Monday, 23 November 2009

Publicity and Hate

The last posting referred to Jeremy Waldron's Holmes Lectures and I intend to respond again in this posting to one of them, focusing this time on the second one. I should first point out that they are all available and linked to both as papers and videos on the Political Theory - Habermas and Rawls blog and I would like to thank Tim Waligore for drawing these lectures to my attention.

In his second lecture Waldron makes two points that I wish to respond to here, the first concerns the relationship between hate and publicity and the second the relation between hate speech and hate crime. The connection between hate and publicity is powerfully made in the image of racist wolves calling out to each other over night. The main point Waldron brings up with regard to the question of the regulation of hate speech concerns the fact that such speech should not be seen as primarily private in nature but as public. The sense in which he presents it as public is in terms of its possessing an intention to summon up a certain kind of environment characterised by its own notion of a public good.

The way in which this idea makes sense is in terms of the point of such speech being to suggest, as Waldron puts it at one point, that the struggles of the past (including such things as segregation, the persecution of minority groups and slavery) are not over and can and should be re-opened. Along with this is the creation of points of solidarity between those who express such hate speech to encourage each to "come out" as haters and thereby to consolidate and confirm each other in this identity, an identity that forms part of the nucleus of the type of society the bearers of such attitudes would like to create.

This point about the inherent publicity of such hate speech is, in general, very well-made by Waldron and points to a further characteristic of the need to think publicity as a key value in political society. Previous postings discussed both the positive and negative accounts of publicity Kant provides in Perpetual Peace and what Waldron's discussion brings out well is the understanding that it is not just with regard to values that have a positive valence that such criteria have significance. The understanding of the action of hate speech as a public action that intends to orient general society in the direction of its aims is a sound one and explicates well why members of minority groups feel threat from the presence of such "speech" (in the circulation of writings, posters, marches and symbols).

A second important point that Waldron refers to in this second speech concerns the distinction between hate speech and hate crime. Whereas the former is evaluated in terms of intention but not motivation, the latter, he suggests, does require evidence of motivation. The intention in the former is like the intention at work in public reason generally (as indicated in my previous posting on intention not being understood as "private"). It does not require investigation of "motives" understood as inquiries into the mental states of someone. Hate crime, by contrast, he suggests does require understanding of motives. The suggestion that hate crime requires reference to motives is not as evident, however, as Waldron thinks. Surely it will be the case that such crime indicates that someone intended harm to another and that such harm was based on response to salient characteristics of another. However, the fact that the crime involves harm and intended harm does not distinguish it from hate speech. So it must rather be because the harm was intended due to the salient characteristics of the other that is thought to involve motivation. This need not follow since the identification of the salient characteristics as a ground for attack can be manifested without reference to the "inner" workings of the attacker. Shouting certain words or slogans for example could well be sufficient as could distribution of literature prior to the attack that showed the intent of hate speech. So whilst the argument in favour of seeing hate speech as public is a good one the distinction between hate crime and hate speech offered does not convince me.

Sunday, 22 November 2009

Dignity and Status: Kant and Waldron

In the course of giving the first of his Holmes Lectures at the Harvard Law School Jeremy Waldron makes a distinction between two conceptions of dignity. He mentions on the one hand the Kantian view of dignity and on the other the one that is (or ought to be?) at issue in law and civil conduct. The distinction is presented as being that on Kant's philosophical view it follows that dignity is something inherent in each of us as human beings whilst in the law it is rather the case that dignity represents a common status that we possess but which is not merely inherent in us but rather indicative of a certain achievement.

Waldron's first lecture raises a number of important issues, too many to be addressed in this posting which is why I wish merely to raise a query concerning this distinction. It appears to be based on taking the Kantian conception of dignity to reside primarily in a general picture of practical reason whilst the legal view of it that is raised by contrast is rather one that defines and describes a social standing and is hence not encoded in a general picture of practical reason. In response to this I want to raise a substantive point concerning the conception of right that Kant himself worked with.

Waldron's general concern in the first lecture concerns a certain kind of defence of "hate speech" legislation on the grounds that what is at issue in it is not an "intention" in the private sense on the part of the speaker but rather an effect that is at work amongst those to whom such "speech" (normally a form of writing) is addressed. The effect that is at work is one of reducing the respect shown certain members of minority groups such that they will not be taken to have a legitimate right to equal citizenship rights. As such this kind of "speech" undercuts the sense that there is a social contract to which all have a general kind of connection with. Since this is the point of the "hate speech" in question it aims to undercut "public order" not necessarily in the sense of wishing to instigate violence but rather in that it suggests that some are not truly within the bounds of the order that has been specified as public or not there in a full sense.

Waldron's general defence of "hate speech" legislation in these terms has much to commend it but does not fit well with his designation of the Kantian view of dignity as something generically distinct from the legal notion of dignity as a status and achievement. It is correct that Kant speaks of dignity in terms of his general picture of practical reason and in those terms it is presented as something of incomparable worth that we are all possessed of. However Kant's general picture of practical reason has to be related to his view of right. When we look at his view of right we find a conception of it that shows that there is Kantian precedent for the "legal" conception of dignity that Waldron speaks of.

In Kant's discussion of the preliminary concepts of the "metaphysics of morals" there is a definition of personhood that determines a person as someone whose actions can be imputed to them which leads on to the sense of a person as someone subject to no other laws than those they give to themselves (autonomy). This notion is important in connection with Kant's subsequent notion of right though it is far from equivalent to it. When Kant turns to specifying the notion of right it is done in relation to a "universal law of freedom" which involves coexistence of each freedom with every other (in the universal or supreme principle of right: Ak. 6: 230). Since this coexistence requires that right be founded on mutual restraint that is based on the ground of each person's freedom then it follows that for a legal order to exist is for the status of personhood to have been given form in such an order. Hence, legal order is itself a general achievement.

Kant's fuller account determines this order through notions of equality, freedom and independence (e.g. Ak 8: 290). It is true that the view of the last of these notions is problematic (and alters between the essay on theory and practice and the Metaphysics of Morals) but the notion of equality involved, as distinct from that of the freedom, is grounded in the order of the law whilst the freedom (which is recognised universally in human beings) is something that the law "restricts and realises". If we see the law as that which gives freedom its substantive content but also as something that requires equality in its nature then it follows that the Kantian view of legal dignity is one that matches the achievement sense given to it by Waldron.

The "hate crime" problem that arises from being based on the attempt to either reduce the scope of public status given to a member of a group or to find a way of expelling them from that status as such does thus violate the sense of equality of each before the law. In this respect then there is congruence between the Kantian notion of dignity and the legal sense given to it by Waldron. I won't here expand further on the question of "hate crime" though the nature of it (particularly in genocide) is something that is worth consideration in terms of its boundary and limit since it does present itself as one of the ways the social contract can be breached.

Friday, 20 November 2009

European Union Presidency

Somewhat predictably the EU has appointed as President and Foreign Secretary two people who have virtually no international profile and the emergence of the names in question is reminiscent of the way the British Conservative Party used to operate up until the late sixties. The names came forward as a result of back-room dealing and pressure from the leaders of France and Germany. The prospects of a large candidate taking the position, that is, someone with high-profile internationally, were stalled early.

It is worth asking the question as to why it is that the leaders of the EU operate in a fashion that ensures that these newly created jobs have to be given to be people with such little profile and selected in such a secretive way? The former question relates to the whole problem of the lack of democratic legitimacy of the EU. It originated as a trade bloc and despite the accusations (common under the last Conservative government here in the UK) of a "federalist" agenda it has shown little appetite for becoming a coherent political bloc. The selection of people to fill the roles in question who have such little general international standing is reflective of the fact that these posts are filled in a way that itself lacks democratic legitimacy.

The EU is run by the Council of Ministers: a Council that operates by appointments from each of its constituent members. Effectively the real decisions are all made by the leaders of the big countries with France and Germany the twin motors of the organisation for many years. The European Parliament, the only pan-European body that has democratic standing, has been consistently side-lined although it is responsible for generation of legislation that does pass into domestic law in the constituent member countries. A high-profile European Parliament whose proceedings were broadcast on national TV and radio stations would be quite a creature that would have a basis for generation of pan-European politicians. This would, naturally, as a result give this body pre-eminence over national parliaments and this is why it is resisted by national governments.

In lieu of such an expanded profile and role for the European Parliament it remains the case that key decisions concerning positions such as that of the new Presidency will be taken in secret. This is a serious violation of the need for publicity and ensures a continued "democratic deficit" in the EU. Even were the "right" candidates chosen it could only be due to accidental convergence of interests between member countries. Without reform of the kind indicated here the role of the EU will not merely fail to match the democratic credentials of its constituent members but it will remain virtually impossible for it, as as body, to act coherently or with a general agreed purpose. This is good news for states such as Russia who operate by dividing the EU states from each other but very bad news for any one concerned that political mechanisms that reflect publicity should be allowed to grow.

Finally, for some reflections on reasons why the choice of the President is bad for Belgium see Crooked Timber.

Thursday, 19 November 2009

World Philosophy Day

Today is the fourth World Philosophy Day as announced and orchestrated by UNESCO. The events listed by UNESCO for today are centred on Russia though there is also included a list of colloquia throughout the world including a celebration of the 150th anniversary of the publication of John Stuart Mill's On Liberty and extensive discussions of the question of teaching philosophy to children. These events are welcome, as is the general intention of UNESCO to celebrate philosophy as a discipline and activity.

It is the case, however, that the fact of World Philosophy Day should also mark an occasion for philosophers to actively consider the question of what philosophy offers to the world and in what ways it can, has and will relate to the prospects of the world becoming, in some sense, a "better place". This is a topic to which I have personally devoted some thought and it is one of the bases of the formation of the series I am general editor for at Palgrave Macmillan: Renewing Philosophy.The series was and is intended to be a show-case for philosophical work that does one of two central things: 1) reflects in some critical and self-conscious way on the legacy of modernity; 2) demonstrates in some sense an engagement of philosophy with contemporaneity. 12 books have been published in the series since 2002 and a thirteenth is already cleared for publication next year (with two others currently close to also being cleared for next year). Since it is the only philosophy series dedicated to the pursuit of showing how philosophy can renew itself by means of contact with modernity/contemporaneity I urge all readers of this blog to check it out, think about looking over the books in question, borrowing them from libraries and maybe even purchasing them. Advert over.

Staying with the theme of such a relationship between philosophy and the world, the other significant question here, and one this blog is specifically aiming to try to address, concerns how philosophy can consider, in an increasingly globalised world, the condition of thinking in an international way. Obviously many types of response to this question are required but that the Kantian tradition of thought has a serious focus on the problem of international conditions should be evident enough as should the need for such a focus to include more specific thought concerning the nature of "public philosophy". By "public philosophy" I don't necessarily mean thoughts that are aimed at or could be understood by some presumed "general" public. I rather am thinking about a form of philosophy that can specify in various careful ways the nature and conditions of "publicity" itself. That this was one of the opening questions of this blog will be evident to regular readers. Expect more on it in future and don't forget the key motto: Sapere Aude!

Friday, 13 November 2009

Perfidious Gaul?

Reading through today's copy of the International Herald Tribune I came across the following article suggesting a continued pattern to French foreign policy in West Africa. The pattern is well put in a citation from the piece by Mamadou Diouf as indicating that the apparent champion of the rights of man practices a politics "absolutely contrary to its principles".

Thursday, 12 November 2009

Publicity and Intention: Kant and Pogge

In an article that has been printed in a number of places on the question of whether Kant's Rechtslehre is a comprehensive liberalism Thomas Pogge inserts a note that specifically addresses the question of the exclusion of "inner states" from the domain of right. In this note (note A) Pogge makes a number of assertions concerning this exclusion that strike me as not only false but as indicating a serious misunderstanding concerning the relationships between "inner states", intention and publicity. In this posting I want to outline a) the basic argument Pogge makes; b) the reasons why it is systematically misleading; c) the preferable way to understand the relationships in question.

A) In the second section of the "Introduction" to the RL Kant indicates that the concept of right, insofar as it is connected to an obligation, has to do first of all "only with the external and indeed practical relation of one person to another, insofar as their actions, as deeds, can have (direct or indirect) influence on each other" (Ak. 6: 230). Pogge initially presents this as concern with "possible conflicts among actions" and then inserts the note in which he presents "three interrelated mistakes" he takes Kant to make. These are detailed separately. The first "mistake" is to associate the claim given with a distinct one, namely that inner states "cannot" be made the object of external legislation. This is not, however, what Kant says and not, particularly, what he says in the passage Pogge refers to (which is Ak. 6:220). In that passage Kant says something quite different, namely: "Ethical lawgiving (even if the duties might be external) is that which cannot be external; judicial lawgiving is that which can also be external." (first italic in text, second added by me.) So the claim is not explicitly made with regard to "inner states" at all. Instead it is said that judicial lawgiving includes but is not only based on that which is external. Now, whilst this might appear to conflict with the first claim given in the previous paragraph it doesn't do so in the way Pogge has suggested. Pogge's first "objection" is raised in order to make room for laws that concern "findings of intent (mens rea)" . As I will show in (b) below Kant certainly thinks that this is included in his account of right.

Pogge next presents Kant's "second mistake" as to conflate the view concerning "the content of legal restrictions necessary for Recht" with a point concerning the "criteria involved in such restrictions". Apparently this claim is that whilst the content of the doctrine could well exclude "inner states", the criteria for its application could not and this is something Kant is said not to recognise. Again, as I will show in (b) this is false.

The final point is to the effect that there is a further claim made by Kant that legal restrictions and institutional mechanisms, in order to fall within right, are concerned only with securing mutually secure domains of external freedom. This is said to be distinct from the initial exclusion of "inner states" and yet to be conflated with that initial exclusion by Kant.

B) The points above are all problematic and work together to produce a confused account of Kant's view. The initial statement from Ak. 6: 230 concerns "deeds" and explicitly indicates that the interest in them includes both direct and indirect influence. This is the key to it, not an exclusion of "inner states" which are not here even referred to though it is true that Kant indicates he is interested only in "external" practical relations. The interpretation of how to connect this concern with such external relations to an interest in deeds is something we need to settle.

As mentioned above, the passages Pogge cites in support of his second point that Kant conflates the first point made at Ak. 6: 230 with a further, more exacting refusal to contemplate inner actions as even possibly the object of external legislation, is not (pace Pogge) made. Rather, Kant instead says that judicial lawmaking (Ak. 6: 220) can "also" be external whilst ethical lawgiving is something that cannot be external. So Kant does not claim, as Pogge says he does, that inner states are incapable of being an object of external legislation but that ethical lawgiving is not capable of being external. This is quite a different point and suggests a limitation on ethical lawgiving, not a limitation on right. Since it follows from this point that judicial lawgiving is something that is not only "external" then this passage raises a justifiable question concerning whether Pogge can possibly have understood Ak. 6: 230 correctly.

The second point Pogge makes is that Kant conflates the point about the content of legal restrictions with the criteria involved in making such restrictions. This points to an understanding of the criteria of them as ruling out any reference to "inner states" but seems to follow from the understanding Pogge has of Ak. 6: 230, an understanding we already have reason to question. In addition, with regard to the notion of "intent", it would be hard to make sense of the whole discussion of "contract" that Kant gives in his discussion of private right if we did not assume this notion as operative in Kant's analysis. So it is hard to see how it could possibly be correct to think that the criteria involved in right could ever have been conceived of by Kant in such a way as not to include it.

The third point Pogge makes suggests a conflation between the original point at Ak. 6: 230 and a further one of understanding something as within the province of right only due to the purpose of maintaining secure domains of external freedom. However the original point at Ak.6: 230 is made prior to any account having been given of securing domains of external freedom. This latter is given in accordance with the view that right is connected to an authorisation to use coercion (Ak. 6: 231) and it is only when this latter is given that Kant fully expounds right. Afterwards he does take there to be some connection with the view of right mentioned at Ak. 6: 230 but only on the ground that this connection has been made part of the argument and he does not simply assume that it follows from the account at Ak. 6: 230.

C) Given these misunderstandings on Pogge's part let's now try to clear up the confusions his account suggests between certain principles and their relationship. So, (i) what is going on at Ak. 6: 230 and what, if anything, does it have to do with 'inner states"? Here Kant is refining the concept of right and connecting it to obligation and the first step in doing so is to state that right concerns deeds that have direct and indirect influence. These deeds, as the later argument makes manifest, are ones that concern the limitation of the freedom of others and this is their connection to the later authorisation of coercion (Ak. 6: 231).
(ii) Ak. 6: 220 is where Kant explicitly includes promises as part of right as is necessary for his later treatment of contract. Since a promise is explicitly something that would fit the category of "intent (mens rea)" it is clear that Kant is here not making the point Pogge attributes to him. Kant is here arguing that ethics involves a claim without reference to coercive power. Someone can claim something as your duty even if there is no coercive way they can get you (or get others) to perform it. Such a relation to duty holds only with ethics and not right since right is a claim that requires reference to coercion. It is this necessary way that right relates to coercion that leads me to view the treatment of promising at Ak. 6: 220 as a first statement of the view of contract given later in the account of private right.
(iii) Finally, the reference to mutually secure domains of freedom is what is given by means of the authorisation to coercion. It is not that Kant takes this authorisation to follow directly from the claim to treat "deeds" that have direct and indirect influence. Rather, Kant first enunciates the universal (or supreme) principle of right and then arrives at the authorisation of coercion.

The fundamental problem with the reading Pogge gives concerns his conception of the domain of right as not being concerned with "inner states", a view that Pogge conflates with the argument that Kant cannot cover in his view of right such an area as "intent". In fact this is quite false as Kant refers to intent in various ways in the discussion of right, not least when treating contract. What is being ruled out of consideration from right is not the general and vague idea of "inner states" but rather reference to matters that are not capable of public attention. Right is concern with that which meets criteria of publicity: this is is what is key to it, not a dismissal of "inner states". Hence, when intent is measured by it, it is not understood in a way that requires simple reference to what is "in the head" but rather what can be shown to be the actions in question and where they were tending. So the notion of "intent" Kant is working with is one that would meet a Wittgensteinian understanding of "intent" not a Cartesian one such as Pogge seems to suggest is at issue. Intent has to be understood as that which is public and accessible by reference to evidence, not something only surmised on a "psychological" construal. This is key to seeing right as a public doctrine and failure to get this is at the root of Pogge's systematic misreading of Kant's notion of external legislation.

Wednesday, 11 November 2009

Moral Relativism and War Crimes (II)

For more details on the revisionist campaign with regard to Bosnia see the latest posting on David Campbell's site. In this piece the role of Noam Chomsky is detailed and cogent reasons given for why he should not be invited to give talks (as he has been twice) for Amnesty International are made clear. See the protest letter concerning the Amnesty invitation to Chomsky written by Ed Vulliamy. Finally, for an interview with Chomsky raising his stance on all this that was originally published in the Guardian but later removed from its website go here.

Saturday, 7 November 2009

Research Excellence Framework and Impact (III)

The latest issue of Times Higher Education features an article indicating that managers and academics are at logger-heads over the notion of impact assessment with managers being apparently sold on the idea. However, no manager is willing to be quoted on the topic. See the article in question here. Meanwhile, the same issue of the newspaper in question includes two letters attacking the general way in which impact assessment is being used as a measure of research quality, letters mentioned in this article. The first is signed by 48 people, including 10 Nobel Laureates and 26 members of the Royal Society. The second, more pertinently for the readers of this blog, is signed by all except one of the members of the last RAE philosophy panel, including my colleague, Professor Joanna Hodge.

However, given the insight into the general opinion the government has into evidence-based research, as demonstrated in its handling of the recent case of Professor Nutt, it is fairly evident that none of this will matter. They'll simply proceed in any case since none of the above have any right to be taken at all seriously. All of which demonstrates well what kind of political calculations really underlie the support the government is offering to "scientific" education. This is clearly something that really means: listen to managers, ones, that is, we have ensured will dance to our tune by means of financial incentives and ignore anything said by anyone who might have some means of being able to make evidence-based claims on the area.

Friday, 6 November 2009

The Categorical Imperative and Public Right

The conclusion of the first part of the "Appendix" to Perpetual Peace moves on from the consideration of sophistical maxims to their basis. However, whilst the second part of the "Appendix" will lead to presenting public right in relation to the general principles of publicity (first presented negatively and subsequently positively) the first part of the "Appendix" concludes by relating the notion of public right to the categorical imperative. This part of Kant's argument tends to get overlooked and is particularly significant in relation to those commentators who present Kant's account of public right as constitutively separate from his general moral philosophy.

The presentation of the argument has the following form. Firstly, Kant presents the need to distinguish between formal and material principles of practical reason. In so doing he formal principle is stated as the categorical imperative (Ak. 8: 377). The formal principle is next, unsurprisingly, presented as taking precedence over the material principle. The standpoints of the political moralist and those of the moral politician are next distinguished with the concern of the former presented as technical whilst the latter is moral. The former's problem is one of political prudence and all the concerns connected with this concept are stated to be as uncertain as the concern with happiness in general practical reason. By contrast, the problem of the moral politician is presented as requiring a search for justice as the precondition for peace.

The division between the two approaches is also then indicated to be the root of the alleged conflict between politics and morals. The conflict is based on seeing politics in a material manner whilst a formal approach to it, concentrated on the notion of public right, will accord with the formal approach to morals in general. This gives strong support to the suggestion that the Doctrine of Right should not be regarded as completely distinct from the general moral philosophy but rather as in some sense emergent from it as is suggested by the concluding argument of the first part of the "Appendix" to Perpetual Peace.

Wednesday, 4 November 2009

Professor Nutt and Evidence-Based Policy

The UK government recently took a brave and difficult decision. When faced with an advisor on the Advisory Council on the Misuse of Drugs who brazenly and openly dared to state that alcohol is a more dangerous drug than cannabis they took swift and decisive action. Abandoning all pretence of adhering to such a thing as "evidence-based policy" they proceeded to remove the only pharmacist on the Council thus ensuring that the Council no longer operates in accord with its statutory requirements. Faced with such decisive action taken in brazen disregard of evidence the opposition Conservative Party did the only acceptable thing: they spoke in favour of the government's action.

Incidentally subsequent to becoming involved in this incident another minister from the same government made a major speech on education policy. Disregarding the results of the last Research Assessment Exercise that demonstrated "pockets of excellence" across the whole sector this minister, Peter Mandelson, bravely followed the example of Alan Johnson (who was responsible for sacking Professor Nutt) and made clear that in future only the so-called "top" universities would be expected to engage seriously in research. By contrast, most other universities, and most particularly the "new" ones (at which there is most demonstrated evidence of value-added education) would, in future, be expected to concentrate primarily on sub-degree level education. This policy is not only developed in brave and principled opposition to the results of the last research exercise. It also ensures that most universities will be effectively penalised for any previous success whilst the "top" universities will be given further leeway to perpetuate present practices that resulted in their researchers last time being often deemed well below "excellent". Jolly good results all round and fair demonstration that the UK government is firmly committed to evidence-based policy and a scientific approach to decision making. And congratulations to the main opposition party in the UK for doing its job of agreeing wholeheartedly with the government on any subject where the evidence points clearly against their policy.

Monday, 2 November 2009

Sophistical Maxims

The next stage of Kant's argument in the "Appendix" to Perpetual Peace discusses the maxims that are adopted by those opposed to taking concepts of right seriously in politics. Kant reveals the conduct of these to be guided by three "sophistical" maxims. These are worth examining and listing in connection with the principles advanced by Kant himself.

The first is taking any opportunity to take possession without any sanction to do so. On these grounds the politicians in question can seize land from others and give justification for this afterwards. The key thing here is that the conduct is undertaken first and arguments advanced for it after. However, given that what Kant means here is that any argument is only allowed in the context of the facts having been first established in the way one wishes, what this really amounts to is a strategy of making the "facts on the ground" the basis for discussion independently of any analysis of the reason why the facts are what they are. Precedents for such a strategy are not difficult to find in the practice of states. The examples given here violate the 2nd preliminary article.

The second example is adopting the maxim of blaming the people for your own crimes or, alternatively, stating, as in the first case above, that human nature is to blame. The first strategy is calculated to either stir up rebellion in the people or instil despair whilst the second relies on the familiar "realist" view of humanity that denies the right of a transcendental perspective on humanity. Further, both are in violation of the positive principle of publicity.

The third example is one of adopting a general policy of divide and rule whether within your own state or in external states with the point being one of promoting power over right. This is clearly in violation of the positive principle of publicity though here Kant points out that it is only the failure of the maxims in question that really defeats those who adopt them.

Sunday, 1 November 2009

War Crimes and Moral Relativism

Last night I made the mistake of listening to BBC Radio 4's programme The Moral Maze. This was a mistake for a number of reasons. One of the key ones is that despite its apparent status as a programme that discusses "moral principles" it invariably is dominated by journalists, commentators and politicians who have the vaguest notion of what such things as moral principles are. The most striking example of this lack of sense of moral principle is certainly the Director of the Institute of Ideas Claire Fox. On last night's programme she advanced a view of international law and the notion of war crimes that amounted to the clearly relativist conception that it was intrinsically impossible to have agreement on what constituted "war crimes" so there was no point in trying.

Fox's concern with the issue of war crimes dates back to her previous role, highlighted on her personal description on the Institute of Idea's website with the magazine Living Marxism (later called LM). In her capacity of involvement with this magazine Fox was part of a campaign by this magazine in support of Republika Srpska's view of the internment camp at Trnopolje, principally by publishing in the February 1997 issue an article by Thomas Deichmann. Deichmann was a chief witness in the defence of Dusko Tadic at the International Criminal Tribunal for the Former Yugoslavia in the Hague. Tadic was charged with a series of crimes against humanity in the ethnic cleansing of Muslims from northern Bosnia and was convicted and sentenced to 20 years imprisonment. Despite the fact that Deichmann's testimony was in defence of a man subsequently convicted of war crimes he was presented by LM primarily as an "expert witness" at a series of trials the jurisdiction of which they were in the process of contesting.

The article LM magazine published by Deichmann alleged that ITN journalists had substantially fabricated a report concerning the Serb camp at Trnopolje and led to a libel suit against the magazine filed by ITN. The magazine lost this case against ITN, had a substantial award made against it and subsequently folded as a result. At no point during Fox's presentation of an essentially relativist argument about war crimes during the Moral Maze programme were any of her background in being part of a magazine that engaged so directly in defence of Republika Srpska mentioned. Due to this her argument could have appeared no more than a wooly attack on the idea that there could be such a thing as "international law" or any notion of standards of international justice. Such a position is problematic enough in itself but, when aligned with a past as a revisionist concerning the substance of the issue of the programme itself she emerges as someone with little credit in terms of addressing substantial moral issues.

The defence that LM magazine made of its original article in the libel trial was seriously intellectually confused since, during the course of the trial, it was admitted by both the editor of the magazine, Mick Hume (who now runs Spiked On-Line) and Deichmann himself that the camp in question was indeed a brutal place at which rape, beatings and murders (aka "war crimes") were, indeed, taking place. The primary argument they apparently made in response to ITN was that the Serb camps should not be compared to Nazi-style concentration camps with the implied suggestion that only these could be classed as being legitimately ones to which the term "war crimes" could be attached (a rendition further of Fox's relativist argument as given in the Moral Maze). As Fox put this point on last night's show, any mention of war crimes in connection with the Bosnian conflict suggests a connection with the Holocaust, a connection that she takes to "belittle" the Holocaust itself. This elevation of the Holocaust to an absolute status underpins the generally relativist view of "war crimes" otherwise adopted by Fox, Hume and Deichmann.

The general problem with the arguments of Fox et al and their presentation on a show apparently concerned with "moral principles" is connected to a parallel failure to investigate what is meant by "war crimes" when such are alleged to have been carried out by President Bush and ex-Prime Minister Tony Blair in the Iraq War. On the one hand, there are those who articulate a position of "war crime" or "illegal war" on the absurd ground that a war has not been ratified by the UN and on the other hand there are those who deny that the term "war crime" has any meaning other than political except in a specially sanctified "absolute" case that renders all other judgments merely relativist in comparison. Both such positions merit resistance and indicate a substantial need for concern with the vocabulary of "war crime" including a return to investigation of its meaning prior to articulating its use. For a more extended comment on the background, history and nature of the case LM fought and lost with ITN and the reasons for viewing it as particularly important in this area see two articles by David Campbell here.