Dàodéjīng 1: yet another interpretation

I’m not sure why I think the world needs another English version of this verse, but here it is. My aim has been to be as word-for-word as possible while retaining the allusive imagery. In a few places (‘womb’, ‘shadow’) I sacrificed literalness to retain an associative web. I’m not entirely happy with ‘subtlety’ for miao (妙), but dislike the alternatives more.

The way that can be walked is not the lasting way.

The name that can be named is not the lasting name.

Without name, heaven and earth’s womb.

With name, the swarm of creatures’ mother.

So abide without desire to see her subtlety, abide with desire to see her boundaries.

These two are born together, yet differently named.

Together, call them the shadow of a shadow’s shadow, crowded subtleties’ door.

Freedom

Freedom

What kind of freedom for people with intellectual and psychosocial disabilities can we reach with laws, professionals, plans, monitoring, and all the weight of the modern state?

Can we reach any freedom that counts?

One time, a few years ago, I had a really good day rock climbing with friends in the Dinorwic slate quarries.

I was on a climb that isn’t too hard, but that has a tricky little sequence of moves maybe thirty foot up. There’s a little ledge just before this sequence, and I was stood on that, trying to work out how to get through the difficult bit, when it started to rain. Wet slate is as smooth as glass and about as much fun to climb on, so I had to either to either bail out completely or do the rest of the climb straight away.

Something odd happened. I stopped thinking about the tricky sequence, and just started doing it. And then I kept on doing it. Climbing quickly, fluidly, and thoughtlessly up the whole rest of the climb. Climbing, basically, like someone a whole lot better at climbing than I am.

The rain was the trigger, but I mostly climb in the UK. I’ve been rained on hundreds of times, and the normal effect is just that my climbing gets even worse. I don’t really know what happened that one day, but I do know what it felt like. It felt effortless. I remember, at the time, watching myself climb and enjoying the sensation of watching myself climb. It didn’t feel like I was doing anything at all.

Now, let’s get down to how lawyers talk about people with mental disabilities.

The Mental Capacity Act says that to be capable of making a decision, I have to understand and use and weigh the information relevant to that decision. On that climb, I couldn’t have articulated to myself the information relevant to the moves I was making. I didn’t understand it. I was moving too fast to even have time to understand it. Yet it was that very lack of understanding that made it feel so great and that made me objectively climb way better than I normally do.

The UN Convention on the Rights of Person’s with Disabilities is better on this, but not by much. Instead of ‘understanding’, it tends to crunch decisions into ‘will and preferences’. I was pulling myself upwards, so presumably I ‘willed’ to get to the top. The trouble is, though, that description misses everything that was so special about the day. I wouldn’t have cared massively if I’d had to lower off the climb. I’m a mediocre climber and I’m fine with that. I didn’t have the psychological experience of ‘willing’ or even ‘preferring’ to climb. What made the climb so great was that the little voice in my head that would normally be saying things like ‘go for the little notch just to the right’, ‘shift your weight on to your left foot’, and so on actually shut up. That isn’t ‘preferring’ something. That is being free from the continual, grinding demand of preferring things.

What I am saying is that the law flattens and distorts human psychology, and that these seemingly innocent simplifications made so that lawyers can feed the empty but perpetually hungry God of ‘legal certainty’ will always have real human costs.

Freedom under the Mental Capacity Act is freedom to act on your own understanding. If you are in the large class of people with a disability whose capability for understanding is always under suspicion, then it is not the freedom to have understanding fall away and pure thoughtless action take over. As for letting understanding ‘fall away’ half way up a quarry face in the rain, well you can forget that.

Freedom under the UN Convention is freedom to determine your own will and preferences. That is not the freedom to let the endless, tedious, self-monitoring, chatty, bureaucratic modern self just shut the hell up and go and do one. If you are in the large class of people with a disability who will be suspected of ‘needing support’, then not having preferences is likely to result in some well meaning professional busybody ‘interpreting’ your non-existent preferences for you. At least the General Comment would let you tell them to get lost, but even having to do that drags you back into the world of expressing preferences to someone with implicit power over you, the power to ‘interpret’ you.

The Act’s freedom and the Convention’s freedom are, in themselves, fine. It’s when they fall into the hands of the law that they get dangerous. Then, all those little moments that don’t fit the pattern, like that day I climbed well, get pushed to the side by a bureaucratic machine bent on compliance; and then every act of empowerment carries in it the seeds of domination.

I don’t dance because I understand the ‘information relevant’ to dancing. I don’t dance because I ‘will’ to dance. I dance when the music gets a hold of me and makes me dance. Freedom is letting it.

Choosing a place to stand when criticising mental capacity

At the moment, usually in the context of discussions about Article 12 of the UN Convention of the Rights of Persons with Disabilities, the very idea of mental capacity is coming under attack. That’s good. If the concept can’t take a good battering, then it doesn’t deserve to.

To stretch the ‘battering’ metaphor a bit further though, some of the attacks look more like someone wildly windmilling their arms in the rough direction of a target than like Jet Li taking down the White Lotus Society. I think a lot of it comes down to a failure to unequivocally take a side when criticising the concept. This happens at least three ways.

First, sometimes people think an argument that everyone is irrational adds strength to the UNCRPD inspired idea that everyone, no matter what their disability, is able to make their own decisions (sometimes, Kahneman’s ‘Thinking, Fast and Slow’ is mentioned in this regard, but see Retraction Watch). This is silly. Arguing that everyone is irrational obviously doesn’t support a claim that some people are more rational than we have been treating them. Rather than defending the claim of people with disabilities are able to make their own decisions, claiming humans are irrational undercuts everyone’s claim to be able to make their own decision.

In other words, the concept of capacity can be attacked from either extreme: either because everyone (or maybe just more people than we admit) is rational, or because everyone is irrational. It can’t be attacked from both sides by the same person, though, if that person wants to be taken seriously. If you say to me, ‘that car is mine because I bought it’ or if you say ‘it’s OK that I stole that car because all property is theft anyway’, then we can talk about that. If you say to me, ‘that car is mine because I bought it, and anyway it’s OK that I stole it because all property is theft’, I’m going to think that you’re a self-serving liar.

Worse than this, arguing that no-one is really rational is a claim that eats itself. If no-one is rational, then reform, and the law, and argument, and arguing that people are irrational are all just so many pointless dead words. To speak to another person is to assume that they are responsive to reasons.

This phrase, ‘responsive to reasons’ brings up the second ambiguity. There are, broadly, two common ways of talking about reason and rationality. Let’s call them the maximalist and minimalist versions. On the maximalist version, ‘reason’ means something like the ability to weigh up all the factors at play in a situation, including your own desires, and reach a balanced, logical, coherent conclusion. Tall order. On the minimalist version, being reasonable just means you that are responsive to reasons. It means that you are not an inanimate object, like a brick falling under the force of gravity. You can, for example, see an uncontrolled fire and decide to run away.

Critics of the very idea of mental capacity sometimes assume that the concept is based on a maximalist idea of reason; and then, understandably, doubt whether anyone can live up to that. This is a straw man. All the Mental Capacity Act 2005, for example, requires is that someone can understand, retain, and use and weigh the ‘information relevant’ to a decision. It doesn’t say all the information, or completely understand the information relevant, or that any decision must be logical and considered; and judges talk a lot more about the dangers of setting the bar for capacity too high than the dangers of setting it too low. To me, this looks a lot like a minimalist account of reason. You are reasonable if you are responsive to the reasons that are relevant in that situation (that raises the question of who gets to be the final judge of what is relevant, but that’s not about the concept of capacity, it’s about who gets to judge it).

Once again, it’s about taking a side on an issue. Being ambiguous between minimalist and maximalist accounts helps no-one. The thrust of the disability rights claim is that people with disabilities are responsive to reasons, but the law treats them as though they are not. For that blow to hit, though, it has to be against the law as it is, not against some maximalist rationality that goes beyond the law.

There is a third ambiguity tangled in these two. The ambiguity between making a decision and being able to make a decision. On occasion, it is pointed out that everyone does act irrationally sometimes. This adds nothing to the debate. Incapacity is an inability to understand and ‘use and weigh’ and so on, not a failure to do so. Failing to understand does not, by itself, mean that you lack mental capacity. Similarly, calls for reform are not based on the idea that people with disabilities always will understand and ‘use and weigh’ information. They are based on the idea that they can do those things.

Once again, there is a need to choose a place to stand. You can, of course, say that in practice the distinction between understanding and being able to understand is ignored. It’s an important point to make, but then they’re using the concept of mental capacity to criticise practice. You’re no longer criticising the concept. Or you can argue that in practice the distinction is going to cause a total mess because it will be hard to tell failing to understand from being unable to understand. I did that myself. Then, though you’re not really attacking the concept of capacity. You’re just questioning how useful it is.

So, to wrap up, there are three ambiguities: between the claims everyone is rational or everyone is irrational, between minimalist and maximalist rationality, and between making a decision and being able to make a decision. So far as I can see, the only place to stand if you both want to argue for disability rights and to hit the concept of mental capacity is for rationality, for minimalist rationality, and for capability over actuality. In other words, for the claim that people are capable of minimalist rationality. To argue from universal irrationality is absurd and self-defeating. To argue against maximalist rationality, or that everyone sometimes fails to understand or ‘use and weigh’, is to miss the concept of mental capacity entirely.

On a related note, it’s common for advocates of strong interpretations of Article 12 of the UNCRPD to tell stories in which claims for universal personhood are new. This is a historical nonsense, and as a rhetorical move, I don’t think it’s a good idea. Kant thought all human beings were capable of autonomy ‘from conception’, and Augustine clearly considered those with intellectual disabilities to be full persons. What is new is the claim that personhood entails being able to make every relevant decision yourself. I don’t think that the new claim, that personhood entails complete control over decision-making, has yet been adequately defended. For now, though, I just want to draw attention to the rhetorical move of unnecessarily claiming newness for universal personhood. Rather than stress conflict with what went before, why not emphasise continuities with the Christian and Enlightenment traditions? After all, does a wise martial artist not use their opponent’s momentum?

‘Understand’ is not an axis

And now for a return to musings on mental capacity…

The Mental Capacity Act 2005 says that you are unable to make a decision if, among other things, you don’t ‘understand’ the information relevant to the decision ‘because of an impairment of, or a disturbance in the functioning of, the mind or brain’. Lots of other jurisdictions have a similar idea.

A lot turns on this. The Act has three other ways of not being able to make a decision: if you cannot communicate what you want, retain information, or use and weigh the information. The first two are usually interpreted minimally, and the Act even requires this. Communication can be by ‘talking, using sign language or any other means’ [s3(1)(d)]; and you only have to be able to retain information ‘for a short period’ [s3(3)].

‘Using and weighing’ information, in contrast, tends to be an issue when someone talks as though they understand the information relevant to the decision; but then acts in a way incompatible with their verbal performance. For instance, if someone can explain to you, in detail, the importance of looking after their money, then walks out the door and spends everything that they have on lottery tickets, you might doubt whether they can ‘use and weigh’ that information after all. That makes ‘use and weigh’ secondary to ‘understand’ in practice.

If ‘communicate’ and ‘retain’ are minimised, and ‘use and weigh’ is secondary to ‘understand’, then a lot turns on how well we understand what we mean by ‘understand’. That worries me, because I don’t think we understand ‘understand’ much at all.

The cases, and the secondary literature, abound with seeming innocuous phrases like ‘level of understanding’. I say seemingly innocuous because, hard as they are to avoid, I think they totally misrepresent the practice of mental capacity assessments.

First, an important point that lawyers don’t take seriously enough. Mental capacity assessments weren’t invented  by the Act, it just codified common law. Beyond that, though, they weren’t created by the common law. It just basically approved what was going on anyway. The emphasis in the cases from the eighties and nineties is very clearly ‘filling’ a gap in the law, so that what doctors were doing anyway wasn’t illegal.

It goes deeper than that, though. Something like capacity assessments are just part of the human condition.

If someone is trying to do something dangerous, and you care about them or are responsible for them, then the question of whether they understand what is happening is usually morally salient. Maybe, to use Mill’s example, they don’t know the bridge is about to collapse. Maybe they’ve been smoking weed all week, are having a serious case of paranoia, and wrongly think that all their friends are conspiring against them. If you really are trying to do the right thing, then the onus is on you to try to assess what the person understands (while being humble enough to acknowledge that they might actually understand things better than you).

Lest I be misunderstood, this doesn’t necessarily justify treating people with mental disabilities differently to anyone else.

So assessing the understanding of people around us, with a view to influencing, perhaps even coercively, their behaviour is just something that crops up in a host of human situations. It didn’t suddenly appear with the law getting interested, or medicine getting interested. Back in the palaeolithic, if your cousin ate some funny mushrooms, and tried to head-butt a mammoth, the question would still arise. Maybe it would be cast in terms of spirits or gods, we don’t really know what people believed back then.  Nevertheless, they were still people, with languages of some sort, and the question of understanding would still arise.

The point of this digression all the way back to the stone age is simple. Mental capacity assessments are not created from the aether by the brilliant rationality of lawyers and doctors. They are a medico-legal bureaucratic representation of an ancient human practice. Nothing is wrong with that. Creating representations of practices helps us to understand them.

What is wrong, however, is the way that ‘understanding’ represents the practice when it appears in ‘level of understanding’ or ‘degree of understanding’. It’s a crap metaphor. It can be crap in at least two ways.

First, there’s the obviously crap way. This is when people talk as though there is a ‘level of understanding’ needed for all capacity assessments, and the process of capacity assessment creates a lasting ‘binary’ between those with capacity and those without. It simply doesn’t: mental capacity is decision specific. Just because I don’t understand the information for this decision doesn’t mean I won’t understand the information for another decision, or even the same decision tomorrow.

(In contrast, the Act does create a binary between those whose understanding can be assessed and those whose cannot: between those with and without of ‘impairment of, or a disturbance in the functioning of, the mind or brain’. Furthermore, terrible implementation of the Act might mean that capacity assessments are, at least sometimes, treated as though capacity was a once and forever deal. That is not the Act’s fault, or the concept of capacity’s.)

The second way that ‘level of understanding’ and similar metaphors are crap is less obvious. They give the picture of an axis of understanding for a particular decision, as though understanding was one of those big charity thermometers. Then, once you hit a certain level of facts understood, you’re over the line and you understand enough to have capacity.

This is sloppy, lazy drivel; and I don’t think it reflects what is actually going on in a capacity assessment at all.

Let’s say we’re trying to assess whether I have the understanding necessary to live alone in a house. Part of the assessment is likely to involve making sure I understand  everyday household risks: simple things like why I need to treat electrical sockets with due respect, or why it’s a bad idea to turn the gas hob on without lighting it. Now, these different components aren’t additive, they work in parallel. If I get the point about sockets, but just don’t understand about gas at all, then I don’t understand the everyday household risks relevant to this particular house. Even if I’m an expert in electricity, and could draw circuit diagrams of the whole house, if I don’t understand gas, I don’t understand the information relevant to the decision. Knowing lots about electricity doesn’t push me up the big imaginary charity thermometer. Understanding household risks simply isn’t one axis. It’s these two and a whole host more.

Beyond that, if what we’re really interested in is whether I understand what I need to to live alone then household risks altogether is just one collection of axes (not the chopping things, the plural of axis) among many. If, to live alone, I also need to understand how to manage some basic finances, then my excellent grasp of household risk won’t help.

It works in the opposite direction too. Understanding that I shouldn’t stick forks in the electric sockets, even really well, won’t help if I think it’s a good idea to splash water on them. Even understanding socket safety is more than one axis.

Understanding is not an axis.

We do not have ‘levels of understanding’, ‘degrees of understanding’, or ‘amounts of understanding’.

Understanding is not a charity thermometer, or a sprint to the finish line.

It would be more transparent, and honest, to talk about the ‘criteria’ of understanding. That way people can argue about whether, for instance, I really do need to be able to understand financial decisions to live alone. Talk of ‘levels’ just submerges what is happening below the murky waters of ‘what the experts say’.

 

Eric Schwitzgebel on being a knife

The story of the cook  in Chapter 3 of the Zhuangzi is one of the most famous and beautiful in the whole text. The cook has practised butchering oxen so long that he moves effortlessly and without ‘perception and understanding’. This is often read as a celebration of practical skill in opposition to theoretical knowledge.

Eric Schwitzgebel, in a brilliant short provocation, points out that it probably isn’t that simple (link).

After all, Zhuangzi celebrates ‘being useless’, and that is hard to square with cultivating high levels of practical skill. It’s a good point made well.

I would add, though, that it’s always dangerous to ascribe absolute values to Zhuangzi (even if focusing only on the ‘inner’ chapters). If the ideal of effortless skill hardens into a dogma, as it is close to doing on some Western interpretations, then that is far from the spirit of the text; but if the ideal of being useless hardens into dogma, then this is still ‘wearing out your brain trying to make things into one without realizing that they are all the same’.

Now I will wear out my own brain a little. The gap between being useless and the cook’s effortless skill is less than it seems. This, though, reinforces Schwitzgebel’s point.

What is admirable in the cook’s performance is not the quality of meat produced, or amount of steaks cut an hour. It is that it is that, for the cook, ‘perception and understanding have come to a stop’. If his exercise of skill had no practical merit at all, then that might still be true. Perhaps, too, some people lay uselessly under a big tree without perception and understanding. That would also be admirable.

The cook says that he ‘loves the way’. He does not say that he aimed for effortlessness or even that he tried to be a good butcher. He just says he did it a lot for several years. Probably, he had a family to feed and needed the work. This leads close to what I think is one of Schwitzgebel’s underlying points. Promoting effortlessness as an ideal to be attained by years of focused effort is very strange indeed.

The great thief

The legal blogs and twitter are full of concern about the threat that Trump poses to the rule of law. This is silliness.

‘If one is to guard and take precautions against thieves who rifle trunks, ransack bags, and break open boxes, then he must bind with cords and ropes and make fast with locks and hasps. This the ordinary world calls wisdom. But if a great thief comes along, he will shoulder the boxes, hoist up the trunks, sling the bags over his back, and dash off, only worrying that the cords and ropes, the locks and hasps are not fastened tightly enough. In that case, the man who earlier was called wise was in fact only piling up goods for the benefit of a great thief.’ (Zhuangzi 10, Watson translation)

The threat Trump poses is not to the ‘locks and hasps’ of the rule of law. The ‘Muslim ban’ is being enthusiastically enforced by state officials. The rule of law is only ever useful against a small thief, one who does not have the audacity to steal the whole state.

The threat Trump poses is to people. The endless, uncritical ‘rule of law’ rhetoric of the post-war era has magnified that threat by centralising power. Worrying about the rule of law now is like watching a robber take your bag and worrying that the handle might not be strong enough to carry all the things he is stealing from you.

Eric Schliesser on Ibn Khaldun and spontaneous order

It’s always dangerous to generalise across time and cultures, but there seem to be real continuities between this 14th century Islamic philosopher and Oakeshott and, in another way, Rorty:

‘(Now,) scholars are accustomed to generalizations and analogical conclusions. When they look at politics, they press (their observations) into the mold of their views and their way of making deductions. Thus, they commit many errors, or (at least) they cannot be trusted (not to commit errors). The intelligent and alert (segment) of civilized people falls into the same category as (scholars). Their penetrating minds drive them toward a searching occupation with ideas, analogy,and comparison, as is the case with jurists. Thus, they (too) commit errors.’

Read the whole thing here.