The Euro 2004 soccer tournament is about to kick off in Portugal, and once again, controlling fan violence is a major undertaking. The England-France match set for Sunday is one venue that has the Portugese authorities particularly concerned. Drunken England fans have caused more than their share of havoc in the past. But the Portugese police have a new weapon in their arsenal: they intend to look the other way at the public consumption of....marijuana. It's a harm reduction measure: toked-up fans do not present the same sorts of public order problems as do drunk fans, and police resources have higher uses than bothering fans who are smoking a joint but not harming anyone else. Incidentally, Portugal is so depraved (like Italy, Spain, and the Netherlands) that it doesn't throw people in prison when they are walking around with a little bit of a drug (including heroin or cocaine) on them for their own personal consumption. Barbarians. [Disclaimer: I could be wrong! Do not rely upon this information or misinformation!] But public consumption of marijuana is not decriminalized in Portugal, though for Euro 2004, it appears that it will be tolerated. Thanks to Last One Speaks for the pointer.

I just posted a version of this at Vice Squad, and thought that I would double dip, now that the Supreme Court has smiled upon such activity...

In The Theory of Moral Sentiments, Adam Smith notes:

That the innocent, though they may have some connexion or dependency upon the guilty (which, perhaps, they themselves cannot help), should not, upon that account, suffer or be punished for the guilty, is one of the plainest and most obvious rules of justice

Victimless crimes tend to breed such unjust laws precisely because there is no obvious standard for the appropriate amount of punishment that should accompany a victimless crime. (For a good discussion of this theme, see Roger Pilon's "Can American Asset Forfeiture Law Be Justified?," 39 N.Y.L. Sch. L. Rev. 311, 1994.) The extent of moral fervor, then, becomes a major determinant of punishment -- and hence the extent of criminalization as well as the punishment for victimless crimes varies significantly over time, as the moral fervor shifts. Why does the moral fervor shift? Because the activities are themselves morally ambiguous, combining elements of pleasure and wickedness. (On this theme, see Jerome Skolnick's "The Social Transformation of Vice," Law and Contemporary Problems 51 (1): 9-29, 1988.)

My prior post, in which I argued that Torquemada-gate was not necessarily atypical of American moral miscues in time of war, has generated some thoughtful dissent. Both Professors Froomkin and Muller have articulated what it is in their minds that distingushes the present situation from events past. (Professor Balkin also has a post which, I think, is similar to Muller's in its assumptions and viewpoint.) Their responses resonate with me, but that is little surprise given that I share their general views concerning the immorality of torture. Nonetheless, I am not fully persuaded, and I have attempted to articulate the reasons why in an "Update" appended to my original post.

Kevin Drum has also penned a reconsideration of the matter that is worth reading. In it, I think that Drum puts his finger on the issue that ultimately separates myself from him, Froomkin, and Muller:

CC specifically suggests that torture might not be quite as universally condemned as I think, and sadly, there's some evidence to back that up.

Other polling has produced similar results. And it's not always clear that moral qualms lie behind the opposition to torture. Some seem to suggest that refraining from physical coercion is merely a matter of pragmatism:

But Mr. Biden persisted, saying: "There's a reason why we sign these treaties: to protect my son in the military. That's why we have these treaties, so when Americans are captured they are not tortured. That's the reason in case anybody forgets it."

There is no shortage of folks who are willing to publicly condone, discount, or excuse the events at Abu Ghraib. And, as I previously noted, there are even those within the legal community, such as Professor Dershowitz, who would contemplate legalizing torture under certain circumstances. Whatever moral consensus we share concerning the ineffability of torture may well be frayed or outright illusory. The events at Abu Ghraib and the administration's conduct may be a reflection of this reality rather than a betrayal of well-settled values.

The great food writer Calvin Trillin once recounted how his wife figured the home finances. Any money saved incidentally, such as by flying on a discount airline, would get allocated mentally into a sort of surplus fund to be spent on frivolous luxuries. Taking her advice fully to heart, the intrepid Mr. Trillin subsequently bedazzled an elderly seat mate on a flight by spending the entire time stuffing himself with an unremitting parade of delicacies – caviar, devilled quail's eggs, an expensive bottle of wine stowed surreptitiously in the front pouch. When I learned that the law firm I’m working for was paying my way to New York, I decided to take a page out of a superior’s book, literally. And because I was unlikely to have a seat mate in the head carriage of a Sunday morning train from Boston to Penn Station, I brought along the memoirs of the long suffering New York Times food writer, Craig Clairborne, to mull away the time as I ate my way from school to work, from unpaid frivolity to at least a brief sojourn in the heady world of paid responsibility.

I settled down in the surprisingly comfortable chair, and rooted around in my backpack for what I had planned on as my first course, a bowl of varied olives, freshly marinated in the purest extra virgin olive oil. There’s something uniquely exquisite, perhaps decadent, about popping a tiny nicoise in your mouth one moment, and nibbling away at its giant green cousin the next, rolling the delicious fruit delicately around in your mouth to get the very last morsels in mock terror at the waste of letting one get away insufficiently subdued. And so, chewing thoughtfully, I read with increasing interest of the casual racism of the early twentieth century in Clairborne’s home state, of his sexual abuse at the hands of his father, and how those things combined to drive a deeply confused young man away first from his home, and then into the welcoming arms of both Europe and of civilized gluttony.

By the time Clairborne had reached Switzlerland, and a two year stint at one of the grandest of the old culinary academies, I was busily hewing a saucisson sec, and laying it thickly on a formidable approximation of Lionel Poilaine’s hearty Parisian sourdough bread, all spread generously with a local butter I had only found recently. The deep marble of the pork sausage, soothed by the dulcifying effect of sweet butter, only brought further to life for me Clairborne’s tales of his first Alsation choucroute garni, that sauerkraut and meat specialty of German France. I have had choucroute only once, in its full form, with sausages and trotters in ample teutonic rather than French supply, and I can testify that the memory is indelible – not only for the taste, which was admittedly striking, but for the nearly incapacitory effort at digestion that followed. I can well understand why Clairborne chose to write years later about his first night with that particular culinary suitor.

I chewed mercilessly on the last slice of suacisson, and impatiently unwrapped the tiny crottin de chavingol that I thought would make a good third course. I have to admit to loving the crottin – one of the best goat cheeses, I think, both when young and only semi-hard, and when much older, yellowed, both stronger and saltier. I lay the cheese, cut into large crumbly pieces, on the remaining bits of bread, and turned the book’s page to find a delightful profile of an early French culinary transfer to America, Conrad Tuor. Even in the 1950’s, Tuor understood something America still hasn’t absorbed –as he chastised an overeager Clairborne, “Nothing is more vulgar than an excess of food on a plate”. And yet in restaurants today, we’re still left to stare in embarrassment at enough food for four but served for one. That’s not value for money, I think Tuor and Clairborne would agree, but actually a mockery of value - a symbol of the form rather than the spirit of generosity. Is it any wonder, then, that in shunning Tuor we’ve mired ourselves in a burgeoning wave of obesity?

Justly indignant, I clumsily tore open the paper around the chocolate mousse cake that was to serve as my dessert, only to find that it had inconveniently melted. No matter, I thought, poking around in my bag for a spoon – good chocolate is good chocolate (Burdick’s in Cambridge certainly fits the bill), and Clairborne had turned to a topic close to my heart and far from my hands. How, he had been asked a thousand times, does one become a real food writer. Ah! The cold reality that I know lurks in the background of every sentence I write was rather harsher than the creamy, rich, dessert – Clairborne’s recipe involved a stint at cooking school, time in a restaurant, the imprinting fire of real professional experienced. After checking around me, I licked what was left of the cake off its waxy smooth paper, and wiped my mouth clean – there’s something to be said for the dedicated amateur, I thought. I remember a chess book of which I was very fond when younger – I think it was called “Master versus Amateur”, or some such paragon of description – in which occasionally the weaker of the two players was able to win games when he could entrap his great opponent in an obscure opening, a distant cul-de-sac of chess theory. He stood no chance in the open field of play, of course, but the paradigmatic amateur of the book’s pages lived for his rare chance at glory in some little known corner of the French defense, or perhaps awaited his prey in the tangled thickets of the Sicilian. And that, I thought as I finished off my lunch and saw the less than dreaming spires of New York curl before me, would be good enough – I need not contend with the professional chef turned writer, for he is a very fine thing – but in the alleys of culinary specialty, in my beloved Provencal daubes and soups and a few other sundry bits of competence, I can have my day. In any case, that will simply have to do.

...I figure I'll strike a match and see what happens. Can we please, please have a moratorium on the word 'homophobic?' Or at least its misuse.

I think I'm paraphrasing Robin Williams (though my memory is admittedly poor on the point, so don't go blaming dear Robin) when I say that homophobia is, after all, a very strange word. It would seem to mean having the fear of the same thing all over again. That, or a particularly virulent terror of conformity. But let's concede to those modernists who would insist that usage should conquer etymology and say it should mean fear of homosexuals.

The trouble is that very, very rarely is the word used to mean 'fear' of anything at all: unlike any other phobia, 'homophobia' is meant to describe a dislike, generally a hatred, of something. After all, ornithopobics don't go out shotgunning birds, ophidiophobics don't strangle snakes, and whilst arachnophobes do sometimes kill spiders, those I've known have been very reluctant to do so. I myself might be considered slightly haemophobic, but that means I experience an irrational nausea at the sight of blood, and might faint in extreme circumstances. Still, there's no malice to speak of there. Nor does the term 'homophobic' generally refer to someone who runs screaming from the room at the site of Will and Grace--that's merely someone with decent taste in sit-coms. [1]

But again, let's assume that those with more linguistic knowledge than I will counter that usage has given the word a solid meaning distinct from any other brand of phobia, that 'homophobia' is merely an exception to the general rule of phobia. Were it used merely to describe those who had an extreme and irrational hatred of homosexuals, I'd have no objection. But it's become a label used to describe those of a particular political or religious cast without necessary reference to an emotional state.

Take the comment on this entry at Lawdork, where such topics are often discussed:

Understandably I guess gay Republicans are having to use blinders and revisionism to protect themselves from the truth that the GOP leadership, including the guy at the top, has always been willing to align itself passively and actively with homophobic Christian fundamentalists. If I were conservative I suspect I'd be a Libertarian.

Now, the differing belief systems of the world, from the strictest form of Islam to the most ardent atheism, disagree upon this point, and I'm not going to waste time arguing one side or the other as to which is right or wrong. Rather, I'd like to point out that those same belief systems that disapprove of homosexuality also disapprove of other things of which your typical secularist is likely quite happy to tolerate. And yet for all the prohibitions upon alcohol throughout the world, these persecutors of the grape are not considered "oenophobics," "Bacchophobics," or even "alcophobics." Those Catholics who hold to traditional teachings with regards to divorce--even those who wish to reverse our no-fault divorce laws--are not considered "separatophobes," "divorceophobes" or at an extreme stretch, "antiphilophobes." And anticipating the objection that these are merely issues in which passions do not normally run so high--a position I'd contend, but let's assume arguendo--no one can deny the passion of the antiabortion lobby. And yet they're not described in the popular press (nor anywhere I can find except for one lonely letter to the editor) as fetophiles or abortophobes. Sometimes misogynists--though this must be confusing for the women in the movement--but at least that's got the right Greek in it.

Some might think that I'm making a trivial point here, but I do have my reasons. At least as it has come to be used, 'homophobia' has become a method of avoiding debate. If the term were used exclusively for those who advocated the use of extra-legal violence, then even though it were linguistically exceptional, it might be logically acceptable. But to speak of 'homophobic religious teaching', or a 'homophobia scale' that measures ones political positions on gay marriage and the legality of sodomy (to take two of the top Google hits) is merely to say that there is no rational, ethical, or religious argument that can be made in favor of these positions. Again, not merely that one disagrees with them, but that they are absolutely unsupportable and beyond the bounds of reason, a stance that is at once both dismissive and massively overconfident. (It's also intolerant, although an intolerance for religion seems somewhat in vogue these days, so long as one isn't too naked about it.) Further, it implies that one's opponents are not only irrational, but cowards to boot: that despite any protestations of religious fervour, ethical compunction, or logical necessity that might be made, these are merely a thin patina for some deeply held fear.

In any event, I'm tired of the word and its use as a pejorative. We're not talking about phobics, we're not talking about violence, we've merely made a politically acceptable insult for those who hold differing beliefs. Its usage should either be scaled back, or consigned to the dustbin.

[1]: Speaking of gay sitcoms, someone please tell me that the American version of Queer as Folk showing on Showtime didn't do as much damage to the original as the transatlantic conversion did to Coupling, Men Behaving Badly, and Cracker.

UPDATE: Since Will doesn't allow posts, you're welcome to use my space here.

Wherein what was once a blog about politics and law is rapidly becoming a blog about literature (and food. (and etiquette.))

I noticed yesterday that Anthony Rickey at Three Years of Hell is currently reading Arturo Perez-Reverte's Dumas Club. Josh Chafetz also recommended it some time back (before I had figured out how to spell his name). I read it many years ago, but it remains one of my favorite casual books, and it contains two of my favorite literary characters of all time. (Other top choices being Van Veen, William of Baskerville, Dirk Gently . . .)

Pejman Yousefzadeh is also a fan of several of Reverte's works-- The Fencing Master is another top choice. Opinions (including mine) are split on The Nautical Chart. I liked the Seville Communion, despite its focus on religion, and was a little bored (but still pleased) by the Flanders Panel, despite its focus on chess.

But, while picking up my graduation tickets today, I was pleased to discover that Reverte has a sixth novel in English. (For those whose Spanish is better than mine, he has plenty more in his native tongue.) I haven't read it yet, but I suspect I'll have it done by the time my plane lands in D.C. on Sunday night.

Incidentally, for the insatiable I have a small collection of Reverte quotes here (some are translated, a little shakily, by me).

Eugene Volokh posts about a rather broad (and, he tells us, unconstitutional) speech code. It has many of the usual things one expects from such things, but as a result of my past weeks spent listening to Ted Cohen, this prohibition caught my eye:

Examples of Inappropriate Behavior: . . . * Jokes that have the purpose or effect of stereotyping, demeaning or making fun of any protected group. An example might be jokes about persons with AIDS or an ethnic joke. . . .

As I understand it to stereotype something is to encourage others to use a simplified and mistaken image of that thing. So, the argument goes, when one asks "How do you stop a Polish tank?" [Answer: Shoot the guy who's pushing it], the complaint is that this joke stereotypes because it encourages others to think of Poles as stupid or ineffectual.

Now at this point in the discussion, Ted Cohen always asks, "Why is that bad?" His audience will gamely reply, "because Poles aren't particularly stupid or ineffectual, and even if they were, certainly not all Poles are stupid or ineffectual, and there's definitely no such thing as a Polish tank that has to be pushed."

Well, right. But one's objection to the joke has to be stronger than the objection that it isn't true. If that were the problem, then all jokes would be verboten. Is the problem that the joke "relies on" the stereotype? Hardly. The joke can be just as funny (or unfunny) to those who, like me, think that Polishness and intelligence are probably uncorrelated and those who for some reason think that they are.

All that is important to being able to "get" this joke is that one understand that in the false fictional world where Polish tanks are pushed by people, that Poles are kind of clueless in that world. But objecting to this fictional world because it "stereotypes" seems mistaken-- as mistaken as complaining that some fictional world contains witchcraft and young kids riding around on brooms when they play sports.

This isn't to say that jokes can't be offensive. The offensiveness of jokes is a much bigger can of worms that I don't have concrete thoughts on at the moment. But even if jokes can be offensive, the problem doesn't seem to be that they "stereotype" people. That doesn't happen unless the person hearing the joke mistakenly believes it to be a true story, in which case we have pretty serious communication failures.