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The Magistrate

The Magistrate's Journal
The Magistrate's Journal
August 5, 2014

That Was Not An Accident, Ma'am: That Was a Crime

The official Israeli explanation, as of last night, anyway, was that they were attempting to kill some Hamas people on a motorcycle that was passing by the school. So they were trying to hit something moving in the road nearby, it was not a stray round or something that struck where it did by gross mistake. I have pointed out before that the standard an attacker must meet when attacking a legitimate military target, if doing so could endanger non-combatants, is that the direct military benefit gained by neutralizing that target must be so great as to outweigh the risk of harm to non-combatants. I understand people may view that balance differently, and that reasonable people of sound mind and good heart might come to different conclusions as to where it rests in specific instances, but as someone willing to give latitude to claims of military necessity, I assure you that there is no way in Hell a reasonable argument can be made for the proposition that the direct military benefit of killing a couple of people on a motorcycle, however militant and combatant they may be, is or can be sufficiently great as to outweigh the risk of harm to non-combatants inherent in trying to land artillery in the street alongside a facility known to be sheltering several thousand non-combatants.

August 5, 2014

Indeed, Sir: Holding A Man To Account For His Previous Words Is Not Argumentm Ad Hominem

People chant 'agumentum ad hominem' here as though it were some magical phrase of power which puts its utterer in the right on any occasion. It does not, and it is almost never used correctly.

The fallacy of argumentum ad hominem refers to a response attacking the person making the argument, by saying that he or he is unworthy to speak, or to be taken seriously, for reasons unrelated to the argument made. An example might be to say that since a person has gone bankrupt recently, his opinion that the United States should provide military assistance to Iraq cannot be taken seriously. The flaw cited, true or not, has no relevance to the subject. But if a person has expressed the opinion that stock in the Beefsteak Mine is an excellent buy at ten cents a share, pointing out that he filed for bankruptcy last month is not irrelevant to the point at hand, but speaks to the quality of the person's judgement on financial matters. Similarly, if a person states it as a fact that, say, the U.S. government is buying up great quantities of ammunition in order to drive up the price and so disarm the people, pointing out that earlier this person stated as a fact that the government has a machine that creates and directs tornadoes and uses it to destroy resistance to tyranny in the heartland is wholly appropriate, because it speaks to both judgement and pre-disposition, establishing the person is delusional and is in actual fact not worthy of being taken seriously. If someone predicts that, say, President Obama is going to resign in disgrace before the year is out to avoid impeachment, it is wholly legitimate to point out that earlier, this person predicted President Obama would be defeated in a landslide by Romney, thus establishing that this person's predictions are worth less than those of the average 'psychic friends' operator.

A leader or spokesman for Hamas being called to account for having circulated the classic blood libel, and having stating his aim is expulsion of all Jews from Israel whose ancestry traces to immigrants arriving there in the twentieth century, is wholly appropriate, and in no sense an argumentum ad hominem. It speaks directly to the worth of any statement he may subsequently make avowing an interest in any form of peaceful accommodation, or that he and his fellows are unfairly described as driven by hate. Viewed in the coldest light, it even calls into question whether the man is so gripped by delusion that it might be an error to consider him wholly sane. And of course, it would be quite easy to settle the matter when called to account for having made such statements: the man would need only to state that he does not stand by them, that he knows the blood libel is a despicable slander he regrets having circulated as truth, and that he knows he cannot expel nearly six million Jews from Israel, and does not desire to do so. That is all it would take, and if the man will not say that and move on, one is entitled to wonder why this is....

August 2, 2014

The Problem With That Boiler-Plate, Sir, Is This

There is absolutely no reason to believe that a Likud government in Israel is any more interested in peace with the people of Arab Palestine than the leadership and militants of Hamas are in peace with Israel.

It has been evident for some years the actual policy of the present government of Israel is one of de facto annexation of the portions of the Jordan valley over-run in '67, or in short, a policy of 'one land between the river and the sea', without great dissimilarity to the banner the most militant of Arab Palestinians fly. There would be some difference in detail of outcome; a Hamas victory would be accompanied by massacre and rapid flight, a Likud victory would feature less immediate killing and a more gradual departure of the defeated, but these are differences of style and sophistication more than differences of kind. Both sides at present are aiming for a peace of victory, in which the defeated can have no part or presence. Partisans on both sides need to understand this, and to face up to it squarely, particularly when engaged in slanging the character and motive of their opponents.

At some point in a fight, one must begin to assess capabilities as well as motives, to examine whether one or another of the parties are capable of doing what they clearly intend. The fact that someone, even an obviously angry someone, has shouted 'I'll kill you!' does not really justify my breaking his arm and several ribs, especially if he is not actually armed with more than a pocket knife and spotting me thirty pounds of muscle and a half foot in reach and many years of practice. If I did something like that, I would not expect a police sergeant surveying the scene to believe I was really in fear for my life, and would expect to be arrested and face some charge greater than misdemeanor battery.

It is a fact that Hamas lacks the capability to do serious harm to Israel, let alone destroy Israel, and that is so even if it intends to destroy Israel and its leaders and militants go to sleep each night dreaming of destroying Israel.

It is a fact that Israel does have the capability to maintain occupation of the Cis-Jordan indefinitely, and has the capability to complete its de facto annexation of that area, and constriction of the existence of its Arab population to the point the bulk of them give it up and depart.

Success in the latter endeavor is no more right and just than success in the former.

July 13, 2014

You Are Quite Right, Sir, It Does Not

Israel may very well be committing breaches of the laws of war in Gaza now.

But there are a few things that need to be made clear in assessing that. There seems to be a widespread view that any risk, certainly any harm to non-combatants, is a violation of the laws of war. That is not true. When taking military action, a force must take reasonable precautions against harm to non-combatants. If a military action may put non-combatants at risk, the action is not a violation if the direct military benefit of neutralizing the target would be such that it could be reasonably seen as outweighing the risk to non-combatants. And, as observed before, if that risk to non-combatants flows from a decision by combatants to take up positions in which strikes against them would put non-combatants at risk, the responsibility for harm to non-combatants falls on the people who took up such a position, though it may be shared by the force which attacked them, if it did not in its actions meet the two criteria set out earlier. Still, it needs to be borne in mind that the fact that non-combatants have been harmed does not establish that the party which harmed them violated the laws of war. Reasonable precautions is not a standard that can only be met by perfection; one may take reasonable precautions to avoid a thing, and it may still occur. It is quite possible for an act which does produce a very great direct military benefit to have also done a good deal of harm to non-combatants.

The Israeli practice of giving warnings of where it will strike is certainly designed to meet the standard of taking reasonable precautions against non-combatant casualties. It probably does establish that reasonable precautions against harm to non-combatants are being taken. But one could still make a decent argument that the munitions employed, in so densely inhabited a place, and where much construction is so flimsy, present an unreasonable risk of harm to non-combatants.

Where Israel is on much shakier ground is the 'direct military benefit' standard. If combatants of one side in a battle, say, position a machine-gun in the living room of an occupied home, and if neutralizing that position allows there opponents to advance to a position that cuts off a large body of troops from supply, the matter is pretty clear-cut; the direct military benefit of destroying that machine-gun post outweighs the harm done to the non-combatants inhabitants of the house, or even nearby houses. But matters in Gaza are nowhere near so cleanly defined.

If it is a case of munitions being stored in a house, or a house is being used as a firing point or a command post, a decent military benefit can be readily made. But in instances where the point of the strike is to kill some individual militant, or to ruin his home and possessions, trying to claim some direct military benefit is gained by the attack is far too much of a stretch, and harm done to non-combatants in such an attack cannot possibly be said to have been outweighed by the direct military benefit gained, let alone be reasonably said to have have been outweighed. A good portion of the Israeli strikes in Gaza seem to have been of this latter sort, and are certainly grave breaches of the laws of war.

What can be readily observed here is that partisans of one side or the other in this conflict routinely condemn the criminal behavior of the opposing side, while ignoring or justifying their own. Persons who range themselves with the cause of Arab Palestine will cry up Israeli crimes, but will treat crimes of Arab Palestinian militants as justified by the right to resist, or by the greater power of their enemy, or even as of no consequence set beside the bestial behavior of the side they oppose. Persons who range themselves with the cause of Israel will cry up Arab Palestinian crimes, but will treat crimes of Israel as unavoidable in exercise of the right of self-defense, or justified by the tactics of their enemy, or even as of no consequence set beside the bestial behavior of the side they oppose. Where these things can be observed in a partisan's comments, it is clear that in neither case is there any attachment to the principles of law appealed to, but rather that the appeal to law is simply one more weapon being taken up to cudgel the foe. It is rather as if, where two gangs are feuding in a city neighborhood, members of one try and lay information against the other with the police: they do so not out of desire to see the law abided by, but to try and get the police to assist them in gaining a clear field for their own law-breaking. It is part of the wrestling for a claim to the moral high ground, which is always a part of the political side of armed conflict, and nothing more.

July 10, 2014

I Appreciate Your Kind Words Very Much, My Friends

Thank you.

Here is a bit from Mr. H. H. Munro, an especial favorite of mine....


MARION EGGELBY sat talking to Clovis on the only subject that she ever willingly talked about – her offspring and their varied perfections and accomplishments. Clovis was not in what could be called a receptive mood; the younger generation of Eggelby, depicted in the glowing improbable colours of parent impressionism, aroused in him no enthusiasm. Mrs. Eggelby, on the other hand, was furnished with enthusiasm enough for two.

“You would like Eric,” she said, argumentatively rather than hopefully. Clovis had intimated very unmistakably that he was unlikely to care extravagantly for either Amy or Willie. “Yes, I feel sure you would like Eric. Every one takes to him at once. You know, he always reminds me of that famous picture of the youthful David – I forget who it’s by, but it’s very well known.”

“That would be sufficient to set me against him, if I saw much of him,” said Clovis. “Just imagine at auction bridge, for instance, when one was trying to concentrate one’s mind on what one’s partner’s original declaration had been, and to remember what suits one’s opponents had originally discarded, what it would be like to have some one persistently reminding one of a picture of the youthful David. It would be simply maddening. If Eric did that I should detest him.”

“Eric doesn’t play bridge,” said Mrs. Eggelby with dignity.

“Doesn’t he?” asked Clovis; “why not?”

“None of my children have been brought up to play card games,” said Mrs. Eggelby; “draughts and halma and those sorts of games I encourage. Eric is considered quite a wonderful draughts-player.”

“You are strewing dreadful risks in the path of your family,” said Clovis; “a friend of mine who is a prison chaplain told me that among the worst criminal cases that have come under his notice, men condemned to death or to long periods of penal servitude, there was not a single bridge-player. On the other hand, he knew at least two expert draughts-players among them.”

“I really don’t see what my boys have got to do with the criminal classes,” said Mrs. Eggelby resentfully. “They have been most carefully brought up, I can assure you that.”

“That shows that you were nervous as to how they would turn out,” said Clovis. “Now, my mother never bothered about bringing me up. She just saw to it that I got whacked at decent intervals and was taught the difference between right and wrong; there is some difference, you know, but I’ve forgotten what it is.”

“Forgotten the difference between right and wrong!” exclaimed Mrs. Eggelby.

“Well, you see, I took up natural history and a whole lot of other subjects at the same time, and one can’t remember everything, can one? I used to know the difference between the Sardinian dormouse and the ordinary kind, and whether the wry-neck arrives at our shores earlier than the cuckoo, or the other way round, and how long the walrus takes in growing to maturity; I daresay you knew all those sorts of things once, but I bet you’ve forgotten them.”

“Those things are not important,” said Mrs. Eggelby, “but – ”

“The fact that we’ve both forgotten them proves that they are important,” said Clovis; “you must have noticed that it’s always the important things that one forgets, while the trivial, unnecessary facts of life stick in one’s memory. There’s my cousin, Editha Clubberley, for instance; I can never forget that her birthday is on the 12th of October. It’s a matter of utter indifference to me on what date her birthday falls, or whether she was born at all; either fact seems to me absolutely trivial, or unnecessary – I’ve heaps of other cousins to go on with. On the other hand, when I’m staying with Hildegarde Shrubley I can never remember the important circumstance whether her first husband got his unenviable reputation on the Turf or the Stock Exchange, and that uncertainty rules Sport and Finance out of the conversation at once. One can never mention travel, either, because her second husband had to live permanently abroad.”

“Mrs. Shrubley and I move in very different circles,” said Mrs. Eggelby stiffly.

“No one who knows Hildegarde could possibly accuse her of moving in a circle,” said Clovis; “her view of life seems to be a non-stop run with an inexhaustible supply of petrol. If she can get some one else to pay for the petrol so much the better. I don’t mind confessing to you that she has taught me more than any other woman I can think of.”

“What kind of knowledge?” demanded Mrs. Eggelby, with the air a jury might collectively wear when finding a verdict without leaving the box.

“Well, among other things, she’s introduced me to at least four different ways of cooking lobster,” said Clovis gratefully. “That, of course, wouldn’t appeal to you; people who abstain from the pleasures of the card- table never really appreciate the finer possibilities of the dining-table. I suppose their powers of enlightened enjoyment get atrophied from disuse.”

“An aunt of mine was very ill after eating a lobster,” said Mrs. Eggelby.

“I daresay, if we knew more of her history, we should find out that she’d often been ill before eating the lobster. Aren’t you concealing the fact that she’d had measles and influenza and nervous headache and hysteria, and other things that aunts do have, long before she ate the lobster? Aunts that have never known a day’s illness are very rare; in fact, I don’t personally know of any. Of course if she ate it as a child of two weeks old it might have been her first illness – and her last. But if that was the case I think you should have said so.”

“I must be going,” said Mrs. Eggelby, in a tone which had been thoroughly sterilised of even perfunctory regret.

Clovis rose with an air of graceful reluctance.

“I have so enjoyed our little talk about Eric,” he said; “I quite look forward to meeting him some day.”

“Good-bye,” said Mrs. Eggelby frostily; the supplementary remark which she made at the back of her throat was -

“I’ll take care that you never shall!”

July 2, 2014

Nothing Stops Hobby Lobby From Saying No Portion Of Salary Can Be used For Birth Control....

The employer no more provides the services insured than the employer provides anything an employee purchases with compensation received for working for the employer. The premium paid to the insurer is part of the employee's compensation; something the employee receives in exchange for labor. The matter is analogous to that of the 'employer's contribution' to Social Security: saying the payment under FICA is split between employee and employer is a mere cosmetic fiction, intended to disguise the full weight of the tax on the employee's salary --- the 'employer's contribution' is actually part of the wage paid, it simply is sent in payment of part of the tax on behalf of the employee by the employer. That the employer acts as the agent for the employees in purchasing health insurance for them does not alter this: the insurance is part of what the employee receives for labor, a portion of the compensation paid, and neither purchased by nor provided by the employer. One could, I suppose, have scruples about what one will do as the agent of another, and refuse to do something one is asked to do by another as her or his agent. But in a case where law directs a person acting as another's agent to do a thing, and one has scruples against it, the proper course is to decline the agency. Hobby Lobby, in short, would be free to not include health insurance as part of its compensation for employees, if doing so would require it to do something its owners had scruples over --- they would have to pay a fine, but what is a clear conscience without a price paid? What they do not have any right to do, cannot have any right to do, is require people to abide by their own religious beliefs as a condition of employment, which is what their exemption from a general requirement of law in structuring their compensation to employees amounts to. And if they can require employees to accept a compensation package that does not provide birth control as part of their health insurance, which is in fact stating that no portion of the compensation an employee receives as insurance can be spent on birth control, I fail to see any limiting principle in this decision which would prevent an employer from telling an employee no portion of the compensation you receive from me for your time and labor can be spent on something I personally find immoral. And you may be sure that sooner or later someone with sufficient gumption to try that will emerge, and the case be ram-rodded to the supreme Court....

April 11, 2014

It Is Clear, Sir, You Have Never Given The Subject Much Thought

By denouncing a violent response to violent suppression of dissent by police, and maintaining that a violent response to violent suppression of dissent by police is wrong, you are endorsing and supporting police brutality against demonstrators, and setting it up as right and proper action. You may not like this being pointed out, but that is no one's problem but your own: it is what you have done.

You have not even attempted engaging the near universal consensus that people have a right to defend themselves against violence done to their person, and do so in such a manner as will ensure the attack ends. Nor have you engaged that it is only a moral position against all violence, by anyone, which is ever resorted to in claiming use of violence to defend oneself against violent attack is never justified or moral. It is evidently not a standard you could meet, from your commentary on the topic. It is clear yours is, really, a garden variety 'I approve of violence against my enemies and disapprove of violence against my friends' standard.

Part of the muddle which tends to arise when people think of violence and whether it is right or not is a confusion between decisions made on the basis of moral values and decisions made as considerations of strategy or tactics. As people must often be reminded, the fact that one has the right to do something does not mean it is the right thing to do in some particular circumstance, judged by considerations of what might succeed or fail, and what the gains or pains might turn out to be. Judgement of this sort might well conclude it is a bad idea to fight back in some situations, but that does not change that people have the right to fight back, or establish that in all situations it is a bad idea to fight back.

When engaged in conflict towards some political end, one reason often given some weight in deciding whether use of violence is a good course or not is whether use of violence will forfeit the proverbial 'moral high ground', and indeed, it can be of use in seeking some end against opposition to give the appearance of being better people than one's opponents. It is a pretty question whether behavior which aligns with a high moral standard, but is performed not from a desire to behave morally but rather from the calculation that it may pay to appear moral, should be considered moral behavior, or something else. It is something definitely worth bearing in mind, however, when considering this subject.

Non-violence, as a strategy, depends for its success not on minimizing violence but rather on seeing to it violence flows in only one direction in the confrontation. Violence remains at its heart, for violence is the ultimate test of sincerity in political matters, and a willingness to see violence done, whether by oneself or upon oneself, is essential to achieving anything. A non-violent protest met with slices of cake and soft drinks rather than tear-gas and clubs or worse, would achieve nothing. Again, it is a pretty question, particularly for people who adopt non-violence from a sincere belief violence is in and of itself wrong, just what are the moral culpabilities when one deliberately courts and provokes violence in others, and indeed depends up the violence of others for success.

Since maintaining a monopoly on use of violence for political ends within its boundaries is one of the distinguishing characteristics of whether a functioning state exists, the question of violence will always arise when people in any number challenge the government of a state. The state will certainly be tempted to demonstrate its monopoly, and of course it is likely to have more resources in that line. But a successful use of violence against agents of the state is, by token of that claimed monopoly, one particularly striking way the legitimacy of the state itself can be called into question. In any confrontation which aims, or comes to aim, at overthrow of a government, there will come a point when violence by the opponents of the state becomes an important means for them to stake their claim it is they, not the government they oppose, which is the legitimate power in that state.

April 2, 2014

He Makes a Ludicrous Argument, Ma'am

What, after all, but a person, can speak?

The very concept of incorporation is to embody, to create out of some group of persons, whether a town or a guild originally, or later a group of investors pooling their money, a legal person which can have obligations and rights separate from the individuals who collectively constitute it. It is only as a 'person' a corporation has any existence at all.

But the idea that the legal embodiment of a group of persons, called into being to be a focus of rights of contract and to shield individual owners or members of it for its debts and liabilities, can have any opinion on any matter separate from the persons who own it, is nonesense. Worse then nonesense, it is an obvious impossibility, on simple physical grounds. Can anyone seriously imagine, say, the Caterpillar corporation disagreeing with its CEO, arguing with him on some point of social policy, and even going so far as to spend its money to rally public opinion against his view of the matter? To simply state the thing is answer it with 'Not just no but fuck no!'

Disallowing 'free speech rights' for corporations does not restrict the free speech of any citizen, or any actual person, in the slightest degree. All it does is require them to use their own resources to express their views, rather than the pooled resources of the corporation they own or direct, resources which are not theirs in the first place.

"The trouble with our modern corporations is they have neither bodies to be kicked nor souls to be damned."

March 12, 2014

Two Points, Sir

One, adherence to 'conspiracy theories' tracks well with a a sense of powerlessness, both personal and political. The first element of the thing is not too dangerous, as persons who perceive themselves as powerless personally generally are, while the second, if widespread enough in a polity, can prove dangerous indeed, as feeling unable to effect the actions of one's government or functions of one's society can lead to apathetic withdrawl, or angry and violent engagement, often without much clear sense of what actually is wrong, or how it can be fixed.

Second, adherence to 'conspiracy theories' provides two particular spiritual balms. Such theories provide a sense of certainty and understanding, both hard to come by in this modern world, and such theories provide a sense of being on the 'inside', of knowing more and understanding more, in short, a sense of being superior, to the mass of other people who just cannot see, and do not 'get it'. These feelings are very comforting, and especially so for people who actually do feel powerless and isolated and left behind.

February 21, 2014

The Whole 'Substitution' Line Is Utterly Bogus, Ma'am

If the price of some articles rise, and a person therefore purchases different items in substitution, at lower cost and of lower quality, while that person may be paying about the same amount, they are getting less value for it, and therefore their standard of living has not kept pace with rising costs. The purpose of a cost of living index is to maintain the standard of living of persons receiving income, or, in other words, to see that they can buy the same items they did formerly, when the cost of those items rises. Put even more coldly, the purpose of a cost of living index is to see to it people get the same value from their income as they did formerly when prices rise. The 'substitution' line is an open statement that the value people will receive for their income will drop as the price of goods rises. The people pressing this do not even try to hide it, save by leaving it in plain sight and trusting people will not look and see....

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