Judge Learned Hand and liberalism

“Judge Learned Hand” reads like a Zen koan or something, but he was in fact an American judge, who has been “quoted more often by legal scholars and by the Supreme Court of the United States than any other lower-court judge“. Yes, that is (most of) his real name – the full version is Billings Learned Hand.

His Wikipedia page (linked above) makes for fascinating reading, but if you leave this post wanting to know more about his thinking, I’d encourage you to read Jerome Frank’s 1957 article titled Some reflections on Judge Learned Hand (pdf).

The aspect of his thinking that I want to briefly discuss here is about what liberalism meant to him, and what it means to me. In 1944, Hand gave a speech titled “The Spirit of Liberty” to a gathering of around 1.5 million people in Central Park, NY, many of them newly-naturalised citizens.

You can – and indeed should – read the full speech. The portion of it I want to address goes as follows:

Continue reading “Judge Learned Hand and liberalism”

Should Muslims handle pork and wine?

halal sign

halal signOn hearing that Muslim staff at the UK supermarket chain Marks & Spencer could now refuse to sell pork and wine, the decision seemed to be an instance of making too great a concession to religious sensibilities. I’ve shied away from gratuitously offending those with religious beliefs for some time now, but being opposed to Blasphemy Day, for example, doesn’t mean that you need to commit to respecting every demand made in the name of some or other god.

There are various reasons to think that Muslims should not be able to opt-out of handling wrapped and sealed pork, or alcohol in bottles. On a broad political or legislative level, allowing them to do so would result in a private choice incurring a very public cost. In a secular society like the UK, USA or South Africa, my decision to adhere to a particular belief system that comes with costs doesn’t commit anyone else to bearing those costs – and here, all (pork- and alchohol-buying) shoppers would encounter the inefficiency of not having all cashiers available to them.

We’d also need to determine which sorts of beliefs allowed for these sorts of concessions, as there’s in theory no end to the number of religious demands that could be made of employers. This point was made in amusing fashion by MoDawah (@kingofdawah) – ‘expert on everything’ and ‘media Muslim’ on Twitter, who said things like:

  • Just heard that Hindu employees of Aldi don’t have to sell any goods that they fear may be a reincarnated ancestor of theirs #diversity
  • Tesco just announced Atheists don’t have to sell anything that they don’t believe exists #diversity
  • Waitrose announces that Nihilist members of staff don’t have to sell anything that negates one or more putatively meaningful aspects of life

As to whether this concession is even demanded by the Muslim faith (as opposed to certain Muslims just feeling uncomfortable selling these goods), I was alerted to an analysis of the issue by an apparently authoritative Shaykh, who makes it quite clear that Muslims can sell pork and alcohol (though, not in their own supermarkets):

It would be permitted to work on the check out of a supermarket that sells things Muslims consider impermissible (such as pork, alcohol, wine, or food items with haram ingredients). One’s earnings will be lawful (halal).

One could also point out that it would hardly come as a surprise to an employee at Marks & Spencer that these products are on sale there, and that you’d therefore encounter someone wishing to buy them on a regular basis. Reasonable accommodation can be made, certainly – I can understand an employee talking to a supervisor, saying “I would like to be excused from X”, but X can’t be some core competency of the job, like a cashier being asked to sell things to customers.

The long and short of it might be something like: “why did you take the job, if you knew you couldn’t perform it for religious reasons?

Even though the concession in question doesn’t seem required by Islam, and even though it also introduced inefficiencies, my initial reaction to reject it was nevertheless tempered on reflection, when I considered whether it was possible to accommodate this sensitivity (because it’s not a legal requirement of Islam) without introducing those inefficiencies, and of course without putting us on a slippery slope which commits us to respecting all sensitivities (which would be impossible).

For example, monitoring the demand for halal checkout lines (where pork, alcohol, etc. would not be sold) could allow us to designate the required number of lines as such, then clearly signpost them as such so that someone wanting to buy pork or alcohol doesn’t get turned away when they reach the front of the line.

But this idea wouldn’t be simple to implement at all, and would introduce inefficiencies of its own. Employing people to work on the halal checkout lines leaves you with the problem of what to do with them when demand drops, or when you calculate it wrong. While you might have assumed that you need to bring in three “halal cashiers” on a particular day, you might find you only need one. Don’t send two of them home, though – first because you might not be allowed to, given their conditions of employment and relevant laws, and second because there might be a sudden rush of Muslim customers. The HR complications, in other words, might be significant.

Lastly, there’s a general issue raised here that is rather tricky, in that there are a number of historical concessions to religion that were made before religion and secularism became so politicized and public, and in a time where we were far more willing to politely live and let live, rather than taking to Twitter to shout about nobody respecting what we feel entitled to (there is of course the other side of that coin, where we’ve learnt more about what our rights are, and are now expressing legitimate grievances more often too).

Conscientious objection is one, but dis-analogous because it seems self evident that it’s asking a lot more to put a gun in someone’s hand and ask them to kill, versus putting a scanner in someone’s hand, and asking them to ring up some pork chops. Likewise, it seems a clearer violation of someone’s sensibilities to ask them to perform abortions if they have a religious objection to doing so.

But here in South Africa, marriage officers can lodge an objection to performing gay marriages, and become legally exempt from having to officiate under those circumstances. Even though I’d never want a homophobe to officiate my wedding – regardless of whether or not I was gay – should he or she get to have the option of refusing? I think not. Those of you in other parts of the world will no doubt know of similar concessions already made, and that you might ideally want to revise.

Not all preferences can be accommodated. Regardless of whether it’s a religious issue (as in this case) or not (imagine an environmentalist cashier, and how he or she could develop a principled objection to selling some item, or a vegan, or a Pollan-ite), the answer can’t simply be to accede to any demand, because as I’ve argued before, that means those who complain the loudest winning a disproportionate number of battles.

And the answer which seems in principle correct – namely operating as a secular organization, and only making these concessions on an ad hoc basis – is certain to offend some religious sensibilities, some of the time. What this seems to mean is that it’s the religious sensibilities that need to change, rather than the rest of us needing to feel their impact on our secular lives.

[Edit: today, Marks & Spencer are saying that allowing Muslims to refuse to sell these things was never their policy.]

You can leave your hat on

Originally published in the Daily Maverick.

this-hijabIn a phone call to Redi Tlhabi’s Radio 702 show last Wednesday, Caroline (or something) from Claremont was outraged. Children should not be allowed to wear Muslim headscarves, she said, because headscarves are a sign of Muslim “infiltration and indoctrination”. Furthermore, she repeatedly asked, if kids can go to school wearing a hijab, why can’t they also (or rather, alternatively) go to school naked?

Another caller agreed that religious garb should be outlawed at school, on the grounds that this would somehow curb the (presumable) infiltration and indoctrination of atheists, who wear black. Apparently. In other words, just another day in the parallel universe of talk radio, where common sense goes to die.

But beyond the hysteria, there are some issues worth addressing here. Not Caroline’s apparent racism (in this case Islamophobia, although that remains a word we should use sparingly, because that’s clearly inadequate grounds for policy. Neither need we address the non-analogous case of nakedness, nor the various other failed attempts at analogy (why is my child forbidden from wearing cowbells!). Whether what currently counts as legitimate religion is right or wrong, our current legislative framework is the one by which the Eben Dönges case needs to be assessed.

For those unaware of this case, the nutshell version is that two children were sent home from Eben Dönges, a high school in the Western Cape, for wearing religious headgear. Sakeenah Dramat (16) was asked to remove her hijab, and her brother Bilaal (13) was asked to remove his fez, and they were told that they could not come back wearing their respective headgear. This was on the first day of the new term, and the children were only able to return to school a week later, after the Western Cape Educational Department intervened.

The first issue worth addressing is the error of referring to Muslim children, Christian children, or [insert any other religion] children. Until a child is old enough to choose for itself, it is the parents who are religious rather than the children. Indeed, this particular case is notable for the fact that it’s the mother who is quoted as saying “I can’t allow them to take it off because it is against our Islamic beliefs.”

She’s then quoted as saying “It is very sad. It is very disturbing” – and while she clearly means the actions of the school, those words could easily apply to some cases of children who are given no option but to believe what their parents do – and thus also easily apply to her previous quoted sentence.

But a 13 and a 16 year-old could also be Muslim by choice. Unfortunately, we often only get to know how much volition is possible when people try to change their minds (through observing how their families and community react), but it’s certainly possible that these two children are contented in this particular faith, and proud of being identified as members of it.

To go back to our caller to Redi Tlhabi, though: that account of how much choice was involved ignores the issue of how early indoctrination can start, and how powerful it can be. By the time one is 13 or 16, it can be difficult to see any other choice than the one your family made as being the appropriate or sensible one. You might never think of changing your mind, and we would then never get to see how unwelcome doing so might be.

These concerns need to be applied consistently, though. Given the high proportion of Christians in South Africa, the chances are good that many anti-hijab callers (and many of the hundreds who have expressed anti-hijab sentiments on the poll IOL is running) would see no problem with a child wearing a crucifix necklace. Because your indoctrination is evil and mine not, I suppose.

We can’t guarantee that these sorts of choices are made freely. But we can help to create a climate that encourages free and rational choice, and also taking responsibility for choices. Forbidding the hijab while permitting the cross encourages inconsistency and bigotry. Permitting them both – as well as any other outward signs of religious affiliation – can be done alongside restrictions that encourage civic virtues such as understanding and compassion.

I mean two things: first, that allowing the hijab, but insisting that it be in the colours of the school uniform, reminds the scholar that a plurality of values are competing, and that none should be assumed to have priority until the relevant debate has been held. And second, allowing religious headgear avoids sending a signal of prejudice, which will hopefully result in an increased chance for people like me to argue against the choice to ever want to wear the headgear or the crucifix.

The system of thought – or sometimes lack of thought, to be more honest about some forms of religious indoctrination – that forces some women to cover themselves near-completely does merit opposition, as does a tradition that won’t allow women to be priests, or to have abortions, or whatever the case might be.

But expressions of those ideologies are not equally thoughtless, and treating them all as if they are – or not allowing them at all – runs the risk of acting no differently to that which you’re protesting. If you don’t think children should wear a hijab or a fez, persuade them and their parents that they shouldn’t. As David Mitchell puts it, “It bears restating that it’s not bigoted to disagree vociferously with people’s choices, as long as you’re even more vociferous in defending their right to make them”.

And finally, if a public school doesn’t allow for the expression of alternative religious views (including the non-religious view), please report them to your local education board.

On respect, and whether Errol Naidoo is a fool

I’ve previously argued that people deserve respect, rather than the ideas that they might hold. Intuitively, this seems relatively uncontroversial, in that there seems no reason to respect the point of view that the Earth is 600 years old, or that the folk wisdom of superstitious folk from centuries ago should guide our lives in the 21st-Century. But note that to say people rather than ideas deserve respect doesn’t necessarily mean that all people deserve respect. It’s entirely possible that the totality of what you know about a person indicates that their confusions or malice run so deep that it’s difficult to find anything good to say about them.

This still wouldn’t preclude certain forms of respect for that person. You would still want to hear what they had to say, and attempt to judge it objectively – not only do people change, but they could also surprise you by revealing things you didn’t know, or hadn’t thought important. As much as efficiency demands that we apply a discount to the expected value of what certain people say, to blindly assume that they are always wrong, and not worth paying attention to, is an arrogance that might lead us into complacency and error.

However, this does not stop certain people from (generally) making little sense. How do we describe these people? In the case of Errol Naidoo, I described him as a ‘fool’ when Tweeting a link to a Sunday Times interview with him regarding his call to boycott e-TV for their screenings of Naked News. Regular readers of Synapses would be aware of Naidoo’s homophobia, his knee-jerk moral hysteria founded on (very) selective evidence, his contribution to the threats directed at students involved in the 2009 Sax Appeal controversy, and so forth. Read the Sunday Times interview for yourself: does he appear to be someone who is weighing evidence objectively, and looking for the root causes of social ills? Or does he appear to be a myopic moral reactionary, guided by missionary zeal to always allow his values to determine what the rest of the country is allowed to watch, and do?

I’m happy to call him a fool, because that’s a useful summary of a person who generally holds foolish views. Yes, according to me – and of course I might be wrong. And a commitment to treating people with respect would mean that I should be open to contrary evidence, whereby he might indicate that he is someone worth listening to on some subjects. I have not seen any such evidence to date, and this is why I’m comfortable calling him a fool.

Other self-identified skeptics disagree, though, apparently of the view that everyone merits respect, even those “whose actions and beliefs disgust me”. What would “respect” mean in a statement like that, beyond what I’ve conceded (being open to contrary evidence)? Not calling them names like “fool”? Tolerance has its bounds, and some of those bounds are perfectly legitimate. Consider Mengistu – should we simply critique his arguments, or are we allowed to call him a callous thug, or a madman? There are plenty of examples of characters like him, where some sort of summary term – which could well be abusive – fits their characters and motivations perfectly. Does “respect” entail never using these terms?

Of course, one can misuse terms of abuse. That is a separate argument, which would require my being corrected regarding the evidence that I think merits describing Naidoo as a fool. The possibility of mis-applying such terms does not mean it’s impermissible to ever use them, though. The appeal for such restraint is motivated by tolerance and openness to correction, and these are often good things. But they are also often the sorts of motivations underlying claims to refrain from judgement. But we need to make judgements, so as to be able to say that racism, sexism, genocide, female genital mutilation and so forth are wrong.

The real question is whether our judgements are sound or not. Determining whether they are requires us to subject them to scrutiny – not to avoid making them. A version of “tolerance” or “respect” that forbids us from saying that illiberal and homophobic men – camouflaged by the piety of religion – are fools is one that puts us on a slippery slope to not being able to make any judgements at all – and this is a version of respect that we should have no part of.