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Monthly Archives: December 2010

This is a rather interesting article: http://www.theatlantic.com/magazine/archive/2010/12/the-danger-of-cosmic-genius/8306/3/

It describes Freeman Dyson, a gifted polymath on par with Jefferson and how he can still believe that global warming is a myth. Skip forward to page three (unless you wish to read more about Dyson who is a fascinating character; the article is very well written) where the article describes Dysons belief in an alternative to environmentalism.

I think the article doesn’t do justice to Dyson’s beliefs about global warming. I’ve never heard of them before – but it seems that Dyson does believe the world is warming. He simply doesn’t believe that it should be stopped – humanity can control global warming. Clearly his beliefs are very well thought out, if not necessarily well grounded in scientific and engineering fact. And they are probably beyond the understanding of the author of this article, who seems to be an ardent environmentalist himself and not a scientist.

(This is a long post, so if you are familiar with the issue or if you want to jump to my conclusion, the essence of this post is contained in paragraphs 13-16. But I think my strongest point is in paragraph 15. Why should governments be able to defeat constitutional amendments passed by the People simply by not appealing them? At the end, I have also helpfully attached a short case note on the decision in AOE v Arizona, which is the most relevant precedent on this issue. Another precedential decision is Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago).

1. Reader(s), you know that every now and again I like to make long, boring and rather irrelevant posts on gay marriage, particularly surrounding the case Perry v Schwarzenegger about the Proposition 8 constitutional ban on gay marriage in California. This is not one of those posts.

2. Instead, this is a long, boring and rather irrelevant post on whether the supporters of Prop 8 have standing to challenge Perry v Schwarzenegger on appeal. (“Standing”, btw, just means whether a person has the power to act as a party in a lawsuit). And, Reader, as you know, I have long-stated my support for legalising gay marriage despite the fact that it has been conclusively proven that there is anecdotal correlation between gay marriage and natural disasters like earthquakes and floods. But on reflection, I think that the Proposition 8 supporters should have standing to challenge the trial judge’s decision to support gay marriage.

3. The question of standing is almost always a very simple one. There will be someone who is injured and someone who cause that injury; the first has standing to sue and the latter has standing to defend and to appeal if he loses. The question, however, is complicated by those who wish to make it more complicated than it really is. What if there is someone who hasn’t suffered any injury but still wishes to sue? Can they have standing?

4. I think the easiest way to conceptualise this is the answer is ‘no’ riddled with a dozen loopholes, each of which has evolved with the times. So the case law differs markedly between the legal systems of the Commonwealth nations and its bastard offspring in the United States. But the essential issues (I would imagine) surrounding standing ought to be the same. The difference is that because of our different systems of government, the loopholes began differently and evolved differently. Of course, I do not proclaim to have any understanding of how standing works in America. They have crazy politicians and they have crazy judges. They are utterly unpredictable.

5. Prima facie, in Australia you require a right, legitimate expectation or interest to be affected either directly or indirectly in order to have standing (Bateman’s Bay Aboriginal Land Council v Aboriginal Community Fund). That means, for example, if a woman has an abortion, then a church cannot simply intervene (as they tried to do in Re McBain; Ex parte AG (Cth)). In other words, you require a private right or a special interest to be interfered with. In addition, public rights can be infringed.

6. In Australia et al, in administrative law, standing to protect public rights turns on whether you have the Attorney-General’s fiat (ie the AG’s permission to sue). And in time, that question evolved, now that the AG is no longer an apolitical person bound by strict conventions. A modern AG would obviously never grant his fiat to an action that could embarrass the government, so the question is now whether X should have standing despite the lack of fiat.

7. Of course, this loophole wouldn’t exist in the US, where the AG fulfills a very different role from the Australian AG. Indeed, in California, the AG is directly elected by the people.

8. In questions of Australian Constitutional law, the question never quite seems to appear. Because of the fused legislature and executive, the person who wrote the law is also the government who must implement that law. And implementation, in practice, gives you standing one way or another. Or, some law will affect you; therefore you challenge its constitutionality. But the question never seems to appear because the answer is always black and white. But the issue of standing is always there. For example, (some) academics had long speculated that the Commonwealth’s method of granting money to the States using the Grants Power was unconstitutional. But no one had standing to challenge it except the States themselves – and obviously, they’re never going to oppose being given money. So it went unchallenged until 2009 when constitutional lawyer, Brian Pape, received $1000 under the Rudd government’s stimulus package. And, because that $1000 was given under the Grants power, he had standing to challenge the constitutionality of the Act which allowed the government to give him that $1000. (Pape v Cth)

9. Of course, what I just said cannot apply to the US where the legislature and the executive are not fused as they are in Australia. In Australia, the person with >50% of the seats in Parliament forms government. In the US, the person who wins the Presidential election forms government – and those elections are separate to the elections for who sits in Congress. So perhaps, next year, the Republican-dominated Congress might pass an Act that Obama’s Administration will refuse to uphold. Then who has standing? And the question would probably be equally complicated if it is not a piece of legislation passed by a Congress of elected politicians. Because, let’s remember, Prop 8 was written (and voted for) by ordinary unelected people through California’s proposition process.

10. I should add also that there is (apparently) a distinction in American law between standing at trial and standing on appeal. Therefore, the supporters of Prop 8 had standing to defend the action at trial (even though both the then  Governor, Arnold Schwarzenegger and the then Attorney General refused to defend the action) via an amicus brief. But they do not have standing to appeal once they have lost. In a way, this makes sense. Defending an action is quite different from starting a new action in a higher court. If a plaintiff sues and there is no defendant, then to be properly informed then a Court should (and must) call a party to advise them of opposing arguments. That is the essence of the adversarial system of law. But starting a new trial is quite different. Apparently, there is Supreme Court precedent on this exact point – the unanimous SCOTUS decision of Arizonans for Official English v Arizona, which also dealt with a constitutional amendment passed by proposition ballot.

11. I will note, however, that in Australian law participation in an earlier stage of the proceedings is sufficient to grant standing. For example, in the case of Ainsworth v Criminal Justice Commission, a party was allowed to make submissions during a non-judicial inquiry and that was sufficient to give them standing during the later judicial inquiry and so on.

12. And in all that I have just said, nothing should be surprising to any properly trained Australian law student. But what is missing from their understanding is what ties all these threads together. And that is an understanding of why the requirement of standing exists. It has been held in Australia (and in the US) that the Courts will not give ‘advisory opinions’ because that breaches the separation of powers which exists between the judicature and the legislative/executive branches. An advisory opinion is where a person asks the Court – in this hypothetical situation, what would be the result?

13. The rationale behind Courts not ruling on advisory opinions is that it is not very judicial behaviour. Courts exist to resolve disputes, so if there is no dispute, then there is nothing to resolve. In the modern day, the ‘least dangerous branch’ (political) theory says that Courts are the “least dangerous branch” of the government and the most impartial because they can only react to cases that come before them. They have no power to seek out cases of their own accord – and this is particularly important in America where there is far more potential for abuse of judicial power. There are other reasons as well – preventing a multiplication of suits; because the adversarial system of justice works best when both parties are incentivised to make the best arguments because of the potential damage to their rights, interests or legitimate expectations.

14. But in the case of Perry v Schwarzenneger, how does that offend against the notion that there should not be advisory opinions? This is not a hypothetical situation, but a very real situation in which the marriage rights of very many homosexual couples will be directly affected. Are we content to let this District Court decision lie on one of the most contentious social disputes of the 20th Century? This case would be one of the most important cases on the Equal Protection clause in a very long time.

15. In most cases, the public interest should be vindicated by the elected government. And, if the government should decline to appeal then the remedy is not legal but political. Advocates for Prop 8 should place political pressure on the government to appeal or wait until a new government is elected. But, as Australian law recognises (by the evolution of the AG’s fiat exception) there are some times when this is inappropriate. Surely one of these cases is when the legislation (or Constitutional amendment) debated was created through a proposition ballot. That means, the People defied the government to create a law that the government itself did not pass.

16. Let’s choose a less contentious issue to talk about. What if the government refused to appeal against a challenge to a Proposition which restricted the powers of government (which were used for oppressive means). What if there was noone else with standing? The law would be struck down. And its not as though anyone could later revive the law once they got standing. And thus, the government could conspire to defeat the will of the People. More importantly, they could defeat the proposition process, a mechanism designed to grant the People additional power against the Government they elected. This is especially important in the US where their expansive Bill of Rights makes it far more important that Courts are properly informed of all arguments. This is recognised by the fact that US Courts are far more lenient with amicus briefs than Australian or Commonwealth Courts.

17. Of course, there are strong arguments on the other side as well. Allowing a party without standing (ie without harm to their interests) to appeal is just allowing busy-bodying. It allows Churches to challenge abortion laws and IVF laws (as in Re McBain) when the aborting mother was perfectly content to do nothing. Could future parties intervene into family court actions; into divorce or child protection proceedings? Or, in this case, perhaps they could challenge the rights of married couples when those rights cause absolutely no harm to the party attempting to sue.

18. Moreover, creating this exception would allow parties without standing to take over the mantle of government and assume its interests? Do we really want more supposed public interest groups abounding in the Courts? The liberal ACLU and its conservative counter-part, the American Centre for Law and Justice already clog the Courts with endless cases trying to push for one issue or another. They are politicising the Courts. Do we want to extend this further? The NY Times recently published an article saying that the US Chamber of Commerce’s very active SCOTUS practice has increased the percentages of cases falling in favour of corporations. (See here for a NYT article on the same issue back in 2008 by excellent legal commentator Jeffrey Rosen).

19. I think these objections all dissolve if you create a narrow exception to the standing rule for proponents of a Proposition initiative to appeal from a decision that has already been lost. How will it multiply suits if there has already been a law suit? It’s just extending the process upwards and obviously it involves an important issue if it was put to the people in a proposition ballot, so its probably worth the expense to the Courts. The ACLU or ACLJ can hardly use it to push any agenda that was not already pushed by the proposition itself.

20. Don’t get me wrong; obviously this is a complex and difficult issue. There are compelling considerations on both sides. On balance, however, I think that the decision in Arizonans for Official English should be overturned. Obviously, that cannot be done by the 9th Circuit, but the supporters of Prop 8 will simply appeal to the SCOTUS where it can be overturned. And, since it is apparently compulsory to quote Voltaire, I do not recognise the legal expertise of any lawyer who thinks that it is within the equal protection of the laws to deny homosexuals the right of marriage, but I will fight for his right of standing to bring his ludicrous arguments before the Courts.

Disclaimer: Again, I repeat, I have no knowledge of the laws of standing in the United States. This blog post is talking about whether, as a matter of policy, it is in the best interests of justice that supporters of a proposition initiative should have standing to appeal. Obviously, at trial the question will turn on the exact phrasing of Article III of the US Constitution, the prior case law and the wording of the California Constitution. Despite its length and prolixity, this article serves only as an introduction to the issue of standing.

Arizonans for Official English v Arizona (AOE v Arizona)

I felt that this post would be somewhat lacking without a brief summary of AOE v Arizona. In that case, an Arizonan proposition was passed which made English the official language of Arizona. A State employee, Ms Yniguez, sued Governor Mofford as well as Arizona, the AG and the Director of her agency (Yniguez v Mofford). The (Federal) District Court ruled the proposition unconstitutional. The AOE, who were the principal sponsors of the proposition, sought standing to appeal. The District Court found they did not have standing. The 9th Circuit Court of Appeals (the same Court which is now ruling on Proposition 8, though with different judges) found that they did have standing. The question of standing reached the Supreme Court, which made a unanimous opinion written by Ginsburg J.

In a strongly reasoned decision (the relevant parts are extracted at the very bottom), Ginsburg J. thought that being a principal sponsor alone did not grant a right of standing. The work and effort AOE expended to place the proposition before the People and to pass the proposition did not grant standing. Nor did the quasi-legislative role it played grant standing (even though State legislatures themselves have standing to defend and appeal the constitutionality of its Acts). Crucially, however, Ginsburg J. said

“We thus have grave doubts whether AOE and Park [the director of AOE] have standing under Article III to pursue appellate review. Nevertheless, we need not definitively resolve the issue.”

Instead, the SCOTUS decided the case was invalid for another reason. Because Ms Yniguez quit her State job, the appeal was on a hypothetical question. (Technically, this is called ‘mootness’ and makes the appeal an advisory opinion, which as explained is unconstitutional).

Therefore, the decision is not binding upon lower Courts though it is highly influential. Furthermore, because many of the present justices sat on that very decision, they are likely to reach the same conclusion. The list of Justices in AOE who still sit on the SCOTUS are Scalia, Kennedy, Thomas, Ginsburg, Breyer JJ. The new justices are Roberts CJ and Alito, Sotomayor, Kagan JJ. In other words, if the old justices vote the same way then the obiter in AOE will stand as good and binding law.

Even if AOE v Arizona stands however, the supporters of Prop 8 may still have standing. AOE did not participate in the original trial. If Australian law is followed, that should be sufficient to grant AOE standing. Needless to say, American exceptionalism would prevent any sane American judge from looking at Australian law.

Additionally, the main thrust of the decision was that this was required out of respect for the place of the States in the Federal system of government. In particular, Federal Courts should not make binding decisions on what a particular State statute means unless absolutely required. That includes deciding that a particular law means X and then deciding that X offends the Federal Constitution. I have no experience with this body of law (since there is only one common law in Australia and the High Court adjudicates on both State and Federal matters). Perhaps AOE v Arizona could be distinguished on this ground somehow (though I doubt it).

The meaning of the very same proposition was also debated by the Arizona Supreme Court at the same time, and the SCOTUS held that the Courts should have awaited the decision in that case before deciding constitutionality. That may also explain why some conservative justices voted unanimously – they may not necessarily agree that principal sponsors of proposition initiatives should not have standing.

Appendix

For a nice summary of arguments during the 9th Circuit Hearing on Perry v Schwarzenegger see http://www.keennewsservice.com/2010/12/06/prop-8-arguments-feisty-questions-on-standing-and-merits-for-both-sides/ (I found this after I wrote this article).

For the most relevant passage of AOE v Arizona:

Article III, §2, of the Constitution confines federal courts to the decision of “Cases” or “Controversies.” Standing to sue or defend is an aspect of the case or controversy requirement.Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 663-664 (1993) (standing to sue); Diamond v. Charles, 476 U.S. 54, 56 (1986) (standing to defend on appeal). To qualify as a party with standing to litigate, a person must show, first and foremost, “an invasion of a legally protected interest” that is “concrete and particularized” and ” `actual or imminent.’ ” Lujan v. Defenders of Wildlife504 U.S. 555, 560 (1992) (quotingWhitmore v. Arkansas495 U.S. 149, 155 (1990)). An interest shared generally with the public at large in the proper application of the Constitution and laws will not do. See Defenders of Wildlife, 504 U. S.,at 573-576. Standing to defend on appeal in the place of an original defendant, no less than standing to sue, demands that the litigant possess “a direct stake in the outcome.” Diamond, 476 U. S., at 62 (quoting Sierra Club v. Morton405 U.S. 727, 740 (1972) (internal quotation marks omitted)).

The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance. Diamond, 476 U. S., at 62. The decision to seek review “is not to be placed in the hands of `concerned bystanders,’ ” persons who would seize it “as a `vehicle for the vindication of value interests.’ ” Ibid. (citation omitted). An intervenor cannot step into the shoes of the original party unless the intervenor independently “fulfills the requirements of Article III.” Id., at 68.

In granting the petition for a writ of certiorari in this case, we called for briefing on the question whether AOE and Park have standing, consonant with Article III of the Federal Constitution, to defend in federal court the constitutionality of Arizona Constitution Article XXVIII. Petitioners argue primarily that, as initiative proponents, they have a quasi legislative interest in defending the constitutionality of the measure they successfully sponsored. AOE and Park stress the funds and effort they expended to achieve adoption of Article XXVIII. We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests. SeeKarcher v. May, 484 U.S. 72, 82 (1987). [n.20] AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article III qualified defenders of the measures they advocated. Cf. Don’t Bankrupt Washington Committeev. Continental Ill. Nat. Bank & Trust Co. of Chicago460 U.S. 1077 (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional).

Finally, here’s an article that properly articulates what I feel about Paul Krugman. http://faculty.chicagobooth.edu/john.cochrane/research/papers/krugman_response.htm#

Usually, to properly understand an issue, I try to read a left-wing and a right-wing perspective on things. For a right-wing perspective, I’ve been reading the Becker-Posner blog. It features one of the people I most respect, Judge Richard Posner who is variously a leading law and economics scholar, professor of law at Chicago Law School, a professor of economics at in the one and only Chicago School of Economics and a judge on the (Federal) 2nd Circuit Court of Appeals. Each week, Posner and Becker each write a post on the same topic which gives a vigorous insight into different (right-wing) perspectives on that topic.

Although Posner and Becker don’t always source their ideas, its always clear that certain economic models exist in the background. They outline their logic in explaining how and why they believe a certain thing. Even if you disagree with them, you can at least follow their steps and point out where the went wrong. And if you disagree with them, you will have to do something a bit more rigourous than say – oh, Posner, he’s Chicago school. He would say that!

Unfortunately, supposed Nobel Laureate Paul Krugman does exactly that. Krugman fails to articulate why he believes a certain thing – aside from asserting that he does. Reading his NYT column occasionally, he continually asserts that he believes the US stimulus package wasn’t big enough (and, now that the stimulus package is wearing out, he’s claiming he was right all along). And doing a quick historical search, I was unable to even find the article where he originally asserted that the stimulus package wasn’t big enough and why. All he gives us is the fact that “his model” says its not big enough. Well, frankly, that’s just not good enough. Yes, he’s a Nobel Laureate but we cannot simply rely on titles to let us do our work for us. Besides, it seems that he was one of those political Nobel Committee choices. I remember when he first received the award, my game theory lecturer mentioned that it was surprising because (despite his fame as a NYT columnist) he actually had quite a thin academic portfolio. He hadn’t written much outside his specialisation of New Trade Theory and not all that much within it.

And Paul Krugman is the master of the ad hominem attack, as the linked article details. And yet, his own writing falls far short of the mark. Krugman occasionally does give economic justifications for his beliefs – but its always at such a simple level he might as well not have done so. When he says that further stimulus (QE2) will not cause inflation, he merely states this is because “his model” (a phrase he uses far too often) states that this feeds into investors’ inflationary expectations which is exactly what is needed to kick start the economy.

Krugman does a disservice to the entire economics profession. Moreover, he does a disservice to Keynesians the world over. For those, like me, who rely on him to give a rigourous and reasoned defence of Keynesianism, he fails utterly. Instead, he gives a completely political answer – lobbing attack lines like any seasoned Republican or Democrat senator. And thus, in the result, I have come to accept the Chicago school of economic thought far more than the Keynesian school. In many ways, I find it quite disappointing.

PS: I should add that much of what Krugman talks about is in the area of macroeconomics, whereas Posner/Becker talk about both microeconomics and macroeconomics. I have always said that microeconomics is my strong suit. Macroeconomics is too riven with uncertainty for my tastes. Another good source for a right-wing economic understanding of macroeconomics is Alan Greenspan’s excellent autobiography. I have yet to find a good left-wing source. Perhaps it does not exist. Perhaps Joe Stiglitz is a better source.

Yesterday’s headline: HIV cured in Berlin; earthquake predicted

Today’s headline:We’ve cured HIV; also leukemia

(See: http://www.smh.com.au/world/science/stemcell-transplant-cured-patient-with-leukaemia-and-hiv-doctors-say-20101215-18y9t.html)

One of my favourite albums is Pink Floyd’s classic, the Division Bell, a paean for the lost art of communication, bemoaning the fact that people simply don’t talk to one another any more. And yes, somewhere deep inside, the cynic within me screams that the idea that people have suddenly stopped communicating is just as ridiculous as the idea that technology is beginning to dehumanise all of us or that other twaddle we were fed as truth during HSC English. What’s the mechanism, screamed the cynic? Where’s the evidence? How do you even define what is human?

But I was relistening to the album just today and I thought – what if its true? Not the part about the dehumanisation – that idea is contaminated by its mere association with HSC English. But what if we’ve suddenly stopped talking to each other. One of the things that’s always irked me about Americans is their unerring partisanship. What if that’s caused by the fact that people have just stopped talking to those they disagree with?

In many countries, the left/right divide is becoming increasingly blurred by a shift towards what is contemptuously called managerialism – the idea that what works is what should be adopted. But the exact opposite is happening in America where a very strong duality is emerging in terms of solutions to America’s most pressing problems. In economics, we can solve future crises through deregulation and trickle down economics – or by intelligent regulation and government stimulus. In education, we can shift to merit pay and school vouchers or we can throw more money at schools.

But why is this happening? I blame political correctness. No – not the kind you normally hear people complaining about where you can’t call African-Americans the N word or homosexuals the F word, unless you yourself are African-American or LGBT-identifying. I mean the idea that you’re not allowed to talk about politics or religion at the dinner table. It’s no longer polite conversation. And this is particularly strong in America (where political correctness – the much maligned kind – is also particularly strong). I’m not sure why – perhaps its a particular confluence of factors – the American tendency to be effusive in their conversation, combined with their tendency to be reserved except with their closest friends.

In any case, this lack of communication has a particularly malicious effect upon democracy. Democracy presumed that there would be a vigourous marketplace of ideas where different ideas could be contested. And it need not be at a particularly high level of discourse – it could be as simple as throwing slogans back and forth at one another. But if those conversations are frank, then I think some real good comes from it.

If you look at the most controversial topics which are the most taboo topics, abortion for example, you’ll find that they are the topics which we should be discussing the most. I don’t see why a pro-life advocate can’t understand the very strong points that a pro-choice advocate would make. Yes, there is a life (or potential life) at stake but aren’t you effectively forcing a woman to carry a child for 9 months against her will? Of all the cruel and unusual things we might do to criminals, are any of them worse than forcing someone to carry a foreign body inside of you for 9 months interfering with your entire life for that period, making you crazy and hormonal and culminating in an excruciatingly painful birth?

And why can’t a pro-choice advocate see the equally powerful and valid points made by a pro-life advocate? Even if a foetus is not “alive”, isn’t it a potential life that you’re destroying? But for your act, doesn’t that foetus have a 90% chance of surviving? Perhaps that child was the result of a rape – but that isn’t the fault of the child you are destroying. Do we still believe that

And yet there are still so many ardent advocates of one position who see the slightest undermining of their position as a grevious injury to themselves. During the health care reform debate, liberal Congressmen threatened to vote against the bill because it didn’t fund (some) abortion procedures. Likewise, conservative Congressmen threatened to vote against it because it funded some abortion procedures. Isn’t that ludicrous that abortion somehow became the lynchpin for such a major reform?

The distressing thing about the partisanship in America is how it obscures the real problems plaguing America. Each party accuses the other of being in the pocket of special interest groups. Republicans are corporate stooges. Democrats are in love with gay lobby groups and animal rights’ activities and hippies. In truth – both sides are in the pocket of both corporations and special interest groups and are distorting public policy. The same thing is happening for individual issues. The furore over health care wasn’t about the real issues of restraining skyrocketing costs and inequality. It became about States’ rights and abortion. In education, the debate over merit pay v higher teachers’ pay completely ignores the fact that money has actually been flooding into education. The problem is that all that money has increasingly been used to pay for administrators’ salaries without linking that to performance improvements.

Americans need to learn to understand opposing points of view. I’ve made it clear that I’m not a fan of the Tea Parties. Many of their members have abhorrent anti-libertarian beliefs and their ideology is misdirected because it solves none of the problems they complain about. But I still recognise that the Tea Parties’ philosophy is a nuanced and intriguing one which traces its way back as far as Jefferson himself. And that historied past simply doesn’t appear in any coverage of the Tea Parties except for Fox News’ coverage. Likewise, neither the conservative nor liberal media outlets are explaining President Obama’s legislative agenda properly. They don’t voice his version of events, but instead report on irrelevancies. Its all process and not policy.

[Grr yes, this is what happens when its 2am and I can’t sleep. I start ranting semi-coherently. Grr]

http://www.huffingtonpost.com/2010/12/14/hiv-cure-berlin-patient_n_796521.html#

Tomorrow’s headline: Earthquake strikes Berlin

Every now and again my Facebook newsfeed throws up some interesting facts.

Just today, a liberal friend pointed out that a drought has broken each and every time a new Labor government was elected. A conservative friend pointed out that 95% of liberals in California live on the west of the San Andreas fault so if a particularly large earthquake…

God, of course, loves each and every one of us. But which side of politics does he love more? It stands to reason (though, experience demonstrates that reason has very little to do with God) that he can’t love both sides of politics evenly. After all, if he loves each and every one of us equally then by the additive property he loves the more populous side of politics more.

It is commonly known that reality itself often discriminates against conservatives – facts seem ever so inconvenient to their beliefs, whether its evolution, global warming, economic theory, etc etc. But equally, I have documented instances of God’s wrath shortly after gay agenda victories. For example, shortly after Tasmania passed a particular gay friendly law, a severe earthquake struck New Zealand.

So, as the wise Avril Lavigne once said, what if God was one of us? Would He be progressive or conservative?

This review will contain spoilers, although there’s not really much to be spoiled by way of plot.

 

Those of us who prefer non-fiction to fiction often think of literature as an exercise in circumlocution. Why reveal truths through the murky medium of story-telling when the exactitude of non-fiction can be so much more fitting? And yet, a picture can tell a thousand words and fiction can paint the prettiest picture of all. In light of that, is it fiction or non-fiction that is mere circumlocution?

 

It is with that thought that I wish to review Doris Lessing’s book the Cleft for which she received the Nobel Prize for Literature in 2007. I find her most interesting because the Nobel Prize is rarely awarded to writers of speculative fiction (what most people refer to as ‘science fiction + fantasy’, but which is slightly broader than that). In fact, none of the great foundational authors of science fiction or fantasy have received a Nobel Prize that I know of, including James Joyce – whom one might consider to write ‘literature’ in its classic sense. I think I may even recall hearing that she is the only SF writer to have received the prize. So, as a big fan of both literary and trash SF, I thought it would be particularly interesting to read her work.

 

The Cleft, to describe it briefly, looks back at the beginnings of humanity with the provocative thought – what if it was women (and not men) who were the original stock of mankind? It tells the lost story of mankind’s origins from the point of view of an Ancient Roman historian piecing together fragments of oral history he has discovered. It begins with the Cleft, a society of women who procreate without the help of men, producing only female babies. These females lounge about the beach around their cave (the Cleft). Their existence is peaceful, without change or rhythm. Each women has her allotted place in society – with each having no name but each cave has its own Fisher, its own Weaver etc etc. They don’t leave their beach or cave and explore, because they feel no need to. And then, suddenly male babies begin to be born into that society and they are cast out on the Killing Rock for the elements to kill them. By the intervention of some Eagles, the babies are saved to form a separate male colony (the Squirts). The crux of the story is the meeting of these two separate societies. The peaceful, languid society of the Cleft is torn into disarray and conflict with the emergence of the Squirts. And that, is where the blurb ends.

 

Whilst that doesn’t sound too odd for a science fiction novel (I seem to recall an Arthur C Clarke with a similar premise) what is unique is Lessing’s choice of writing style. Instead of a straightforward narrator-style novel, with characters speaking and interacting the book takes the form of a mythical tale told by a historian. Thus, the historian relates the story of the meeting of the Clefts and the Monsters (the males), with only two characters ever being named. Lessing consciously attempts to eschew either plot or character development to further this illusion. Characters are barely introduced (for the proto-humans have no concept of identity, as yet) and only two characters are ever named.

 

What is the point of literature? I think to even to attempt to answer this question is to make a fundamental mistake. Is it to tell a fascinating story, to provoke interesting thoughts, to evoke our strongest emotions? In truth, it is all of these things for each work of literature does it in different ways. Unfortunately, the Cleft does none of these things. In my opinion, as a work of literature or as a work of speculative fiction this book falls utterly flat.

 

An excellent work of fiction might draw us in with its nuanced characters. Like the lawyer’s eloquent argument, the opening characters’ personalities are each described in turn; the author sets them up like carefully placed dominoes and then as the plot unfolds we watch them fall in an unexpected or expected manner. Of course, the Cleft cannot do that as it has neither a strong plot nor strong characters. An excellent work of fiction might instead evoke strong emotions to make us feel as the characters felt, to feel the world beneath our metaphorical feet. But by describing her world through a historian’s eyes, Lessing robs us of that ability. We do not see the Cleft’s fear of the unknown through their eyes, but we are told that the historian has inferred it from their actions or from his manuscript.

 

So, therefore, Lessing must rely upon provoking the reader to philosophise with new and intriguing ideas or possibilities. We are invited to ask, “what would a uni-gender society look like?”. When we are told, we are lead to rejoin – “but what if males were introduced to that society?”. And in abandoning the standard tools of a novelist – a plot and characters, Lessing must rely solely upon the tools afforded to her by speculative fiction. As a fan of speculative fiction writing, I must say that she fails spectacularly.

 

If one of the purposes of literature is to reveal the truth about the human condition, then that truth must be unveiled through the believability of the story. This is not necessarily realism – for example, the Lord of the Rings and the Narnia series are equally unrealistic but both create believable worlds. And as we watch the plot unfurl and watch the characters develop, we learn several truths. In the Lord of the Rings as Frodo and Sam trek through Mordor we see the power of friendship. We see that it is only by their friendship contrasted against the base treachery of the orcs could they have prevailed. In the end, we see that Sauron failed because he expected his enemies to be as ruthless as him, as loving of force as him and he failed to guard against acts of selflessness like throwing away a Ring of Power.

 

In Narnia (which I have not read), the tale is one of Christian redemption. It asks us to presume that there exists an all-powerful entity (the Lion) and that he has revealed himself to Narnia in the past and asked them to trust in him. And, flowing from that initial presumption, we overlook what would otherwise be grossly stupid acts by the heroes because within the confines of this hypothetical world, it makes sense to have faith that a giant lion will always save the day. Through this work of fiction, C S Lewis describes the boundaries of what is and is not possible in a world created by a loving God and by allegory describes the boundaries of what he sees our world as being.

 

If literature is a mirror to the human soul, the lens of that mirror is the believability of the story. By deliberately avoiding a strong plot or a strong characterisation, Lessing fails to create that necessary believability. The truths she purports to unveil become more like bald assertions. As the female’s society begins to unravel, we don’t see this as a logical consequence of the initial premise. If we had learned that there was a Cleft named A, who gradually became more protective of the male society then it would be inevitable that when the leaders of the Clefts decided to invade and kill the males that A and her followers would rebel and cause conflict within the Cleft society. Instead, we learn that A is mysteriously driven to the male society. And then, once there, she mysteriously has urges to procreate with every single male. We learn later that A is joined by other females who feel the same urges. There is no feeling of closeness between A and any of the males (whom she does not name) nor any feelings of protectiveness for this community she leads. If either had existed, the plot would become that much more believable.

 

Instead, I felt the entire book was Lessing asserting her prejudices against me.

 

The female’s society is a languid society where they laze on the beach. They don’t ever bother to explore. Why? Because.

Assertion: Females are stupid and unimaginative. They need us men to do the exploring for them.

 

Once the females meet men, they are driven to orgasmic orgies.

Assertion: Females need men, they exist only to please us and to procreate with us

 

The assertions are not all one-way. Whilst the men are depicted as more naturally violent (causing the first death) the females also reciprocate with violence. Thus, it is asserted that without men women would not be violent but that men introduce conflict into their lives. But please, could we at least have some nuance? I think the sheer over-simplicity of this book can be summarised through one simple example. The Cleft refers not only to the cave, but also to female genetalia. The Squirt’s name also refers to their genetalia. That is as subtle as Lessing gets in this book.

 

I think the entire book could have been redeemed by a few simple changes. If Lessing had reworked this as a mythical story a la Tolkein’s Silmarillion, the implausibilities would have been easier to ignore. Instead, by opting to tell the tale through the lens of a historian, Lessing forces us to ground ourselves in the modern world and it loses the magic that SF seeks so hard to preserve. And whilst such a redemption might absolve the literary aspects of the book, I’m afraid it fails to redeem the grossly outdated sexist elements.

 

http://www.prospectmagazine.co.uk/2010/11/thilo-sarrazin-germany-immigration-multiculturalism-review/ I’ve always been a big fan of listening to both sides of the story. We’ve often heard worrying reports from Germany about Chancellor Merkel’s pronouncement that multiculturalism is dead in Germany. Here’s the flip side of the argument – a more detailed analysis of why German multiculturalism has failed. It’s an interesting article, if only for the reason that it is so difficult to write.

It is rarely popular to write nuanced articles about issues of race in any country, though it is of course quite popular to write very unnuanced protest signs about issues of race – whether claiming that all and sundry are racist bigots, or claiming that immigrants are stealing our jobs. The unpopularity of the task may explain why it was written by “David Goodhart [who] is Prospect’s outgoing editor“. I’m not sure how much I either with either the article or the book, but it’s always good to promote these alternative views.

For one, I don’t think the evidence gathered is a particularly strong indictment of the German version of multiculturalism. The article cites the example of several races who have entered Germany previously without (major) problems. So it does sound like this problem seems concentrated upon one particular race, the Turks (whether or not that is euphemistic for ‘Muslim’, I don’t know).

That said, to say it ‘sounds like’ is different from saying that is the truth. I think that this is not an issue of race or religion but more like a class problem. Those immigrants from uneducated backgrounds are less open to accepting new points of view. For that is what education seeks to do – allow you to open your mind to different value sets and different perspectives. Thus, they refuse to accept new values that might not have existed in their home countries. For example, the notion of democracy and respect for other religions. Others may not see the value of education and thus perpetuate the problem in later generations.

To change topic entirely from my usual fare, I would like to introduce you to some fanfiction:

http://www.fanfiction.net/s/5782108/1/Harry_Potter_and_the_Methods_of_Rationality

Harry Potter and the Methods of Rationality

It’s absolutely brilliant. I’m up to the Efficient Market Hypothesis chapter, where Harry pwns the entire wizarding world economy using a simple trick known by hedge funds the world over (or at least, the muggle world).