The Bill of Rights in the U S enables its Supreme Court effectively to make laws on sensitive political issues. One example is the First Amendment. It prohibits the making of laws that abridge freedom of speech. In previous and purer times, the Justices had a lot of trouble squaring this protection with prohibitions on obscenity. Surely people should not be heard to say ‘fuck’ and get away with it. The Court developed a doctrine – in truth they made a law – that said that obscenity was ‘conduct’, not ‘speech.’
The issue came to a head in 1971 in a case about the Vietnam War and the draft in Cohen v California. Mr Cohen got thirty days in jail for wearing a jacket that said ‘Fuck the draft.’ Under existing doctrine, the slogan was unprotected ‘conduct’ rather than protected ‘speech’. The majority disagreed and set aside the conviction – and the jail sentence. The minority was unrepentant, but they muddied the water in retreat. They said that Mr Cohen’s ‘absurd and immature antic … was mainly conduct and little speech.’ Well, their Honours were not going to let the uppity Mr Cohen go unsmacked, but had that last proposition been put in argument, might not the response have been: in what way is being a little speech different to being a little pregnant?
But was not the whole argument premised on a fallacy? Is it not a premise of the argument that there is an essential distinction between ‘conduct’ and ‘speech’ – perhaps what Fowler refers to as the ‘essential duality’? The argument must be that if what we do is classified as ‘conduct’, it cannot be classified as ‘speech’. But that is not the case. The word conduct here means ‘things we do’, and one of the things we do is to speak. (The Oxford English Dictionary is opaque: ‘Manner of conducting oneself; behaviour.’ For the verb, we get ‘to comport or behave oneself (in a specified way)’). If I say ‘To hell with all politicians’ or ‘Fuck the draft,’ I am engaging in that form of conduct that we call speaking, or speech. The former includes the latter; there is no necessary distinction between the two terms; and the whole basis of the argument falls to the ground. The fallacy might be called the ‘either/or’ fallacy, or perhaps, ‘the false dichotomy fallacy’.
Another example of this fallacy can be seen in an AFR piece by John Roskam of the IPA about the movie Darkest Hour. Mr Roskam says that the movie makes the point that people make history, and that our universities are wrong to preach – as he believes they do – otherwise.
In tertiary institutions individuals have been replaced by ideologies. The most common themes in those 746 subjects [undergraduate history subjects taught at Australian universities] are, in order, indigenous issues, race, gender, the environment and identity…..
The ideology of identity politics and the categorisation of people into pigeon holes according to personal characteristics that they had little or no role in choosing is that there’s no room for choices.
Now, for better or worse, it’s more than fifty years since I studied or taught history at an Australian university, but over the last fifteen years I have spent a lot of time in summer schools at Cambridge and Oxford studying history. The tutors there are not interested in windy ideological suspirations. But if an issue like this comes up, as it did in a course on Cromwell at Cambridge conducted by Dr David Smith, then the obvious answer is that people make history – and not vice versa. I don’t know if there is a different current in our universities but then again, there is a lot that I don’t know about bogeymen of the IPA.
But the fallacy again is that there is no necessary distinction or exclusivity between what might be called the individualistic and the determinist views of history. It is sufficient to recall the insight of Carlyle – history, our story, is a collection of biographies. It’s about what people have done – their conduct, including what they said. When Mr Roskam rehearses his demons – ‘indigenous issues, race, gender, the environment and identity’ – he is referring to labels applied by commentators like Mr Roskam to aspects or effects of what individual people have done. Most history, even what is called microhistory, inevitably entails some generalization and labelling – and on a bad day, some graphs or tables – but that does not require us to believe that we are not talking about what people do. There is no such thing as race, gender or identity alone and palely loitering. Tolstoy obsessed about this in War and Peace, and Carlyle got onto trouble over allegations of hero worship, but for most of us, the issue just doesn’t arise
Of course, the conduct of Churchill had more effect on the outcome of World War II than the man who swept the floor of the Cabinet War Rooms. Of course, Napoleon had more say about the impact of the French Revolution than the sans-culotte who got his first taste of blood on 14 July 1789. But no one could write a history of those events by talking alone about named individuals. Lenin was instrumental in the arrival of Communism in Russia; Gorbachev was instrumental in its departure. But it is impossible to describe either story without feeling and speaking of the elemental forces that moved across all the Russias during those times.
Great lakes of watery ink have been let go on these themes. If you ignore large issues like causation, you are exposed to the taunt of Voltaire: ‘If you have nothing to tell us except that one barbarian succeeded another on the banks of the Oxus and Jaxartes, what is that to us?’ But if you get carried away on the airstream of causation, you forget ‘man’s mysterious powers of breaking the laws of his own being.’ (Someone referred to the tragedy of all social sciences as that of ‘a syllogism broken by a fact.’ Against that, someone else said that ‘unpredictability is the privilege of the insane.’) Karl Marx said: ‘History does nothing, it possesses no immense wealth, fights no battles. It is rather man, real living man, who does everything – who possesses and fights.’ History is all about individuals, but their doings are commonly described in very large groups.
In What is History?, E H Carr put one aspect of our discussion this way:
The logical dilemma about free will and determinism does not arise in real life. It is not that some human actions are free and others determined. The fact is that all human actions are both free and determined, according to the point of view from which one considers them…..Cause and moral responsibility are different categories. An Institute and Chair of Criminology have recently been established in this university. It would not, I feel sure, occur to any of those investigating the causes of crime to suppose that this committed them to a denial of the moral responsibility of the criminal.
That looks plain common sense to me – except that if it is thought that there is some logical distinction between ‘real life’ and ‘history’, then I would reject it as groundless.
If you are asked to tell the story of what we have done, how much weight you give to the individual – hero or villain – and how much you give to the rest – Mr Roskam would not be keen on the ‘masses’ – are matters of degree and possibly taste. But to suggest that there is a necessary logical distinction is, I’m afraid, just bullshit.
The either/or fallacy occurs when someone says you have to choose between A or B, and that they are inconsistent – when that is not the case. It is related to the fallacy of the false dilemma. A dilemma is false if it says that there are only two choices when in truth there are more. What you generally get is that if you do not do A, you will have to go with B, which will be truly awful. The truth is that there are other possibilities, but you face an attempt to induce you to believe that you have no real choice.