In what you see as yet … there may perhaps be no great mischief; but depend upon it, in the quarter from whence these proposed [noxious] arrangements come, there are many behind that are of a very different complexion; of these [noxious] ones are suffered to be carried, others of a noxious character will succeed without end, and will be carried likewise.

Jeremy Bentham[1]

[This is Phil, and I’m here to talk about sociology and the law, or more particularly about some recent court decisions involving President Trump, his executive orders[2] on travel to the U.S., and whether they should be blocked. I’m not a lawyer, and I’m not going to get involved in the legalities, and in any case those issues will be decided through appeals and perhaps ultimately by our Supreme Court. I’ll leave it at that.

But I am very interested in what the politicians have to say, and the pundits, because their reactions are a very different thing. Too often they’re examples of political fallacies in action. And what are political fallacies? Well, they’re what Jeremy Bentham talked about nearly 200 years ago. They are, for the most part, either outright mistakes in logic, or irrelevancies fraught with emotion, or both; but in any case are trotted out to distract us, the voters, from the real issues in play in our lives. [3] They are deceptions, not genuine arguments.

Bentham cataloged political fallacies back in the early 19th century, and he did a good job of it; but the American political animal is dangerous and inventive; and with continuous improvement over generations, the modern one has vastly improved the rhetorical weapons of our forefathers. We can thank the social media and their stogy “mainstream” counterparts for much of that. On the brighter side, some of our academics are paying close attention to this kind of thing, and have launched Bentham-like efforts to identify and catalog the new fallacies in play. One of these initiatives, combining the old with the new, currently lists 130 such techniques. [4] The list is good reading for anyone who’s interested in politics. You don’t have to accept all of it; just think about it.

If you know any sociologists, no doubt you’re aware that many things are more important than the law. There’s also what the people think about the law, how they interpret what’s going on, or in the jargon of the trade, how they socially construct[5] the reality of current events. For some folks the law may be simply irrelevant to their lives, at least until they run afoul of it. They see things differently than, perhaps, a lawyer might. Others may believe that the law permits what they want it to permit, and forbids what they think should be forbidden.[6] Neither group seems to think that it’s important to look at the law, as written, to see what it actually says.

What about politicians? Do they worry about what the law says, or about what people think it says? And how do they influence us?  By discussing the law and the facts? Or by trotting out an array of political fallacies to manipulate public opinion? Or do flexible politicians, interested in the next election, try for a combination of both?]

Again, this isn’t a legal brief. It’s more a philosophical analysis of what politicians and pundits think about the travel issue. I am the blog philosopher, after all.

  • President Trump now says he wants to interrupt the traffic flow from only six countries; that those countries have significant problems with terrorist activities; that while they are Muslim majority countries, the restrictions will apply to all people who come from those areas, not simply to Muslims; and that a more tailored approach will be taken once his administration thoroughly evaluates the actual risk posed by the current situation. Revised guidance will follow.
  • His opponents argue that his restrictions are based on religion – that his targets are Muslims; that a religious test to restrict travel is impermissible under the 1st Amendment; that while the President says that he doesn’t intend a “Muslim ban” they know it’s not true, because he advocated such a thing during the last campaign and surrounds himself with people who think the same way. Those facts “taint” even his current Executive Order. There’s no way a person biased like our President can be right about this. If we let him have his way on this temporary restriction, who knows where we will wind up? Indeed, he’s such a bigot the courts may not let him to regulate Muslim travel in any way, even though they might permit a different President to do so. He can’t be right about anything involving Muslims. Need proof? There are riots every time he gives a speech. Jewish community centers are being attacked. If this goes on we’re all doomed! And he has really strange hair.

Well, perhaps I overreacted a bit near the end. Anyway, let’s pick this stuff apart to see what’s involved.

The First Amendment

Freedom of religion isn’t a political fallacy. It’s a right guaranteed to us by our Constitution. Specifically the First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”[7] That seems pretty clear to me. Our lawmakers should remain neutral in religious matters. However, it’s also clear that Government neutrality doesn’t exempt from Government control everything that religious people might do. If cult members decide to murder nonconformists in their church basement, or to torture kittens for fun, I expect that would attract scrutiny from some government entity. I’m no lawyer but I’m also reasonably sure that human sacrifice isn’t permitted here, and we don’t murder people for blasphemy. Non-believers also have rights. As for the rest of it, I’m willing to let the courts decide what other limits on religious people, if any, are fair.

Trump Keeps Bad Company, Has Bad Motives, Has Made Prior Inconsistent Statements, Is a Bad Person, and a BIGOT!

So I introduced this piece with a quote from Jeremy Bentham which, I think, many of you found unintelligible. No worries, I understand; it takes a while to decode his prose even on a good day. So I’ll give you a translation. Don’t knock down a piece of legislation, or an Executive Order, or anything of that type by attacking the people the author knows. You have to focus on the thing itself; on the proposal, the rule, etc., and what it does; and generally such things are published, for anyone to see. Read it! If it’s a good proposal it would be stupid to knock it down simply because you don’t like the author or his friends. If it’s a bad one, why in the world would you want it to go forward, even if you like the author?

This attack is also called “guilt by association,[8]” and really is just one of the many ad hominem arguments currently in play. An ad hominem is, of course, an attack on the speaker, rather than on what he [or she] has said.  The point is to divert our attention from the arguments, probably because they’re persuasive, to some idiosyncrasy of the person making them. Politicians [or pundits] who do this generally are not very smart, or think their audience is stupid, or both. [9] At least that’s what Bentham thought.

Bentham in his day identified 6 attacks that he found particularly irksome.[10] These were the arguments that if a speaker has a bad character, bad motives, has said different things in the past, has suspicious connections, or is of the wrong religion, his [or her] proposals must be wrong.[11] Such attacks basically raise objections that are irrelevant to what’s being proposed. They’re like saying, for example:

  • “Don’t believe the speaker, because he once said something different. He changed his mind and shouldn’t do that!” Why not? I change mine, when there’s a reason to do so. What do you do? Never change? Never adjust to reality?
  • “Don’t believe the Pope on global warming, because he’s a Catholic; ignore the science he quotes, especially if it supports his position.”[12] Why would you do that, when the underlying question involves science? I’d check the science, not the Pope’s belief system

Then, of course, there’s the extreme form of the ad hominem, which is shouted name-calling. Don’t discuss the merits of expanding health care, just call anyone who wants to do that a Communist, and move on! Sounds like AM Talk Radio to me. Or you can use name-calling as a defense, rather than an attack. Simply say that, because of who you are, a woman, black, Jewish or whatever, “any and all arguments, disagreements or objections against [your] standpoint or actions are automatically racist, sexist, anti-Semitic, bigoted, discriminatory or hateful.”[13] Is that what Trump’s critics are saying about the Trump initiatives? That any action that restricts some travel by some Muslims is automatically hateful? Why is that? Because it makes them feel bad?

The Slippery Slope

What about the notion that, if Trump is allowed to stop travel here for even a short time, that will open the door to even more restrictions later. It’s best to not even get on that slippery slope. The implication here is that once we start down that path, we won’t be able to stop. Bentham says that’s ridiculous. If it’s a good idea to do an initial review, then let’s do it. Don’t refuse to look at problems, if they exist, simply because of what someone further on may propose as a solution. Deal with that issue when and if it arises.[14]

It’s not reasonable to say: “If we close Gitmo one thing will lead to another and before you know it armed terrorists will be strolling through our church doors with suicide belts proud as you please during the Sunday morning service right here in Garfield, Kansas!”[15] None of this is proved; at best it’s no more than a scenario, a speculation, and an unlikely one to boot! Right now the big problem in the U.S is the drug trade, and the leaders of that are not held in our facilities at Guantanamo Bay. If Guantanamo inmates ever posed a problem in the U.S., no doubt we would deal with them in due course.

Trump Causes Riots and Bomb Threats

This is about an old Latin maxim, post hoc, ergo propter hoc. [“After this, therefore because of it.”[16]] Trump gives speeches, and then there are riots, and threats against Jewish community centers. Therefore he caused that trouble, so he shouldn’t speak anymore! The plain truth is that the riddle of cause and effect is not solved so easily. When the rooster crows and the sun rises the rooster did not make it happen. The fact that AIDS first emerged when Disco music was popular, does not prove that Disco caused AIDS.[17] Correlation does not equal causation. If you think otherwise, you may be caught in a “classic paranoiac fallacy of attributing imaginary causality to random coincidences.”[18]

And, by the way, there’s news out there that some of the riots were staged, not spontaneous[19], and recently a crazed hacker was arrested in Israel as the person responsible for a majority of the bomb threats against Jewish community centers.[20]  How could that be? Where was Trump?

The Big Non Sequitur

Oppose Trump because his hair is awful! What’s wrong with that argument? What’s right with it? What’s the connection between the premise [Trump’s bad hair] and the conclusion [don’t vote for him!]. It makes absolutely no sense, but you heard it a lot during last year’s primaries. If you know someone who was persuaded by it, tell her she was trapped by the “deluded fallacy of offering reasons or conclusions that have no logical connection to the argument at hand.”[21] That should make your day.

Conclusion

This turned out to be a bit longer than originally intended. That happens when we get involved with political fallacies. The basic principle is simple; Jeremy Bentham had it right; “Whatever be the measure in hand, [political fallacies] are, with relation to it, irrelevant.”[22] So if you are looking at a project to build a municipal sewer system, and people tell you to vote for it because God wants it; or to vote against it because the chief proponent of it has a mistress, or there’s no scientific evidence that sewers are necessary, or it’s unnecessary because the world will end soon; then you will know, for sure, that none of them are serious. Go home and make up your own mind.

And, by the way, avoid the news coverage of Trump and his Executive Order on travel by foreigners coming here. That coverage is mostly crap!

 

[1] See Bentham & Bingham, The Book of Fallacies: From Unfinished Papers of Jeremy Bentham (Hunt, 1824, Nabu Reprint, circa 2010) at Ch. III, Fallacy of Distrust, or, What’s at the bottom?,  p. 154.  Hereafter the book will be cited as Political Fallacies at __. Nabu reprints are basically photocopies of the original, so page citations necessarily will be to the original.

[2] Which Executive Order? He’s issued quit a few. See Fox News, List of Trump’s Executive Orders  (March 06, 2017), available at http://www.foxnews.com/politics/2017/03/06/list-trumps-executive-orders.html  We’re talking about  the one of March 6, 2017,  Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States, available from the Whitehouse Press Office at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states  Some people say this one is about immigration; I say it’s short term, and about travel.

[3] See Political Fallacies at p. 359.

[4] See, e.g., University of Texas at El Paso, Williamson et al., Univ. 1301, Master List of Logical Fallacies (updated 3/17/2017), available at http://utminers.utep.edu/omwilliamson/engl1311/fallacies.htm  This list is online and in numbered paragraphs. It’s also clearly a work in progress. We’ll cite it as Master List at ¶ __.

[5] See Berger & Luckman, The Social Construction of Reality, A Treatise on the Sociology of Knowledge (1966, Anchor Books 1967). Many think of this as a classic in its field.

[6] This is a paraphrase of a comment attributed to Hugo Black, a 20th Century Supreme Court Justice. He said, roughly, that most people think the Constitution permits what they want to permit and forbids what they want to forbid. The quote is hard to authenticate, but we succeeded a few years ago. Unfortunately I can’t find the research on that. We’ve been writing these things for 7 years, don’t you know? I’ll get back to you, dear reader, when the research turns up.

[7] We use the National Archives as our source for the wording of the Constitution, its Amendments, etc. It’s accurate and free. You can find the 1st Amendment there, at https://www.archives.gov/founding-docs/bill-of-rights-transcript  The full quote is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

[8] See Master List at ¶ 52.

[9] See Political Fallacies at p. 359, 360: “Upon the whole, the following are … in common to all the several arguments here distinguished by the name of fallacies: (1) Whatsoever be the measure at hand, they are, with relation to it, irrelevant … (7) on the part of those who … give utterance to them, they are indicative either of improbity or intellectual weakness, or of a contempt for the understanding of those on whose minds they are destined to operate.”

[10] See Political Fallacies at Part the Second, Fallacies of Danger, Chapter I, p. 127 – 142.

[11] Id. at 128 – 129. “The argument in its various shapes amounts to this: – In bringing forward or supporting the measure in question, the person in question entertains a bad design; therefore the measure is bad: – he is a person of bad character; therefore the measure is bad: – he is actuated by a bad motive; therefore the measure is bad: – he has fallen into inconsistencies … ; therefore the measure is bad; – he is on a footing of intimacy with this or that person, who is a man of dangerous principles and designs … therefore the measure is bad: – he bears a name [i.e., a religion] that of a former period was borne by a set of men now no more, by whom bad principles were entertained, or bad things done; therefore the measure is bad.”

[12] See also Master List at ¶ 17.

[13] See also Master List at ¶ 74.

[14] See Political Fallacies at Part the Second, Fallacies of Danger, Chapter III, p. 157: “If on this ground it be right that the measure be rejected, so ought every other measure that ever has been or can be proposed: for of no measure can anyone be sure, but that it may be followed by some other measure or measures, of which, when they make their appearance, it may be said that they are bad.”

[15] See Master List at ¶ 109. The other hypothetical given also is good: “If you two go and drink coffee together one thing will lead to another and next thing you know you’ll be pregnant and end up spending your life on welfare living in the Projects.”

[16] This is my translation. If you don’t like it, pick another. They all say about the same thing.

[17] See Master List at ¶ 94.

[18] Id.

[19] There were lots of riots when Trump was elected. See, e.g.,  USA Today, Eversley, et al., Thousands across the USA protest Trump victory (Nov. 12, 2016), available at http://www.usatoday.com/story/news/2016/11/09/anti-trump-protests-erupt-new-york-chicago/93570584/ . Lots of people think these and other riots were staged, not spontaneous.

[20] See Fox News, Friling, Israeli-American arrested in US Jewish community center bomb threats (March 23, 2017), available at http://www.foxnews.com/world/2017/03/23/israeli-man-arrested-in-us-jewish-community-center-bomb-threats.html

[21] See Master List at ¶ 78.

[22] See Political Fallacies at p. 359.

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