Law – Page 6 – a sibilant intake of breath

Global wealth disclosure as a step toward redistribution

It’s a fantasy to imagine that today’s governments would confront the wealthy in this way, but it’s nonetheless of some value to think about some of the barriers to major global redistribution and potential means through which they might be surmounted.

As with other major global challenges like nuclear proliferation there is a coordination problem in establishing more redistributive policies. People say that if one country starts taxing wealth, or land, or otherwise working to rebalance income and wealth across their society, those with the most will simply move elsewhere, either physically or legally for tax purposes.

As a preliminary step, there may be some value is simply compelling ‘high net worth’ individuals to disclose their worldwide financial dealings to any country where they want major government benefits, from the protection of their intellectual property to government contracts and support for their businesses. Remember that private property is a fiction that governments choose to uphold, not a fact of the universe or something that individuals can meaningfully assert for themselves. Every major country could agree on a financial disclosure standard that is (a) intended to capture a person’s economic activity all over the world and (b) designed to overcome deliberate obfuscation through corporations, trusts, and other legal mechanisms which can conceal who owns and benefits from what.

Governments have many potential levers to compel compliance, from visa rules to the tax system, and it’s especially plausible that the rich would comply if most appealing jurisdictions to live in acted simultaneously: say, the EU (including poor muddled Britain), the US and Canada, Japan and China, Australia and New Zealand, and a few others to start with. Doubtless such a reporting obligation would drive a flurry of new consulting activity to help rich people avoid it or minimize what they disclose, but it would nonetheless be a step toward transparency and an important reminder that even those with the freedom to travel and live wherever they like ultimately derive much of their wealth from countries with capable bureaucracies and that they aren’t immune from the sovereignty of those states.

What it’s like to hear but not see the Toronto Air Show

A tweet of mine, written in a moment of irritability aggravated by the sound of jets roaring overhead, has gotten some attention by virtue of being incorporated into some news articles about social media commentary on the Toronto Air Show.

In addition to my standard gripes about the wastefulness of jet engine use, the undesirability of unwanted background noise, and the militarism embodied in combat aircraft development, I suggested that there are people in Toronto who find the experience of being a bystander during the noise as troubling or a reminder of trauma, having heard military jets operating at close quarters during any number of recent conflicts, from Gaza to Afghanistan to Yemen, or during interception flights carried out by domestic air forces.

A disturbing amount of the response on Twitter expressed anti-immigrant sentiment, particularly an assertion that (a) people who have experienced conflict and now live in Toronto now live in preferable life circumstances and therefore (b) they owe certain moral obligations to people who previously lived in the place they now inhabit, to wit just lumping it and not complaining while these acrobatic displays are put on. To some extent my interpretation of the comments was inevitably coloured by Twitter’s reputation as an especially hostile and personal platform, but I think even when viewed with as much objectivity as can be mustered they brought unnecessary hostility to a discussion ultimately about public policy, specifically whether such spectacles should continue.

It’s entirely fair to criticize me for assuming what somebody else’s life experience would mean, in terms of their experience of these noises. That being said, the basic parameters of something like post-traumatic stress disorder are publicly known and it seems plausible to me that anyone who has traumatic memories of being close to combat in which jets operated (whether as a soldier or a civilian) would have some chance of being triggered by the sound of an air show. Given the population of Toronto, it’s plausible that hundreds of people with PTSD are within earshot of each loud noise made by flying aircraft. It’s much more speculative, but I have also wondered about the number of people who can have panic attracts triggered by a stimulus like a jet engine sound find it triggering due to associations they have made through fiction, specifically quasi-realistic military computer games and films which realistically depict violence like Saving Private Ryan. Statistically very few people, even during times of mass conscription, faced intense combat of the kind depicted in the film, but probably a majority of the adult population has now seen multiple detailed immersive representations, whether through films like Spielberg’s or depictions like HBO’s Generation Kill or Band of Brothers.

I don’t want to suggest that it’s the same thing at all, but I have my own negative associations with hearing but not seeing military jets at low altitude nearby, as I lived in North Oxford within earshot of at least some of the approaches to RAF Brize Norton and we used to listen to Vickers refuelling aircraft and B-52s flying in at all times of day and night (familiar eventually in their shrieks and rumbles) and speculate about whether they were coming back from Iraq or from Afghanistan, maybe carrying coffins.

I don’t think social media griping is going to lead to the abolition of the airshow, but I do think it’s a good thing to have a public dialog about what people in the city are going through in terms of their mental health and the choices we make together affecting it.

Those with any opinions on the matter are invited to comment, anonymously if you like.

The question of control

The question of control is a touchy one. No segment of the population feels powerlessness more acutely than Downtown Eastside drug addicts. Even the average citizen finds it difficult to question medical authority, for a host of cultural and psychological reasons. As an authority figure, the doctor triggers deeply ingrained feelings of childhood powerlessness in many of us—I had that experience even years after completing medical training when I needed care for myself. But in the case of the drug addict, the disempowerment is real, palpable and quite in the present. Engaged in illegal activities to support her habit—her very habit being illegal—she is on all sides hemmed in by laws, rules and regulations. It occurs to me at times that, in the view of my addicted patients, the roles of detective, prosecutor and judge are grafted onto my duties as a physician. I am there not only as a healer, but also as an enforcer.

Coming most commonly from a socially deprived background and having passed through courts and prisons repeatedly, the Downtown Eastside addict is unaccustomed to challenging authority directly. Dependent on the physician for her lifeline methadone prescription, she is in no position to assert herself. If she doesn’t like her doctor, she has little latitude to seek care elsewhere: downtown clinics are not eager to accept each other’s “problem” clients. Many addicts speak bitterly about medical personnel who, they find, impose their “my-way-or-the-highway” authority with arrogance and insensitivity. In any confrontation with authority, be it nurse, doctor, police officer or hospital security guard, the addict is virtually helpless. No one will accept her side of the story—or act on it even if they do.

Maté, Gabor. In The Realm of Hungry Ghosts: Close Encounters with Addiction. 2012. p. 48–9

Canada’s message to the world

Yesterday I photographed two rallies outside Toronto-area offices of Members of Parliament and Ministers of Finance and Foreign Affairs Bill Morneau and Chrystia Freeland.

With Freeland we asked if Canada was now going to withdraw our signature from the Paris Agreement. The sentiment was crafted to be possible to express in one photograph, but the issues are nonetheless closely related. The Paris Agreement’s central operative clause is an aspiration to: “Hold the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change”.

I say “aspiration” because the agreement says little about implementation. This is a treaty negotiated with the participation of every country on Earth and there are many who would have objected to explaining what those temperature targets mean in terms of greenhouse gasses, fossil fuels, and public policy. There are some who hope a magical technology will let us burn all these fossil fuels without dangerously warming the planet, but there are good reasons to question the efficacy and ethics of both geoengineering and carbon sequestration. As for a marvellous new energy technology so much better than both climate-safe options like nuclear fission and renewables and fossil fuel options, I don’t see that happening during the critical window of only a couple of decades where we will decide if the Paris targets can ever be attained or not.

The Paris Agreement is ambitious in its ultimate objective but frighteningly imprecise about the means of getting there. That means that for the decades ahead the locus of diplomacy will have to be convincing countries facing major problems of poverty and regional insecurity to commit fully to decarbonization as well. To achieve that, countries which have historically used the largest amounts of fossil fuel and where emissions per person continue to be the highest will need to be seen to be doing their part, cheerfully and in a spirit of global cooperation.

The clearest signals we’re sending are the big energy choices we make. A new pipeline says that the bitumen sands can continue to grow and that we expect fossil fuel use to remain as high as it is now for decades to come. It says that we’re not serious about Paris or avoiding dangerous climate change.

Canadian politicians want an easy answer that can satisfy Alberta, Saskatchewan, and the oil industry while also showing that sort of global leadership. That isn’t possible. At some point all of Canada needs to have a hard conversation about shutting down the oil sands industry, and that process needs to begin now by definitively stopping expansion.

To some degree the fights over Keystone XL, the Northern Gateway pipeline, and Energy East have already sent important signals to industry. If you want a big fossil fuel project now, it is going to be a fight. That message is actually reinforced by the Trudeau government’s decision to buy the Trans Mountain project. They think they’re telling industry that the federal government will step in to get things done, but they’re also suggesting that projects like this aren’t viable without exceptional government support. Even if Trudeau welds the last section of pipe personally, and the government’s dream of recovering taxpayer funds by selling the pipeline to the private sector is fulfilled, there will be big questions about how much sense any further bitumen sands expansion will make.

Open thread: ballistic missile defence

An episode involving missile defence* from the West Wing holds up very well today. The craggy old American chief of staff is in favour, out of fear of what rogue regimes might do to America. The British ambassador is opposed because it’s impractical, violates international law, and risks worsening the global nuclear weapons situation.

I can see why people like the idea of being able to stop a few missiles launched by North Korea or Iran, or by a rogue commander somewhere. At the same time, I think the dangers of a nuclear arms race make the development and deployment of such a system unwise, even if the major technological hurdles could be overcome. It’s the classic security dilemma: you build something meant to make you safer, potential opponents interpret it as making them less safe (by reducing the credibility of their deterrent) so they build expensive countermeasures. In the end, everyone has wasted money on the race and everyone ends up less safe. It could also tempt decision-makers into recklessness, based on false confidence that the system will nullify any response to their aggression.

We should be working to de-alert and dismantle the nuclear arsenals of the authorized nuclear powers under the Non-Proliferation Treaty. Against that backdrop, resisting proliferation to new nuclear states would be more plausible.

* I don’t mean defending things like aircraft carriers from ballistic missiles. I mean systems to protect domestically-located military facilities and population centres from ballistic missile attack, probably with nuclear weapons.

Open thread: decolonization in Canada

Supposedly, Canada is in the midst of a national effort at moving toward reconciliation after centuries of exploiting and oppressing its Indigenous populations. Signs include efforts to protect and investigate crimes against Indigenous women and girls; the renaming of buildings and monuments to people who played a role in Canada’s troubling past; and supposedly efforts to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – though here, as in so many other areas, there is good cause to question the sincerity of the Trudeau government.

Of course, there has been resistance from white supremacists and others.

It’s encouraging to see Halifax taking down Cornwallis monuments (put a bounty on the Mi’kmaq in 1749) and the Langevin block in Ottawa renamed (helped set up Canada’s genocidal residential schools). I would like to see everything named after Columbus renamed, though ultimately renaming is a small and symbolic part of what decolonization will need to include.

In the long term, Canada needs to recognize that its sovereignty has always been illegitimate – based on coerced treaties that Canada has routinely violated or the naked use of force. The path toward reconciliation can’t be seen from beginning to end in advance, but some of the actions we ought to be taking seem pretty clear, starting with providing services in Indigenous communities comparable to those in the rest of Canada, helping Indigenous peoples built toward self-government, and no longer imposing economic and resource projects on them despite their political and legal opposition.

B.C.’s latest move against the Kinder Morgan pipeline

When it comes to stopping unsustainable fossil fuel development, anything that creates investor uncertainty can be useful. By that metric, the British Columbia government’s announcement of a diluted bitumen shipment expansion moratorium while it studies how a diluted bitumen spill would unfold is a small contribution to shifting Canada to an acceptable development pathway.

Still, I wish governments would look squarely at the real problem: the fundamental contradiction between continued fossil fuel exploitation and the climatic stability objectives that states including Canada asserted in the United Nations Framework Convention on Climate Change, the Paris Agreement, and in their own climate announcements. Making it all about local issues may be politics as usual, but it misses the main ethical issues at play.

Arbitrary power and moral corrosion

It seems to be a feature of human psychology that arbitrary power over others corrodes virtue. That claim can be supported by highly artificial (and unscientific) situations like the Stanford prison experiment, but it’s also evident in day-to-day interactions. We may hope that an innate sense of fairness would be enough to usually stop people from pressing an undeserved advantage; failing that, people might be counted on to recognize that we tend to interact with the same people over and over, and reputation is important, so it’s in our interest not to exploit a unilateral advantage. And yet, when actually put in the situation where we can dictate terms to others, too often we use the power for selfish ends while pulling together a rationalizing story for ourselves about how what we’re doing is savvy, or fair, or even benevolent.

Perhaps the most extreme case of arbitrary power concerns decisions made today that affect future generations. I think Henry Shue’s moral analysis of climate change is among the most perceptive accounts of the problem:

The ones who need to worry about severe climate change are the most vulnerable, including children yet to be born, who may reap the whirlwind if we sow the wind. Those who will suffer most, if anyone does, will be people with absolutely no past role in causing the problem and with no other kind of responsibility for it (and other species, most with no capacity for morally responsible action but full capacity for suffering and frustration). This would put the wrong done by the avoidable precipitation of severe climate change, it seems to me, in the general moral category of the infliction of damage or the risk of damage on the innocent and the defenseless. This is far worse than simply neglecting to protect rights, as wrong as that is, and it more like recklessly dropping bombs without knowing or caring whom they might hit. Can someone seriously argue that we are not morally responsibilty for avoiding the wreaking of such havoc?

Shue, Henry. “Deadly Delays, Saving Opportunities” in Gardiner, Stephen et al eds. Climate Ethics: Essential Readings. Oxford; Oxford University Press. 2010.

What remedies exist for these dangers of arbitrary power? They fall into three categories.

At the individual level, first we can work to guard against the risk of behaving in this way when we’re the ones with the power. Trying to apply a Kantian notion of acting in the way we would like everybody to act may provide some protective restraint. We can make sure to have open communication with the people affected by our choices, and work to maintain a willingness to hear what they tell us. Especially when it comes to person-to-person interactions, we should avoid the perspective that it’s virtuous and a sign of intelligence and capability to take as much as possible and leave the others involved with only the scraps they were able to hold onto. We should avoid perspectives on ethics based around entitlement – the view that because things have been one way in the past, we have a right for them to continue that way forever. It’s a form of reasoning that entrenches injustice, and which perpetuates ever-worsening outcomes when we assert the right to the over-generous fish and water allowances of the past while turning the land and sea to desert. The ethics of a situation must be evaluated with changing circumstances borne in mind, and with no automatic value attributed to arrangements which are long-standing.

As individuals we can also use social pressure to discourage and punish selfish behaviour. We can make public records of cases where people have abused their power over others and use those records to punish the abusers in cases where they have become subject to the power of someone else. The internet could be a big help with this, since sharing the information is easy, and it is easy for others to find. It’s not much help against the most dishonest — con artists who create a new identity in each town they visit — but it could provide some protection against abuse by those who operate under their own name and generally seek to preserve their good reputation. This is one reason we should be skeptical when people assert a “right to be forgotten” that applies to true information they would prefer others not to know about.

At a societal level we can and do enact policies that limit arbitrary power and provide recourse and remedies. This is especially important when circumstances make people vulnerable to abuse: whether they are seeking housing in an over-heated market, employed in a dangerous trade, or otherwise at risk. This is a big reason why criminal prohibition of things like sex work and psychoactive drugs actively causes harm: it puts vulnerable people in a situation where they cannot complain or seek help from the authorities. We need to be mindful of situations where regulation creates in-between spaces where the rules don’t apply, such as by leaving precarious workers without the legal right to employment under the power of abusive employers.

Perhaps in the long term human beings are capable of moral growth. More immediately, we can design and operate institutions which work with people’s imperfections and which mitigate the harmful impacts they create on others. We can also demand more of the people who we know. In a world that has grown crowded with existential dangers we have created for ourselves, acting with generosity toward others has grown beyond a virtuous extra to be applauded. It has become bound up with the potential for human survival and flourishing. Those espousing a moral philosophy where what you deserve is determined by the power you hold and the ruthlessness with which you wield it should gradually find themselves without power, and without the respect of the community.

Galicia Division controversy

The National Post is reporting on controversial Canadian monuments to Ukrainians who volunteered to fight with the Waffen-SS starting in 1943. A large number of those who fought in the division immigrated to Canada after the war, aided in part by intervention from the Roman Catholic Church. While the immediate context of the controversy is critical comments from the Russian embassy (possibly with questionable motives), some of those quoted advocate more critical thought within the Ukrainian community about the wartime roles of their compatriots:

“It would be refreshing and perhaps a form of self-healing …” writes University of Alberta professor David Marples in a 2007 book on “heroes and villains” in Ukrainian national history, “if Ukrainians could offer a conception of their recent past that looked at all aspects of these events, recognizing in passing that heroes could be criminals.”

One of the monuments in question is at St. Volodymyr Cemetery in Oakville, Ont. It commemorates a major battle, the Brody, fought by the Ukrainian Galician Division of the German Waffen-SS against the Soviet Red Army, during which more than three-quarters of the Ukrainian soldiers perished.

The article also describes potential involvement of future Galician Division soldiers in anti-Semitic actions and war crimes. A spokesperson for the B’nai Brith is quoted saying that they would oppose future such monuments, but do not object to the existing ones remaining in place.

The article mentions the Commission of Inquiry on War Criminals in Canada (Deschênes Commission) which concluded in 1986 “that members of the Galician Division who immigrated to Canada hadn’t had charges against them substantiated”. I was once able to briefly speak with a former commission member at a Massey College event, but he did little but reiterate the high level conclusions of the commission.

I should read Marples’ book.

Plea bargains

In several important ways, the plea bargain system in American courts perverts justice: encouraging prosecutors to pile on charges in hopes of frightening defendants into bargaining, and forcing those being charged to consider falsely pleading guilty because the punishment that would arise from going to trial and losing would be massive.

Nonetheless, The Economist reports that plea bargaining is spreading, from 19 countries in 1990 to 66 now. In federal courts in the United States, “close to 100%” of convictions arise from plea bargains. Less than 3% of federal court defendants go to trial.

The flaws with plea bargaining dovetail with other injustices, from the insufficient provision of public defence lawyers to the structural discrimination embedded in discretionary prosecution and exploitation of civil forfeiture.