Tuesday, 27 April 2010

In a hung parliament a Lib Dem vote is a Lib Dem vote.

It’s on Twitter:

“Labour claim voting #libdems =voting Tories who claim #Libdems = Labour. Clearly #labservatives think voters = stupid”

(Tweeted by @El_Cuervo)

There is one big reason why a vote for the Liberal Democrats is a vote for the Liberal Democrats:
A hung Parliament

On 6th May your constituency will elect a Member of Parliament. Under the First Past the Post system beloved of David Cameron and Gordon Brown your MP would normally take up his seat in a House with a clear overall majority. As a consequence your MP would spend the next four to five years being ignored.

Most of the governing party’s MP’s sit on the backbenches and do as they are told. They vote in accordance with the whips dictates. Those who gain ministerial positions do so because they have set aside their personal convictions and their constituents interests to do what the whips tell them. The whips instructions come from the cabinet. Opposition party MP’s are totally ignored.

Unless your constituency elects a cabinet minister (and, face it, they’re all in such safe constituencies that your vote won't make a blind bit of difference) your representative will have no input. You’ll hear of the odd “rebellion” every now and again, but you know nothing will come of it. Those few MP’s brave enough to defy the whip are never enough.

In a hung parliament that changes. There will still be whips, of course. There will still be a cabinet, there will still be “party discipline”. But in a hung parliament each an every rebellion has a chance of success. Any combination of the three main parties has a majority. Each party has enough factions that, on an issue of real importance, sufficient rebels can be found.

Now I don’t think we’ll hear of many rebellions. For why is the exciting part: the cabinet will have to consult. They’ll want to make their policy and administration rebellion-proof. This they can only do, in a hung Parliament, by modifying their policy and administration to take into account the opinions of the House as a whole. Opposition MPs may still get a look in, for every opposition MP that supports you on one issue you can afford to annoy one of your own so the government will consult them as well.

Oh, it’s not going to be a utopian vision of calm rationality and open debate. Your MP won't have anything like a veto. It’ll be shouting, back room deals and party pressure. For the most part nothing will change but the MPs will not be ignored completely they will have some input. Which means that each and every Liberal Democrat MP elected will, whatever the governing coalition, have some real input into government of this country. MPs deciding things? MPs controlling the executive? No wonder Cameron doesn’t like the prospect.

But the value of a Liberal Democrat vote goes further than just the electing an MP who will be able to act, well, as an MP. A deal will have to be struck to create a government. A negotiation will take place. Most power in the negotiations will arise from the numbers of MPs each party can bring to the table. Some moral advantage, though, will come from the numbers of votes secured. Coming first in the vote will give more moral advantage than second, second more than third. 34% will count for more than 33%, not enough of course, but it will count. However miniscule the effect it will be more than the effect when a majority government is return: absolute zero.

Each and every vote for a Liberal Democrat will give some, tiny advantage to the Liberal Democrats in negotiations. Even if you live in David Cameron’s constituency, or Gordon Brown’s and have no hope of electing a Liberal Democrat MP it will have some effect. In this election no vote for the Liberal Democrats is “wasted”.

All votes will count.

Vote Liberal Democrat.


Saturday, 24 April 2010

Four suggestions on "proof" in libel

There are lots of things that need addressing in libel reform. Should corporations be able to sue? How on earth can we reduce costs to an acceptable level? And, of course, what "proof" should be presented and by which side. Below are three suggestions I have, not for "reversing" the burden of proof but re-thinking proof-in-libel altogether.

Facts, opinion and burdens of proof

The defences open to a defendant in English law depend on whether the words complained of express an “opinion” or a “fact”. Broadly (very – see here for a better outline ) if the words complained of make a verifiable claim then the defendant had better damn well verify it. The burden of proof here is firmly with the defendant. The complainant is not, in any way, required to show that the claim is false. If the words complained of are the expression of an opinion then (absent malice) the defendant need only show that it is an honest opinion.

In libel reform discussions it is often put forward that the burden of proof should be reversed: that the claimant should be required to show any factual allegations made to be false. This seems nice and simple but is fraught with difficulties. The difficulties arise because the fact/opinion dichotomy is too, well, dichotomous.

There are facts about the world, things that if said would be true. Unfortunately not all, in fact very few, of those facts are either known or readily discoverable. Thus we have opinions about facts.

Some facts we do not have "opinions" on or, if we do, we all share the same opinion or, if we don't, we consider those who differ in opinion lacking in knowledge, mad or bad. "Jack Kennedy was assassinated in Texas" is a fact in this sense. We can call "this sense" a "Fact", in inverted commas and with a capital "F".

If there are one or more putative “Facts” on which the case depends I see no problem in asking the complainant to establish them. The reason they are “Facts” is that they already have been established and their demonstration to others who do not accept them is a simple and straightforward matter. In the case imagined we could simply pull out a history book. Failure to meet a reversed burden of proof on this type of "Fact" would not unjustly disadvantage claimants: it merely invalidates the judgement that the case involves “Facts”. Pure “Facts” cases should be “open and shut” cases where, if the claimant can show that no informed person could reasonably believe what had been said then the claimant can cut out all the argument and the court starts looking at compensation.

But the vast majority of cases will not be decided on the basis of "Facts". They will have at their heart a putative fact such as “Lee Harvey Oswald assassinated Jack Kennedy”. Yes, this is a factual statement: one of “Lee Harvey Oswald assassinated Jack Kennedy” and “Lee Harvey Oswald is innocent” is a fact. But it is not a "Fact", we can reasonably put forward either one and "opinion" becomes inextricably mixed with fact. On the current "Fact"/verify "opinion"/honest basis, together with an understanding that most interesting facts are also matters of opinion, almost all libel cases would revolve around "honest opinion".

That seems way too broad to me. Interpreted one way it allows anyone to shoot their mouth off merely on the basis that they "honestly believe" an allegation. Interpreted another way it pretty well stops us saying anything at all. There is a difference between saying:
1. X is a paedophile
2. X cheated on his expenses
3. X supports Liverpool Football Club
All three are defamatory and any one of us may honestly hold that opinion about any other person. I would contend that whilst I could happily throw about the accusation that X supported Liverpool Football Club when there was not a jot of eidence I should have reasonable evidence for claiming that he cheated on his expenses. If I were to, publicly, claim that X was a paedophile then I should have very strong evidence indeed. The “honesty” of my opinion doesn’t enter into our judgements as to whether the claim can be put forward. The level of evidence required does and appears to vary with just how defamatory the accusation is. An overarching principle, such as “honestly held” would risk overriding that. If newspaper A alleged that X was a paedophile, X would effectively be prevented from seeking redress if all the defendant needed to show was that he had a conversation in a pub and as a result believed X was a paedophile. On the other hand my rights to free expression would be unfairly curtailed if I were not allowed to say “Dr. Evan Harris supports Liverpool” without conclusive proof.

Suggestion 1: Anything other than facts that are readily established, to the extant that anyone with knowledge, sanity and goodwill, should be treated as "opinion"
Suggestion 2: At the initial hearing in any libel case the claimant should be offered the opportunity to show that the allegations made would be recognised as false by anyone with knowledge, sanity and goodwill. If he established that then the court would, in that hearing, assess how defamatory the allegations were and what recompense (if any) was appropriate.

Suggestion 3: At the initial hearing the court should look forward to the likely damages that would be awarded as a way of determining the extent of the defamation caused by any opinion. Based on this the court would decide the nature and extent of reasons the defendant should have had before making the allegation.

Harm done and what is the defamation

We can consider a real case for this bit, the BCA’s claim against Simon Singh which they have recently discontinued after an adverse ruling by the Court of Appeal. The BCA contended that they were libelled (ie defamed unjustly) by the following words:

“The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”

The BCA press release of 15th April 2010 states that the BCA still considers that it was defamed by Simon Singh in the article. Of course it was defamed and remains defamed. Given the lightest reading from the Court of Appeal decision the article claimed that the BCA promoted treatments for which there was no reliable evidence without regard to that lack of evidence. That is not a good way for a professional body to behave. Any decent person should downgrade their opinion of the BCA on the basis of this. The words had a defamatory meaning. What has not been established is whether the words unjustly defamed the BCA and the BCA seems to accept that they have no hope of establishing that they were unjust. On the basis of this allegation the BCA have dropped the case: we can term it the “accepted” allegation.

The BCA had hoped to show that an allegation had been made that they had promoted the treatments when they knew that there was no evidence reliable or otherwise. It can be argued (indeed it was accepted) that Simon did not have sufficient evidence to establish that the BCA knew the state of evidence of the treatments. Neither could Simon have established that there was no evidence reliable or otherwise for the treatments. If one accepts that evidence can be unreliable and still be evidence (I don't) then the BCA have lots of evidence even though it is shit evidence. We can call the allegation of "no evidence, reliable or otherwise" and the BCA's knowledge the "disputed" allegation.

The issue before the Court of Appeal was whether Simon had made the accepted allegation or the disputed one. And it seems a fairly reasonable issue to address. If Simon had made the accepted allegation he was in the clear. If he had made the disputed allegation, an allegation he did not have good grounds to make, he was in trouble.

But hold on, what if:
1. The accepted allegation is just as defamatory as the disputed one and
2. Simon first (clearly) made the accepted allegation and later made the disputed allegation.

As above the level of evidence required to back up an allegation depends on the defamatory effect of the allegation. In this scenario the, later, disputed allegation has no defamatory effect: the BCA's reputation would have already been trashed by the accepted allegation.

Simon would appear to be varyingly liable dependent on the order in which he made the allegations. But this is clearly unjust. The damage to the BCA’s reputation does not similarly vary dependent on the order in which the allegations are made: the link between the damage Simon does and his liability is broken.

Suggestion 4: The court should break allegations apart. The grounds for making the allegation that the defendant need show should be set on the basis of the marginal defamatory impact of the particular part considered.

(In the BCA case, the court might have been unlikely to consider the marginal defamation of the disputed allegation to be nil. However the court may well have decided that the marginal defamation was not very much and, thus, that Simon had to show very liitle reason to make the allegation.)


Tuesday, 6 April 2010

In Defence of Hume’s Guillotine

It may, of course, be a false memory but I remember one clear sign that the last Conservative government had “lost it”. Minister after minister would be interviewed on television and repeat the mantra that they needed to better explain their policies. They saw growing opposition not as a sign that they should re-think their policies but that their policies were sound and anyone would support them if they were just communicated correctly. The idea that they were simply wrong never seemed to occur to them.

Sam Harris gave an eighteen minute “TED” talk entitled “Science can answer moral questions” and ran into some pretty forthright opposition. Much of this opposition Harris seemed to lay at the difficulty in properly explaining himself in the time available:

“18 minutes is not a lot of time in which to present a detailed argument” (Harris, 2010)

Listening to the talk I saw little that extra detail would add. My opposition, and the opposition of others, was guaranteed by the title. We subscribe to Hume’s Guillotine, the old maxim that you cannot derive an ought statement from an is statement. Harris mentioned the Guillotine in the opening minutes of the speech

“it’s often thought that there is no description of the way the world is that can tell us how the world out to be”.

Absent some pretty clear and interesting arguments that Hume’s Guillotine was wrong (and there were none such in the talk) it is clear that any moral system based on deriving ought from is would be wrong. No amount of explanation, no more clarity, would add to that. Harris had not fallen foul of a time limit but of a basic logical error. I am a little jealous of the pithy way Sean Carroll put it:

“Attempts to derive ought from is are like attempts to reach an odd number by adding together even numbers. If someone claims that they’ve done it, you don’t have to check their math; you know that they’ve made a mistake. (Carroll, 2010)”

Harris is of the opinion that not only is Hume’s Guillotine “clearly wrong” (the talk) but that there is something wrong in holding to it:

“Many of my critics piously cite Hume’s is/ought distinction as though it were well known to be the last word on the subject of morality until the end of time. Indeed, Carroll appears to think that Hume’s lazy analysis of facts and values is so compelling that he elevates it to the status of mathematical truth”

To be fair to Harris many people adopt Hume’s Guillotine unargued for. It is time that we examined the Guillotine, which I shall do below. We will not find it to be a “mathematical truth”, but will see that it is a logical one.

The claim made by Hume’s Guillotine

“In every system of morality, which I have hitherto met with, I have always remark'd, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when all of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it shou'd be observ'd and explain'd; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it.”
(Hume, 1739)

The key claim is that some reason should be given for the introduction of an ought statement, a reason that cannot be given by however long a chain of is statements. It is not the claim that there are no moral facts, it is the claim that if there are moral facts then these do not derive from non-moral facts. It is not the claim that part of a moral argument cannot be formed of non-moral facts, that is statements cannot help in our formulation of ought statements. It is the claim that if we conclude “ought…” then we must have “ought…” somewhere in our premises: that there is a reason for “ought” and that is another “ought”.

The form of arguments

(By “arguments” I do not mean some disagreement or row. For “argument” I adopt the Monty Python definition: “a connected series of statements to establish a definite proposition”)

All arguments can be represented in the following form:

1. Premises
2. Conclusion

Arguments are generally split into deductive and inductive arguments with deductive arguments thought to be conclusive, whilst inductive arguments non-conclusive.

A deductive argument is one where, if the premises are accepted, the conclusion cannot be denied without contradiction. The old example is:

1. (Premise) All men are mortal
2. (Premise) Socrates is a man
3. (Conclusion) Socrates is mortal

If one were to deny Socrates’ mortality then, to maintain consistency, one would either have to deny than Socrates was a man (and thus deny the second premise) or claim the existence of at least one non-mortal man (and thus deny the first premise).

Non-conclusive arguments are termed inductive. The premises are held to be indicative of the conclusion, lend some support to the conclusion, make the conclusion more likely or whatever but the conclusion can still be denied without contradiction. Whilst we may conclude that “all ravens are black” because all the many hitherto seen ravens have been black there is no contradiction in believing that purple ravens may exist somewhere, have existed or will come to exist.

How conclusive arguments work

In the Socrates example we begin with a generalisation: “all men are mortal”. This statement has consequences, lots of them. It means that Plato is mortal, Aristotle is mortal, Cratylus and Xenophanes are mortal. It means that anything of which we can say “is a man” is mortal.

The second premise, “Socrates is a man”, picks out just one of those consequences. We could have picked out any of the other consequences, that about Plato or Aristotle or any of the others. The key issue is that we would be picking out a consequence of “all men are mortal”, a consequence that (to be picked out) must already be there. Before we make the specific statement that Socrates is mortal we have already said it in general.

Kant calls this picking out of consequence that is already there “analytic”:

“(I)f I say: “All bodies are extended,” then this is an analytic judgement. For I do not need to go outside the concept that I combine with the word “body” in order to find that extension is connected with it” (Kant, 1998, p. 130)

The conclusion to a conclusive argument contains no more than is contained in the premises of the argument.


Now all arguments on which we rely are, in a certain way, conclusive. That “certain way” is that we conclude. As a consequence, in principle, a logically conclusive argument can be reconstructed for any accepted proposition.

It is important not to confuse “conclusive” with “shown to be true”. If we conclude incorrectly then we still conclude and there are still reasons why we conclude how we did. “Conclusive” should not even be confused with “rational” or “reasonable”. If we come to an entirely unreasonable conclusion we do so because, well, we are being entirely unreasonable. We still have reasons why we conclude as we do even if they are not thought to be particularly good reasons.

If, for example, I conclude that “the pixies are after me” you might think me insane. “Insane” would be a reason put forward to explain my, otherwise odd, conclusion. Only insane people think that pixies are “after them” when everything else is normal and, given a few ancillary facts, certain types of insanity will lead one to believe in malevolent pixies. Here is the argument:

1. Pixie-type insanity
2. Ancillary facts
3. (Conclusion) The pixies are after me

The “pixie-type insanity” I have imagined above has as part of its consequences a range of situations where the sufferer (me) would become convinced that pixies were after him. The ancillary facts pick out one of those situations: situations that, as with individual mortal men, are already there. We need not go “outside the concept” of “pixie-type insanity” to find the conclusion.

On non-insanity inspired arguments, Kant expands his “containing” concept:

“in synthetic judgements I must have in addition to the concept of the subject something else (X) on which the understanding depends…(i)n the case of empirical judgements of experience there is no difficulty here. For this X is the complete experience of the object that I think through some concept A.(Kant, 1998, p. 131)”

When saying something about the world (“synthetic judgements”) requires us to go “outside” the concepts we hold. The concepts we hold do not “contain” descriptions of the world. To remain conclusive the arguments we put forward must have something about the world (the “X”) added to our premises. It is the fact that, from Hume’s arguments against induction, this X is contains more than we can possibly derive from empirical data that motivates the entire Critique of Pure Reason: where do the extra premises come from?

Whether or not Kant is successful in overcoming “Hume’s problem” (of induction) or, indeed whether Hume’ arguments against induction are sound, we can see the problem behind the critique: what reasons do we have for concluding on the basis of seemingly inconclusive arguments. How do we make the arguments conclusive?

The same issue faces us with “all ravens are black”. The evidence we have is not conclusive, it is compatible with a number of different propositions. Yet we do conclude. Somewhere, buried in our heads, must be another principle which, together with the arguments we put forward, entails “all ravens are black”.

Back to Hume’s Guillotine


1. All arguments are conclusive
2. The conclusion of a conclusive argument is “contained” in its premises
3. A conclusion that expresses a “should” has a premise that expresses a “should”

---Edit---12th April 2010

Dave Lull has sent me a number of links to another blogger's detailed examination of the is/ought distinction in Hume:

Reading Hume on Ought and Is

On Ought and Is, II

Hume on Ought and Is, Part I: Background

Hume on Ought and Is, Part II: The Argument

Hume on Ought and Is, Part III:

Is-Ought Muddles

Blackford and Is/Ought

Works Cited
Carroll, S. (2010, 03 24). The Moral Equivalent of the Parallel Postulate. Retrieved 04 05, 2010, from Discover: http://blogs.discovermagazine.com/cosmicvariance/2010/03/24/the-moral-equivalent-of-the-parallel-postulate/
Harris, S. (2010, March 29). Moral confusion in the name of science. Retrieved April 5, 2010, from Project Reason: http://www.project-reason.org/newsfeed/item/moral_confusion_in_the_name_of_science3/
Hume, D. (1739). A Treatise of Human Nature. London: John Noon.
Kant, I. (. (1998). Critique of Pure Reason. Cambridge: Cambridge University Press.