are you now or have you ever...

Friday, October 26, 2018

Conlawprof and the Caravan

Professor AAA wrote: “So 6000 unarmed poor people who might get here by Christmas if they walk fast requires us to talk about assigning 800 members of the military to the border to do what exactly[?]” The ability of our officials to process arguably legitimate asylum claims depends, in part, on the human and physical resources at their disposal, but it also depends on the willingness of those crossing the frontier to present themselves to our officials for processing. Border control officials cannot process arguably legitimate asylum claims if would-be asylum seekers cross our borders, and knowingly and surreptitiously circumvent inspection and identification, and purposefully refuse to file for asylum. So one thing U.S. troops at the border might do…is to present a credible threat incentivizing law-abiding behaviour. Go figure: it is not so mysterious. This is the norm, if not at most borders in the world, at least at many. Believing otherwise is tantamount to some religious adventure in American exceptionalism.

Professor AAA suggested that the “caravan” (I use this term for want of a better one) “might get here by Christmas.” (I assume he meant “by Christmas or some time thereafter,” as opposed to “no later than Christmas.”) I applaud his making a falsifiable claim. I do not imagine this claim will age particularly well—but we will see.

Finally, Professor AAA wrote: “Sounds like we might need more people to process their asylum claims and offer them some food and water.” What precisely does Professor AAA mean by “need”? Did he mean, these people are a credible threat, particularly if desperately poor and travelling with children who are suffering and vulnerable? Did he mean that a spouse might be moved to engage in violent crime in order to “protect” a pregnant wife in urgent need? In other words, “need” is a code word. We “need” to help them because otherwise they are a “threat”?

Or, alternatively, as I expect he meant, what Professor AAA meant by “need” is that we “need” to help them because they are poor and vulnerable. But if that is what he meant…won’t he please share what precisely he has done to date acting on this profound moral intuition? Surely if he really believes the force of this moral intuition, he can point to some meaningfully significant action or contribution (beyond paying lawful taxes) that illustrates his sincerity—i.e., that he really believes what he has written—i.e., that he really believes that we (including himself) need to affirmatively aid those in the caravan. If not, is not the obvious conclusion that he does not really believe the moral claim he is making, and although he does not believe it, he seeks to convince the rest of us to act upon it via his post here. Surely, it cannot be right that the only duties the “needy” caravan members impose on Professor AAA and on the rest of us are to write posts on Conlawprof and to vote for the politically correct party?

Furthermore, has Professor AAA considered if his moral claim is robust? Surely there are a great many people in the world—some in our nation—and some at home in the nations of origin of the caravan itself—who are more poor and more vulnerable than the people in the caravan. The people in the caravan are relatively young and relatively healthy. For those of us unwilling to see the moral force of the claim that we must give up all that we hold dear to those in greater need, we must choose or select the objects of our bounty in some fashion other than the not-so-happy “accident” of television presenting newcomers to our immediate view. If our means are limited, as mine are, these newcomers have no particular or strong claim on us based on “need,” as in their need, to the extent that we can identify many others in greater need who we are willing to share our bounty with.

So I write it yet again. I don’t really believe Professor AAA believes what he has written. In my opinion, his position is a cultural artefact…an expression of virtue signalling to an audience who appreciates such views. But in my opinion, the reality is the speaker does not mean what he wrote, does not act on his own advice (at least, he has not indicated otherwise), and does not actually expect his immediate audience to act on his advice. This sort of thinking may very well be the norm in academia, including legal academia. And if true, contra Professor BBB, it is a very good thing that law professors don’t fully engage with our students about the right, the just, and the good. In regard to these permanent things, we have no greater insight than the rider on the Clapham omnibus.


See Patrick Devlin, The Enforcement of Morals (Oxford University Press 1965) 15,; see also Enoch Powell, Wrestling with the Angel (Sheldon Press 1977) vii, 30, 46 (quoting interview with Bryan Magee on London Weekend Television).  

Seth Barrett Tillman, Conlawprof and the Caravan, New Reform Club (Oct. 26, 2018, 1:53 AM),

No comments: