintegration, promoting social inclusion.
Like ‘tough on stains’, a ‘tough on crime’ discourse conflates intimations of brusque treatment and an intention to rub out the underlying phenomena. There is nothing a priori inaccurate about using the phrase to refer only to retroactive condemnation of criminality; yet no washing liquid, no matter how caustic, could claim to be ‘tough on stains’ unless it effectively reduced the sign of such stains.
In saying they are ‘tough on crime’, the Harper government attempts to cover the field. The language they use implies both approbation and activism, painting the opposition as indolent and inattentive. The Canadian press in turn does a poor job of challenging those using ‘tough on crime’ language, or of critiquing its use by placing it in the context of either criminology research and discussion of criminal justice ethics. The result is occlusion of a debate about whether we should value criminal policy which gives victims justice by appropriately punishing perpetrators or social policy likely to reduce the number of victims.
Shouldn’t politicians interested in good policy want to speak with nuance, depth and complexity about their proposals, their likely outcomes and the values represented in those choices? They might but, when one faces a press without the time, effort or energy to report on those nuances, the politician likely to grab the headline is the one who speaks in headlines. In part, Harper’s government speaks in ‘tough on crime’ language because the press is willing to report it that way.
My thinking is that we need ways of having the real debates which sidesteps the evasions perpetrated by the political class and facilitated by the press. Here’s the conclusion from the first draft of the proposal, which gives a sense of my intuition:
…the promotion of public knowledge is the most, if not the only, effective method of intervening in the toxic relationship which currently exists between politicians and the press. Without public knowledge and support for it, the idea of democracy becomes a perversion, where the public is forced, essentially, to guess about whether their representatives have done a good job. At the extreme, the absence of public knowledge turns representative democracy into a farce. The goal is not to get politicians to speak in full sentences and explain everything they do to the public. The goal is to give the public meaningful access to the diversity of questions that can be asked, the answers that might be given and the impact of making those choices, when they are making political contributions to the design of public life. Worrying about politicians puts the cart before the horse.
How are we supposed to go on and keep trying at anything when there are things in the world that are so much better than anything we will ever be able to do? And how are we supposed to keep going on, with all the terrible things that we do to each other and the sense of loss that comes with trying to make it better?
When we try, we feel not a sense of satisfaction, but of having done too little. Raoul Wallenberg hands out passports to Jews in Budapest and it is 1944 and it is 1945 and maybe he was a spy for the Americans and he dies in a soviet prison and these thousands of Jewish lives were saved and he hid them in buildings rented out, 20 of them, 30 of them, and they had names like ‘the Swedish Library’ and ‘the Swedish Research Institute’ and they all had giant, oversized Swedish flags hanging out front and it was just this open secret, 10, 20, 25 000 jews with Swedish passports living inside these buildings in Budapest until the Soviet army showed up 6 months later.
He climbs on top of a train, and the police are shooting at him and maybe they are trying to miss. They don’t hit him and he hands out dozens, hundreds of passports to their upstretched hands and then the Germans let them out because you don’t shoot the Swedes, because they are neutral and it just doesn’t make any sense. But if you close your eyes you can kind of imagine it happening, like it says here on wikipedia ‘the Germans and the Arrow Cross were so dumbfounded they let him get away with it.’
And you just kind of realize that you can try all you want to be that good and to make a difference like that and then and then and then.
It’s just not reasonable to be the kind of breathless, sensitive young person who at 14 watches Schindler’s List and then just sits in the kitchen crying and just kind of chokes through sobbing breaths while his parents stare at him somewhat dumbfounded because maybe you remember that Schindler at the end says ‘I could have done more’ and I, this 14 year old, can’t even talk to them and then my sobbing turns to weeping and I look up at them. It’s awful because I have a hard time even believing it myself, and it’s not that I love who I am now, but I do love who I was then because the whole world was open to him and he could have done anything, he could have ridden a mule across the Andes, become a champion kick boxer, sailed to China and he, I just never thought seriously about anything other than this at the time, says through the tears ‘I should be doing something. I should be doing something and I just don’t know what to do. What if I don’t do enough?’
As if there was some measure. Here is Howard Zinn reminding us that the world is backward, because the wrong people are in jail, and the wrong people are out of it. The United States has almost 3 million people under incarceration, had in 2008 almost 1.5 million adults in prison and 100 000 youth in prison and here’s the other thing – they execute children who’ve probably done terrible things and in many ways they’re not children anymore by the time they get sentenced but the government puts them under sedation and then they give them painkillers and then they put poison into their blood streams and they never wake up. And people say ‘they should have known better’ but that’s just it, they didn’t know better. If they had known better they wouldn’t have done it. And the government poisons these young men and they are broken and we have failed them, even if it’s not your country or mine exactly.
They execute men who grew up sexually abused and burned and ignored and mistreated who have grown up crazy and twisted and dissociated and they do terrible things. But if they are monsters did we make them that way and what’s our duty to them now and if they aren’t monsters then how can we kill them when they are defenceless? And now 62% of Canadians say that they think we should have the death penalty for murder and people think there should be the death penalty for rapists, just for good measure. So in this old video, Michael Ignatieff says in this clinical and detached way that we shouldn’t have the death penalty in Canada because it’s irrevocable like we might make a mistake and how can he be so cold? What makes it so that he can have talked to these people in Iraq and in Kosovo and in Croatia and all he can say is with like, surgical precision as you would say to someone who suggests that maybe the engine needs replacing that ‘well, that seems a pretty rash measure.’ Why can’t he just say with his head tilted that we can’t take it upon ourselves to kill people, to purposefully snuff out their life when they want to live, we can’t do it, because it’s wrong, because it’s wrong, because it’s wrong?
And I know that the answer is the same as the answer to why there are now almost 1 in 100 Americans incarcerated and yet none of them are George Bush or Dick Cheney. Because those of us who engage ourselves in politics just have to accept the political expediency of if you kill 600 000 people in an unnecessary war and hold people without trial and then empower people to torture them, then you get paid $400 a ticket to speak but in California if you shoplift three times you go to jail for life. Thousands and thousands of people are in prison for minor drug-related offences and yes, drugs are horrible for a lot of people, but then how is Tony Blair is a free man?
And you struggle every day with the question ‘what am I supposed to do’ and then you read too much and you watch too many movies and you listen to too much music and you find that you can talk about anything and you can talk at length about the qualities of any of this litany of things. You learn from Bourdieu that taste is a product of class and privilege, and yet you believe that the art, the literature, the music matters – that it is right, that you haven’t just soaked up the preferences of your parents. And yet…
There are these moments in books, where Gatsby’s boat beats on against the current ceaselessly into the past and now, here, in Helen DeWitt, we have this just incredible tour de force, a book that starts strong and almost every page is better and better and reading it makes you want to be better. Because her candidates are not better at, they are simply one after the other better. The hero is the hero by becoming, not by being already.
And next I visit Rod, who’s is really no slouch himself when it comes to just being impressive and prolific and thoughtful, and I am only 90% of the way through her (DeWitt’s) book and – take a breath – it’s called The Last Samurai and I ask Rod ‘what should I read?’ I want to know about the law, I want to understand what it is I am supposed to do and what it has to do with the law and how we can be good and how we can make this place we live better. I am complicit in its shortcomings and we are all complicit in them and we could do so much better than all of this suffering. I am breathless and I am weak. I want to try again. Fail again. Fail better. My question to him is about the law and it is not about the law. It is about practice, what we do, the terrible things that we can do to each other and that we do to each other and the small kindnesses and insights and braveries that can overcome it. I tell him that I have decided to spend some time thinking and I tell him some of the things that I have been thinking about and some of the things that I have been reading. He puts his hands behind his head for a moment and then he chuckles and then he screws up his forehead. He says Hmm and he says this is like a desert island book and he says. I say it’s not like a desert island book, because I have time, and he says before I finish Beethoven’s sonatas. And I say I don’t read music and he says the full collection of Walker Evans and I say I don’t know who that is and he tells me about Walker Evans, who narrated by photograph the death of the American farm. And he says you want something with words. And I say well and he says Paradise Lost and well, I guess I was hoping he would say Kelsen, who could tell me how they pretend the law is supposed to work. Or Bourdieu, who would tell me where the law sits inside everything else. Or some political theorist or legal theorist I hadn’t heard of or some other one that I know about but don’t really know about.
And now I am downloading 33 sonatas on 9 cds and I am looking at Walker Evans and then I finished the Last Samurai and now instead of writing a book about Burma, which is a story that someone else is telling already, I have to write about Job and how we can’t know God’s will and so we can’t presume to know whether anyone deserves what they get, and I have to write about humanitarian intervention because if we are going to demand the impossible then we should demand an impossible that doesn’t require us to drop bombs on people’s heads and I am going to have to write an essay in which I ask and try to answer ‘what makes Dan Deacon work?’ and then I am going to have to spend 33 hours or so trying to listen to Beethoven and I am going to have to read Paradise Lost and I am going to have to try to tie it all together because that’s what being honest about the question ‘what am I supposed to do’ means. It means that I can’t presuppose that any of this stuff doesn’t matter to that question.
I tell Rod about Wallenberg, or that I plan to use Wallenberg in something and he says ‘or who they say he was’. And I say but I don’t want to use Wallenberg, I just want to use what they say about Wallenberg. And he says well, but we should celebrate the story and not the person and I say yes exactly because for me, it is the story that matters, it’s a good story and he says well yes but what if so was Mein Kampf’?
And I think for a tiny second that maybe we need to be sure, that I need to be more sure than just it’s a good story. But then I can’t think of any way to be more sure than that so I say ‘but my story is better’ and he says yes and then he says that’s the right answer.
So I try and commit to writing better stories but I know they’ll never be good enough and it’s almost as if you could die. But you can’t, because, well, then why bother with all that blue and gold?
Adapted almost completely from my piece in the Faculty of Law student paper, the Ultra Vires. I know, it’s a bit late considering the last two weeks of primaries, but I stand by my analysis. Plus some of the links are worth reading.
It’s down to Hillary and Obama and a plurality of students at the U of T’s law school, like most Canadians, has thrown its support behind Obama for President. We’re in good company: the popular video
riffing on the recent Obama ‘Yes We Can’ speech features Scarlett Johanssen, the woman who plays McDreamy’s ex-wife from Grey’s Anatomy, some familiar looking white guy pretending to play guitar, and of course the video’s producer, will.i.am. The Grateful Dead have thrown their lot
behind Obama, though we’ll have to take their word that Jerry sends his best to the campaign from his great tail-gate party in the sky. The support of Joan Baez
means an end to self-imposed exile from party politics.
I’m backing Obama too, though, on the basis of his strong anti-corpocracy message, I was a supporter of Edwards until his exit from the race two weeks ago. But I’m doing more than supporting Obama’s candidacy. I’m going to make the call – he’ll get the nomination. I’m currently batting 1000 in such predictions: I could have been two bits richer if someone had put money up against my call for Dion in the recent Liberal leadership race. As I suggested, the combination of anti-Rae and anti-Ignatieff sentiment combined to put Dion, no matter his failings, in the hot seat. The result was more complicated: without Gerrard Kennedy’s endorsement in the closing minutes of the Convention, I might have lost that bet.In that way, Obama has something in common with Dion: the strength of a key Kennedy endorsement or more exactly, the support of a handful of them. Though the clan is divided – with the noted environmental activist Robert K. Jr. backing Hillary – the endorsement of Ted Kennedy, JFK’s daughter Caroline and Maria Shreiver will certainly give a boost to the Illinois senator, not least because of skewed media coverage of the matter. Despite the split in the Kennedy support, there is no doubt that the shine of Camelot has been lent to Obama, not Hillary.
The candidates aren’t that far apart on policy. Since the beginning, the choice between the two has seemed like a choice between hope and experience. Ezra Klein puts a finer point on it, colouring the choice as one between Clinton as manager and Obama as visionary. There are good reasons to support a manager for President. America has painted itself into a corner in Iraq, flushed its economy down the toilet while running its debt up to unfathomable numbers, and tarnished its international reputation through divisive unilateralism, de facto endorsement of torture and spying on its own citizens. Supporters of Hillary point to her experience as proof that she will be a steady hand at the tiller while America tries to sail out of these shallows. She is, for Democrats, the ‘safe’ candidate. Obama, on the other hand, is so full of enthusiasm that (no exaggeration) he brings tears to the eyes of many Canadians with hope about what the United States can be.
Writing two weeks ago, one day before the Democratic race was shown to have not one but two horses, Michael Chabon suggested that arguments against Obama were pragmatic, not substantial. Sure, his friends said, Obama might be charming, intelligent, and sincere, but he is too good to be true. Someone so nice can’t cut it in the snakepit of politics, they said, and Democrats need someone who can win. His speeches may have inspired famous Californians to march to the beat of a new drummer but in American politics, Hollywood support is often a burden, not a blessing. Up until last Tuesday, arguments against Obama were founded not on his character or on his potential as President but on his ultimate chances as Democratic nominee.
Here’s the catch. Americans are ready for a Democratic president. Polls say that they’re ready for change, independents are voting in record numbers in democratic primaries, polls have the democrats in the lead, and election markets have a democrat taking the prize by a 50% margin. More importantly, Hillary may be slightly ahead of Obama in polls among Democrats but American voters, buoyed by McCain support over Hillary among independents, are much more likely to elect Obama as President with McCain as the Republican nominee.
Until now, Democrats have supported Clinton because they thought that Americans prefer safety over promise, security over potential, sound mind over the possibility of something greater. Polls show the opposite, that Americans as a whole, not just Hollywood, much prefer the visionary to the manager. In short, with McCain as challenger, Democrats can choose the ‘safe’ candidate who is more likely to lose, or take a risk on someone their fellow Americans like and who, in their hearts, they already like more, too. Even the persistently self-defeating Democrats can’t screw this one up.
Who are these people?
It is eminently logical that the reading comprehension tests scores of children and adults alike increase according to the time they spend reading for pleasure. More, it is not surprising that children with more than 100 books in their home score markedly better on standardized tests, including math tests,, than children whose parents own fewer than 10 books. And, especially for those who us have attended college, there is nothing breathtaking with this final conclusion, which along with the first two bits of trivia comes from a study by the United States National Endowment on the Arts discussed here in the New York Times:
students who lived in homes with more than 100 books but whose parents only completed high school scored higher on math tests than those students whose parents held college degrees … but who lived in homes with fewer than 10 books.
Thus my opening: who are these people? The correlation is remarkable only in the plainest, “notable”, sense of the word. What is breathtaking is not the conclusion, but the fact that there is a significant cohort of college-graduate parents who own less than 10 books.
I can think of only two even vaguely believable explanations for the existence of these people. Completing college is no guarantee of economic success. Perhaps, facing the slouching, lurching beast which is poverty in the United States, and specifically caught between its twin jaws of a pitiless labour market and an increasingly toothless welfare system, some college-graduates may be included in a sizable cohort priced out of books, as if they were only a disposable luxury.
More likely, in response to a rising tide of unnecessary credentialism, these parents participated in four years of post-secondary schooling so mind-numbing that, instead of feeding a flickering flame of passion for learning, the experience so finally smothered whatever academic spark they left high-school carrying that they respond to books in their home not with an inflamed literary temperament, but a more literally pyromaniacal urge.
Critics of the study suggest that the authors under-measure internet reading – though if my writing is any example of what is available, then we can be sure that writing on the internet is no substitute. Books are, the critics argue, a thing of the past. However, the conclusion about such correlations show that books still matter, and for children they matter at home.
There is a bright side, in the form of a clear lesson for all of us: if one wants to avoid a child so precocious that she corrects grammar and regales with trivia, the choices are to sell off one’s Hawking, Hemmingway, Chomsky and Chaucer, or to put them, along with the Cat in the Hat, under lock and key. At least until standardized test day. (via Arts & Letters daily)
If democracy works at all, and MMP fails, we can just kick the bums out, and go back to our charming, ineffective, tradition.
The core argument underlying my support for the proportional representation proposal being put to the vote on October 10th – which will, with luck, ‘drag Ontario politics out of the 17th century and into the 21st – is laid out in the Ultra Vires here. Questionable title aside, included here are the sources and further discussion promise in the authornote.
To an accusation of ‘intellectual dishonesty’ received for this criticism of Urqhuart, which now includes a link to the original article, where, I maintain, he relies more on name-calling and misrepresentation than argument:
Besides those like Ian Urquhart who seem to get starry-eyed over the charms of any tradition, no matter how ineffective the institution…
I depend on statements such as these:
The system can lead to permanent minority governments and a proliferation of fringe parties;
which, in the middle a news article (describing the new proposal as “radical”) seems to fall short of reasonable standards of journalism, or argument, for that matter, especially when, as I stated in the piece, the proliferation of minority parliaments under proportional systems is debatable. Perhaps more blame might be laid on the Star’s editorial board than on Mr. Urquhart, who has remained silent on the issue for at least four months, especially since I view Mr. Urquhart’s opinions as generally insightful and well-informed.
To the core of the argument: some might disagree on the nature of democracy itself, but that’s worthy of a much longer article. However, even given support for the idea that debate, deliberation and consideration are as much, if not more important to ‘democracy’ than plurality voting systems unfortunately doesn’t dispose of the advisability of switching systems. Here, repeated, are the two strongest arguments against the October 10th proposal:
First, because the system will use party lists, MPPs may be less accountable to the ‘local constituency associations’ which this coalition somehow believes holds sway now. And because of the (debatably) higher likelihood of minority governments under the new system, they rail against the power that might be held by small parties, while discounting the unrepresentative sway held in the current system by large parties.
The real weakness of the proposal – the difficulty of almost any proportional representation system – is in choosing who gets the seats not allotted by local election. Clearly, opposition to party lists is about more than just accountability. While supporting ‘principled leadership’ over ‘administrative efficiency’, Lorne argues that party lists will only exacerbate the as-yet unquenched tendencies of parties toward corruption, nepotism, and personality-cultism, fed by a power-seeking motive which will only become more lucrative under the new proposal. Instead of inspired voices willing to spark public debate, lists will quickly fill with Machiavellian autocrats and a coterie of clashing sycophants. Underlying a belief in this process is a clearly identifiable incentive: with guaranteed access to at least partial power, politics inside every party will start to become personality-based, with those close to the core winning the spoils: almost-guaranteed seats.
This guy is likewise assured that party lists will toss Ontario head-first into an endless night of the long knives.
Yet with moderate regulation and moderate party discipline, the party list system could inspire the grassroots to seek out principled, eloquent representatives of the issues important to their party, instead of aligning around local level incumbents who are almost impossible to replace. If parties realize the potential of the list system, then conventions could become more like leadership conventions with many winners, instead of half-rigged races where the top dog also gets to choose, according to their personal motives, which contendors come in second, and third and fourth…
Perhaps Lorne’s experience with the Liberal party leads him to see dark days if the proposal wins, where I see real possibility of a passionate, informed public discourse. The NDP, despite attempts from the centre to manipulate results, has been surprsingly democratic of late.
Ultimately, the difference is, I’m willing to take the risk for the sake of democracy, and for the possibility of ending the ‘politics of fear.’
More on Arrow’s Democracy Paradox here, and on deliberative democrats here. An exciting proposal for more democratic politics, tangent to the electoral system proper was proposed in Fiskin and Acherman’s Deliberation Day.
For a decision to bring the re-opening of community centres to a vote in the next two weeks, Toronto’s Mayor Miller has been accused of bowing to pressure and flip-flopping on the issue.
It doesn’t really matter how the Star swings this thing. The past three weeks has been an act of brazen, awesome political theatre on the part of Miller. For those opposed to his ends, perhaps ‘shocking’ instead of awesome.
Miller did exactly what he needed to do to win the necessary support for the new taxes in the upcoming October vote: put a camera-ready service, that the middle class was willing to fight for, on the chopping block for – wait for it – a total of two Mondays.
Now, Miller may come off looking like a ‘flip-flopper’ or an opportunist, a political hack. Royson James, if he hadn’t already reached the limit of his ire, would probably have reached it after this series of decisions. But the Mayor has also tied serious, meaningful, painful service cuts to the taxes he wanted – just in time for the October vote on those taxes. Who would want to be the councillor voting for the re-closure of the community centres, after being on the local news for two weeks speaking out against those cuts? With three years left in his term, the taxes will still be around when the Mayor is done his, but the two Mondays without community centres will be gone from collective memory.
So, Miller ‘loses’, but he gets what he wants, which is what the city needs. And he’s still Mayor. Cynical? Sure. But nowhere near as cynical as all the councillors who voted against the proposal without offering alternatives, who changed their mind on the vote, losing the city $60 million this year, and who have focused on trashing the Mayor to their own political gain instead of mounting either i) support for the new taxes or ii) support for a meaningful alternative. Sometimes, when you’re dealing with whining children, you’ve got to play headmaster. Which he has done with style.
So, good on you, Mayor Miller. Bring on the new taxes.