Passing a Loathsome Test: The Case Against the CalTPA

 

I have just completed my work on my California single-subject teaching preliminary credential. This allows me to teach middle or high school. (If you know of any schools in the Los Angeles area looking for a history teacher, feel free to contact me.) Work on this credential involved classes, four months of unpaid student teaching, and the completion of both cycles of the CalTPA (California Teaching Performance Assessment) exams. I passed both parts of the exam with plenty of wriggle room so I can say without accusation of sour grapes that the CalTPAs are models of how not to design an assessment. This is ironic as the CalTPA Cycle 2 exam is specifically about constructing assessments. 

The CalTPA exams consist of two parts (Cycle 1 and Cycle 2) and are meant to be taken during student teaching. They include large writing sections as well as videos of the perspective teacher in action in the classroom. (Yes, you need to get students to sign permission forms in order to film them.) Cycle 1 centers on a particular lesson that you teach and how you adapt that lesson with three focus students in mind. One student should have some sort of special need. A second should be an English learner, and a third should face some kind of challenge outside of school. (This could be, for example, an immigrant student or someone who is homeless.) Cycle 2 deals with a sequence of lessons and assessments. Furthermore, one is supposed to evaluate how students did on the exam and, based on the results, either offer an extension of the lesson or reteach some part. It should be emphasized that the CalTPAs are not something that you can simply complete in an afternoon. Each of them requires weeks of planning and writing. Together, they serve as the dominant assignment of the four months of student teaching. Furthermore, you have to wait at least three weeks between the time you submit until you get back your results. 

Each Cycle is graded based on a series of rubrics. (Cycle 1 has eight rubrics and Cycle 2 has nine.) Each rubric is graded on a scale of 1-5. To pass Cycle 1, one needs to score at least a 19 and to pass Cycle 2 one needs to score at least a 21. If you score a 1 on any two rubrics in a Cycle, you fail. In practice, the goal of each of the Cycles is to score a 3 on at least three of the rubrics, assuming you get 2s on everything else. Scoring a 4 or a 5 on a rubric requires a whole new level of work so it does not make sense to pursue it. Instead, one should focus on getting as many 3s as possible. (For Cycle 1, I got all 3s for a score of 24 and this was considered exceptionally good. For Cycle 2, I got seven 3s and two 2s for a score of 25.) 

There are a number of purposes for an assessment. A pre-assessment tells the teacher what students already know. This allows the teacher to modify the lesson to better cover what students are unfamiliar with. Furthermore, the teacher now has a baseline to compare future assessments and decide if students have actually learned anything. Next, there are assessments as learning, where students answer questions or practice doing the material as a means of gaining mastery. These usually have a strongly informal quality to them. Finally, there are formative assessments where students demonstrate what they have learned. A crucial concept underlying all three of these forms of assessment is that they are not about judging students. If anything, they are about seeing if the teacher has done their job and figuring out how they can improve. Furthermore, assessments are not supposed to be high-stakes affairs. There should be lots of assessments over the year. Students are going to do well on some and not so well on others. Everyone has the right to the occasional bad day without suffering serious consequences.    

In addition to these three kinds of assessments, we should acknowledge the existence of qualification assessments to sort out those with a particular ability from those who do not. By definition, such assessments do judge students and it is inevitable that they will be high stakes with actual consequences for failure. In the real world, we require such assessments. There is a place for the SAT, the AP, and even the CalTPA. That being said, when such assessments are employed the burden of proof should be on the testers to show that their assessment legitimately is about whether the student has mastered the material and is qualified for a particular position as opposed to merely being well suited to pass the test. For example, the flaws of the SAT and AP exams can be measured in terms of how they have inserted themselves into the curriculum and are being consciously taught.  

On the surface, the CalTPA exams test prospective teachers on material that is important for teaching. Teachers should be able to craft lessons and units with the needs of students in mind. Furthermore, assessments should be given as a means to generate useful data about what students are learning as opposed to teachers simply imagining that students have learned material because it was taught.    

The fundamental problem with the CalTPAs is that, because they contain such lengthy instructions and detailed rubrics, the tests, in practice, are not about how well prospective teachers understand lesson design and assessments but how carefully they have read and comprehended the CalTPA instructions and rubrics. It should be noted that many of the rubrics have a number of different parts and messing up even one of those parts will get you a lower score. This is the kind of assessment that a well-meaning and competent student teacher can easily fail simply because there was an honest misunderstanding on a few minor points. What makes this possibility frighteningly plausible is that about half of the rubrics on each of the Cycles center around the video clips that you send of your teaching. Did you demonstrate exactly what they were looking for? Even worse, did you get the students to show what was needed and to speak loud enough for the filming equipment to pick up? While lesson and assessment design is important for teaching, I do not want prospective teachers judged on their ability to film their classrooms. 

As you need to pass both exams to get a teaching credential, the stakes are high. This creates particular stress if, like me, you do student teaching in the winter semester. I ended up submitting my Cycle 2 exam at the beginning of May and then had to wait until June to get the results. If I had not passed on my first attempt, I would have needed to resubmit my material to try to pass in July, jeopardizing my chances of getting a job for the Fall.   

In truth, the CalTPA exams could easily be fixed. My solution would be to divide the test down to the individual rubrics and allow for the evidence used in the rubric (whether written or filmed) to be submitted one at a time. You would still need to score a 40 on all the rubrics together, but now the stakes and the stress would be lowered. As you finish gathering the evidence for each rubric, you submit it. If you get a 3, you are fine and should move on to submitting the next piece of evidence. If you do not get a 3 then you should either resubmit the evidence or simply make sure that you do better on the next rubric. By the time the final rubrics come around, the stronger students will have already passed and will not need to spend a month worrying.

With such a design, there will be much less reason to worry about having misunderstood something as such misunderstandings will be picked up quickly and rectified without serious consequences. This is how we handle major assignments in school. Students hand in drafts for particular parts of the assignments. This makes it practically impossible for a student acting in good faith to fail as problems will be picked up early on and fixed.   

Jewish Capitalism and Religious Liberty

 I would like to follow up on my previous post and consider the implications of what I wrote for Judaism. Does not Judaism have its own tradition of religious liberty, independent of Protestantism? For an explanation, let me turn to the example of Max Weber and Capitalism.

Much as I argued that Protestantism is a crucial ingredient for religious liberty, Weber famously argued that Protestantism played a critical role in the development of Capitalism. For Weber, Protestantism allowed for a “worldly asceticism.” Traditionally societies had operated on the assumption that labor was a curse. Most people were fated to be peasants with only a few having the opportunity to be aristocrats leading lives of leisure. The implication of this was that one worked only as hard as one needed to with the goal of having as much leisure as possible. If you managed to get some money, you should stop working.

In the Protestant model, work became the natural state of affairs for human beings. As such, even rich people, in no danger of starvation, should work. If you managed to get ahold of some money, you should not take an extended vacation. You should not even donate the money to support the Church. Instead, you should invest that money back into your business as capital. Instead of being saved through good works like charity, you are saved by being one of the Elect. A possible sign of being one of the Elect is that God causes you to be successful in business. From this perspective, being a capitalist is not contrary to the Protestant faith. On the contrary, capitalism is the logical fulfillment of Protestantism.

To be clear, Weber recognized that people engaged in capitalist-type behavior long before Protestantism. What Weber was arguing was that Protestantism created an ethical revolution where trade was seen as a principled moral good. Think of it this way, the medieval Church accepted prostitution as a necessary evil. This did not mean that being a prostitute was ok. On the contrary, being a prostitute was something that someone was ashamed of and only did for as long as it was absolutely necessary before trying to get out. Similarly, one was not proud to be a merchant and engage in something as “sterile” as trade. Instead, one made some money from trade before retiring and trying to “atone” for having resorted to such base activity.

In regards to Jews, Weber argued that they were “emergency” capitalists. There is nothing inherently capitalist about Judaism. Ancient Jews were not particularly involved in trade. It was only circumstances in Christian Europe, not anything within Judaism, that caused Jews to develop a capitalist element. Medieval Jews were cut out of most professions, so they turned to money lending. As such, Weber did not believe that Jews provided a model of principled capitalism to say that being a capitalist was a positive good.

In response to Weber, I would argue that it is possible for principles to evolve out of pragmatic necessity. For example, Isaac Abarbanel, living right before the Protestant Reformation, rejected the Aristotelian claim that money was sterile and therefore argued that usury was a positive good. Clearly, Abarbanel did not come to this position from an “objective” reading of the Hebrew Bible. This may have been self-interest, but that should not matter. Abarbanel, presumably, honestly believed that money-lending Jews like himself were morally superior to the Christian nobility responsible for the expulsion of 1492. If claiming that Jews were morally superior to Christians required one to believe that capitalism was a positive good, then we can add capitalism as the fourteenth principle of the Jewish faith.

To be clear, Jews never were in a position to bring about a capitalist ethical revolution by themselves. It is not as if, capitalism ever became acceptable just because the Jews did it. Furthermore, the Jewish experience with capitalism remained linked to their place within Christian society.

Much as Protestantism created the grounds not simply to engage in capitalism as a practical necessity, but as a matter of principle, Protestantism helped lay the groundwork for a principled support for religious liberty. This should be distinguished from a pragmatic tolerance where you refrain from murdering members of another faith because you fear they will murder you back. I would see the Jewish tradition of religious liberty, much like the Jewish tradition of capitalism, as being rooted in the Jewish experience as a persecuted minority. It can be argued that the fact that Jews have needed to support religious tolerance for pragmatic reasons, does not preclude the development of a principled belief in religious liberty that it is better for people to persist in their freely believed error rather than be coerced into the truth. An example of this can be seen in the Jewish disdain for missionary activity. Jews in the ancient world tried to convert non-Jews. During the Middle Ages, Muslim and Christian authorities did not allow Jews to try to convert Muslims and Christians. Today, Jews do not try to convert non-Jews and have even developed theological reasons to justify not trying to “save the souls” of non-Jews.

This does not change the fact that Jewish support for religious liberty came out of a distinct experience with non-Jewish cultures. If you are going to have Jews who support religious liberty on principle rather than as a simple matter of deeming non-Jews as beneath even missionary activity, then it will require someone with positive interactions with non-Jewish religions. An obvious candidate would be some kind of Philo-Semitic Protestantism that acknowledges some legitimacy to the Jewish experience.    

The Protestant Balance for Religious Liberty

 

Historically, there have been few principled defenders of religious liberty and, in truth, there are few today. To appreciate this, it is useful to consider the various factors needed to render religious liberty as something sensible. There is a balancing act here. One needs to believe that religion is important but that, at the same time, there is a value to having a personal conscious.

The obvious threat to religious liberty has been traditional religions themselves. If you believe in capital T TRUTH and that you are in possession of it, then why should you tolerate people who are in error? Worse, what if these people are not only obstinate in their heathen and heretical beliefs, but insist on passing their errors on to their innocent children or uneducated neighbors? From this perspective, working for the Spanish Inquisition can be seen as a humanitarian gesture. Your main job is to explain to people how they are in error. The only people who are going to be tortured or killed are those obstinate heretics who refuse to admit that they are wrong and have, therefore, brought their calamity upon themselves. 

To say that religion has often been a threat to religious liberty does not mean that secularism offers any protection. Keep in mind that to desire to protect religious liberty, one needs to still assume that religious beliefs and practices are actually important. One thinks of the example of Thomas Hobbes. Hobbes was a materialist if not an outright atheist. This did not mean that he supported religious liberty for atheists or anyone else. On the contrary, it was precisely because Hobbes rejected all religious dogma that he had no problem allowing the king of his Leviathan state to enforce whatever religion he chose. Since no religion is true, the only legitimate purpose for a religion is as a signaling device to demonstrate one’s loyalty to the regime. The king should make an official religion, the more ridiculous the better. The people who are willing to say that they believe this nonsense show that they understand the importance of everyone submitting themselves to the authority of one person as the only solution to the war of all against all. Those people who insist on maintaining their loyalty to some other absurdity, presumably because they actually believe it, are a threat to public order and need to be killed. For example, Charles I had to deal with English Puritans who cared about priestly vestments as well as incense and candles in church. Before long, these Puritans were also objecting to Charles’ right to tax. They then plunged the country into a civil war and chopped Charles' head off. All of this could have been avoided if Charles had been willing to properly crack down on religious dissent.

The confused association between secularism and religious liberty comes about because secularists have hijacked the term “religious liberty” in an Orwellian fashion and have used it to mean something quite different. The secularist version of religious liberty is a rigged “heads I win, tails you lose” game in which the State is not neutral regarding religion but actively secular. Religion is then banned from the public sphere to the privacy of the home. Parents may be allowed to personally be religious but with few resources to prevent their children from exercising their “religious liberty” and leaving the faith. If the metaphysics of gender ideology can be supported with public funds more easily than the metaphysics of the Trinity then you do not have religious liberty. 

In truth, religious liberty is an accidental outgrowth of the Protestant Reformation. While Luther and Calvin were not proponents of religious liberty and in fact were, in many respects, worse than their Catholic opponents, Protestantism personalized the process of salvation. Either one needed to affirm that only Jesus (and not the works of the Church) can save or be one of the Elect, chosen from before creation for salvation. If people are saved as individuals and not as members of any established church then forcing people to follow the dictates of even the “right” church is useless for actually saving souls.

The Protestant focus on individual salvation is crucial here because it allows for both components of religious liberty to simultaneously exist. Clearly, religion is important and people need to be allowed to practice the “right” kind in order to save their souls. That being said, since God has his own highly circuitous route to how people might come to believe the right things, people should be allowed to persist in their false beliefs until God, and not the State, shows them the light. To be clear, one does not have to be a Protestant, to be a friend of religious liberty. That being said, there are grounds to suspect the religious liberty bona fides of anyone who has not been influenced by Protestant thought.     

Racism or Confession as a Social/Political Skill

 

The beginning of Home Alone 2 offers us an excellent example of a well-handled confession on the part of Kevin's older brother, Buzz. One would think that Kevin has the moral high ground against Buzz, who instigated the fight during the staged Christmas pageant. What Buzz understands, though, is that this is not about what either he or Kevin actually did but about the legitimacy of the McCallister family as a social unit. What the rest of the family cares about is the fact that they were humiliated by Kevin and Buzz fighting, which showed everyone in the theater that the McCallisters are not a real family but a collection of individuals who place their petty egos over the common good. As such, the point of Buzz's speech is to acknowledge the authority of the family and apologize primarily to them. The fact that Buzz is insincere actually benefits his cause as it demonstrates his willingness to follow the rules of the family game and place them above any personal morality. 

Kevin makes the mistake of thinking that this is about personal morality. Buzz wronged him so he had the right to respond. Buzz was insincere with his apology so he is not obligated to apologize to Buzz. Since the family, is not about to punish Buzz, they are all in league with Buzz to humiliate him so he has no obligation to apologize to them. To bow to the authority of the family would mean giving up his moral claim of being wronged by Buzz. Kevin cannot place the family's interest over his personal hurt and, therefore, falls into Buzz's trap. It is Kevin ends up being seen as the wrongdoer in the incident and is sent to bed. In the end, Buzz, despite his dubious morality, wins because he has superior social skills. One might even say that his lack of morality has helped him develop superior social skills in the sense of making the Machiavellian jump of recognizing the existence of a political mindset that is distinct and often contrary to conventional morality. 

In defense of the McCallister family, one could argue that they are right to punish Kevin. As a kid, Kevin is incredibly self-centered and focuses on his personal dignity. He needs to learn the importance of family. (This is Kevin's emotional arc that is crudely shoehorned into both movies, in between having the Wet Bandits comically walking into his booby traps.)   

Let us now move to a scenario inspired by Bill Cosby. Imagine two students caught smoking in the bathroom. Both students are brought before the school administrator and asked to confess and apologize. It would seem that, as the students have both committed the exact same action, they should receive the same punishment with the confessional and apology being mere incidental parts of the story. In truth, the response of the student to being caught is actually more important than the infraction itself. As such, even minor differences in how students respond to being caught will have a greater effect on how they are punished than even their actual deeds.  

As we have seen with the case of Kevin and Buzz, when someone commits an infraction there are two wrongs committed. There is the action itself (whether fighting during a public recital, smoking in the bathroom, or first-degree homicide) and then there is the challenge to the legitimacy of the social unit (whether the family or larger units such as a school or even a country). The implication here is that the transgressor does not accept the right of the social unit to impose obligations. Since societies tend to rely more on the soft power of people not being able to even conceive of rebellion in order to function than on actual coercion, the belief that one is allowed to break the rules is an even graver threat than the actual rule-breaking itself. This is one of the reasons why it is so important for courts to get defendants to plead guilty. The convict who admits that they were wrong and throws themselves at the mercy of the court, affirms the court's and, by extension, society's legitimate authority to punish. The crime that initially struck at the authority of society now comes to strengthen that authority.  

What happens when one of the students has a better instinctual understanding of the social theory of crime and punishment particularly as applied to white middle-class people perhaps because they are themselves white middle-class kids? As such, they are able to assume the proper contrite pose and tone that the white middle-class administrators expect. Now, what if the other student is an inner-city black kid who lacks the training to handle white middle-class administrators? (Alternatively, what if the student is on the autism spectrum and struggles, in general, to strike the right tone with neurotypicals?) 

If the white middle-class kid gets away with a slap on the wrist and the poor black kid gets the book thrown at him, is that racism? the skin color of the students would not offer decisive proof as the school could point to a subtle but real distinction in how the students behaved. Furthermore, the fact that we are dealing with subtleties traps us into having to give the administration a lot of leeway to call things as they instinctually see fit. To say that administrators should not be attempting to force middle-class "white" values on students and to do so is racism is also far from obvious as the administrators can argue that part of their job is to teach students to function within a society run by middle-class white people. Even if we disagree with them, the fact that they sincerely believe this and see themselves acting for the benefit of the black students makes it rather difficult to say that they are racists. 

Coming Out of the Closet to Claim Group Rights

Essential for understanding African American history in this country is the fact that, for hundreds of years blacks were persecuted as a group. It was not just that blacks were disproportionally targeted for slavery, lynchings, and ultimately the system of Jim Crow, these things were part of an organized conspiracy against black people for the simple reason that they were black. By the end of the 18^th century, whites had developed the sense that the new United States was founded as a white man’s republic and therefore required a rigid distinction between whites and blacks that kept blacks in a subordinate position. This racism served a practical purpose in that it gave American whites, who otherwise did not have much in common with each other a sense that they were bonded into a common project. (This is not to defend American racism. On the contrary, this is a reason to take racists seriously and not as mere rhetoric.) This belief in America as a white man’s republic obviously existed in a dialectic with the belief in America as the country of “all men are created equal.” It is to America’s credit that, in the long march of history, the belief in all men are created equal has tended to win out over the white man’s republic.

The fact that African-Americans have been persecuted as a group is important because it establishes at least hypothetical grounds for blacks to make demands from white society that go beyond the elimination of laws that outright discriminated against blacks. The fact that I have personally never owned slaves and no African American alive today has ever been formally enslaved in this country does not mean that I do not owe something to African Americans. As critical race theorists would argue, I have benefited from systemic racism. Perhaps I should be willing to accept non-discrimination laws applied to private businesses, affirmative action, or even allow for my tax dollars to fund reparations?

To be clear, there is a risk in having blacks pushing the claim to be a distinct group as the traditional argument for their civil rights rested on the premise that blacks were not really a group. On the contrary, the idea was supposed to be that the notion that the color of a person’s skin could affect a person’s identity was a ridiculous notion invented by foolish racists. If blacks are going to be so reckless as to undermine the entire case for their civil rights and claim that they really are different from white people, they might be left to reap the consequences.

It is interesting to compare the case for black civil rights to LGBTQ+ rights as it is hardly obvious that LGBTQ+ people can actually claim to be a group let alone a historically persecuted one. For one thing, their opponents generally tend not to see them as members of a group but simply as people engaged in an action. It is that action that is the source of the opposition.

Furthermore, LGBTQ+ people are not, in any obvious way born LGBTQ+. We can say that black is a meaningful group in large part because we can accept that a newborn can, in some real sense, be classified as black. (We can go around a maternity ward and point to the black, white, Asian, and Hispanic babies and say that they are all beautiful in God's eyes and that it is wonderful to have such diversity.) What does it mean to say that a newborn is LGBTQ+. Think of it this way; how many black teenagers have undergone the experience of coming “out of the closet” to their parents? “Mom and Dad, I want you to know that I am black.” To which the parents respond: “Are you sure that you are black. Maybe, if you listened to more country music, you will become white.” LGBTQ+ people historically have not been raised by LGBTQ+ parents with an LGBTQ+ identity. It would seem that this is merely something that they decide for themselves. As such, it should make no wider claims on heterosexuals beyond the right to be left alone.  

Consider the consequences of coming out at an even later point in life. It is hardly obvious that a forty-year-old man who comes out of the closet has really discovered his “true identity” that he has been hiding, perhaps even from himself, all along. On the contrary, this sounds like someone going through a mid-life crisis that has led them to take on a "new hobby." Such behavior should be tolerated with amusement but there is no need to grant the person any kind of moral support for they have not done anything virtuous. Note that this all assumes that our middle-aged out of the closet gay person has not abandoned a wife and children to pursue his gay lifestyle. If he has then he is liable for social condemnation and possibly even legal penalties.

If LGBTQ+ people are not a group then they cannot make a claim to be persecuted as a group. For that matter, it would not be possible for them to be discriminated against. To be clear, I agree that anti-sodomy laws were wrong as they violated personal liberty. Then again, I believe with equal conviction that drug laws are wrong. This is not because they discriminate against potheads and keep them from becoming their true high selves. I do not accept that Pothead counts as a meaningful group. Human beings should have the right to ingest substances. Similarly, human beings should have the right to engage in consensual adult acts whether it is sodomy or incest. To be clear, in none of these cases should the right to engage in an action be confused with a right to a job or to social respectability.   

Something that I find fascinating about the LGBTQ+ movement is how they have managed to turn what should be an argument against them in their favor. It is argued that the fact that LGBTQ+ people are usually not raised with an LGBTQ+ identity is one of the ways that they are persecuted. LGBTQ+ people grow up "deprived" of their "authentic" selves. They have to struggle against a heteronormative society that tries to inflict heteronormativity upon them tempting them to live "inauthentically." From this perspective, even the progressive parent who never consciously attempts to stop their child from assuming an LGBTQ+ identity is still guilty of anti-LGBTQ+ persecution merely for raising the kid in an "inauthentic" fashion on the assumption that they are heterosexual or cisgender. This is sort of like the frum-novel trope where the Jewish kid is raised by Gentiles who try to keep the "truth" of his Judaism from him only for his "Jewish spark" to shine through in the end. (Note that the claims of an authentic LGBTQ+ self and an authentic Jewish self are both metaphysical claims. As such, the First Amendment would require that the government take them as equally valid.)   

A practical policy implication of this argument that LGBTQ+ people are a group even to the point of claiming that LGBTQ+ kids exist, is a push to bring LGBTQ+ material into schools. The goal is to teach kids about LGBTQ+ practices but, more than that, they wish to teach that LGBTQ+ people are a legitimate group with the moral high ground due to their "authentic" living earned by struggling against the constraints of a persecuting culture. This leaves children with an obvious question: might they really be LGBTQ+? If they come out as such, they will be praised for showing the "courage" to be their "authentic" selves. The more there are children who can be convinced to do this, the easier it becomes to argue that LGBTQ+ people really are a group. If children really are born LGBTQ+ and only needed adults to give them the language and the support structure to come out of the closet in ways that are in "no way manipulative," then being LGBTQ+ must be a legitimate identity. As such, society must not only eliminate all laws that ban LGBTQ+ practices but also "atone" for the crime of not previously recognizing that such an identity existed. 

Arguably, this would require greater government action than rectifying American racism. Consider, blacks have never had to seriously struggle against people who refused to accept that there was such a thing as black people in the genetic sense. For LGBTQ+ people to receive their full rights as a group, it might be necessary, regardless of the First Amendment, that everyone must be forced to acknowledge that they really are a group. 

E. D. Hirsch Jr.'s Cultural Literacy: A Secessionist Response

 

E. D. Hirsch Jr. is one of my favorite education theorists. I find that cultural literacy makes intuitive sense to me with its emphasis on things that children should know. While Hirsch often gets accused of trying to promote "white education," his goal has been to help children of color. If you live in a society founded upon European culture and you wish to function within it then you are going to need to know the things that members of the dominant culture take for granted. This does not mean that there is anything superior about European culture nor does it mean that American culture cannot or should not change to reflect the greater diversity of its people. One adapts to the world around oneself.  

Having a common set of cultural references functions in much the same way as language in allowing for a functional democratic country. A monarchy can function and even benefit from the fact that the peasants in different parts of the country speak different dialects and would not understand each other even if they were to meet. A democracy, on the other hand, needs a population capable of deliberation to at least come to the belief that they are one people with a mutually understood common good that all parties can be trusted to sacrifice themselves for. In practice, this requires that people have a common language that allows them to understand each other. 

In truth, it is not enough that people speak a common language; to avoid people simply speaking past each other, it is important that people also have a common set of cultural references. For example, being familiar with Star Wars to the point that you take being called "rebel scum" as a compliment, shows me that you have a deeply ingrained sense that it can be legitimate to oppose certain kinds of authority. This can serve as a useful foundation for political cooperation. From this perspective, it makes sense to teach Star Wars in school in much the same way that we teach Shakespeare. (Schools can even use Ian Doescher's Shakespearian adaptations of Star Wars.)     

Following Hirsch, I am skeptical of claims to be able to teach critical thinking as it is difficult to evaluate. If students are unable to say who the American Revolution was fought against, I am inclined to assume, barring evidence to the contrary, that they are incapable of coming up with coherent arguments in favor of democracy or monarchy. Furthermore, my cynical self suspects that the push by schools to teach critical thinking is a cover for their failure to actually teach. If schools can pretend that they are teaching critical thinking (and there is no easy to prove that they are not teaching it) then the fact that they objectively fail to teach basic facts about the American Revolution cannot be used to reach the obvious conclusion that the school is a waste of the students' time as well as the tax payers' money and should be dismantled.

Similarly, it is a dead end to try to teach reading in the abstract. Students can never become good readers in general but only good readers of specific subjects from which they have mastered the necessary vocabulary and references. To do this, students need to do extensive reading in those subjects. Along the way, they should be aided by teachers who are themselves well-read in the particular subject and understand the particular vocabulary and references that are necessary to make sense of the material.  

An area where I disagree with Hirsch is that Hirsch favors a highly centralized school system with a set curriculum that does not change from teacher to teacher and school to school. To be fair to Hirsch, he is not a libertarian and has no prior commitments to limiting government authority. Furthermore, there are practical reasons to support top-down curriculums. It simply is not workable to expect teachers to design their own curriculums that are going to effectively teach state standards. It is one thing if teachers are simply expected to offer courses on their eccentric selves (not necessarily a bad method of teaching) to allow them the liberty of teaching whatever they think is worthwhile. If we expect teachers to fulfill specific goals then they should be given PowerPoints, videos, and assignments to teach that information. 

From a social or political perspective, it makes sense to not only insist that teachers in the same school teach a common curriculum but that all schools in a city, state, or even country teach the same curriculum. If you want a unified society or country then students are going to need a common set of things that they can assume that everyone else knows as well such as the English language or Star Wars.

As a secessionist, I believe that the diverse people currently living in the United States would be better served if the country were to be divided. This would end the culture wars and allow everyone to live in a country designed to suit their particular tastes. As such, I believe in the importance of cultural literacy but it serves a different purpose for me. Instead of using cultural literacy as a normative claim that everyone should have a set of common cultural references to allow them to function as part of one country, I see cultural literacy in positive terms. Where should we draw the lines for the different "un-United States?" A useful place to start a discussion would be to privatize education and see what kinds of curricula different schools would create. Those schools that developed similar curricula based on similar cultural references should likely remain as part of the same country. Those populations that clearly have different cultural references to the extent that they would not want their children taught in the other group's school system should split up. 

It is obvious to me that the Hasidim of New Square or Kiryas Joel should be given their own country. One can see this simply from the fact that they want a different kind of school curriculum for their children based on making sure that these children grow up without cultural references like Star Wars. I am also willing to accept that people who want their children taught a 1619 Project or a Howard Zinn version of the American Revolution should also belong to a different country from me. All of this can be done peacefully and would actually help different groups live with each other. I can be perfectly tolerant of people with radically different political values from mine when they live in a different country. It is when we have to share a country that we are at risk of conflict.      

         

Fighting the Losing Battle

 

Here is an utterly fantastic fan-made Star Wars lightsaber duel. This is a great example of fans understanding Star Wars far better than the people who run Disney or even George Lucas. If only we got rid of copyright laws, we might actually get some decent Star Wars. 

What I would like to particularly call attention to is the moment where the Light Side force user has a vision that she is going to die. Her response is to sit and meditate upon the Force, which is how the Dark Side person finds her. This scene pays homage to the lightsaber duel in Phantom Menace where the fighting is stopped because of the energy shields. Qui-Gon sits and meditates while Darth Maul angrily paces. 

 

The idea here is that Qui-Gon is at peace with the Force as opposed to Darth Maul being consumed by his Dark Side-fueled hate. One gets the sense that Qui-Gon is indifferent to the outcome of this fight, whether he lives or not. He serves the Force and it is the Force that has brought him to fight Maul. If it is the will of the Force that he dies, then so be it. (The fact that Obi-Wan turns to anger to defeat Maul after Qui-Gon is cut down is one of the more subtle ways in which the Dark Side is the real winner of the film.) Similarly, in our film, the woman accepts her coming death as the will of the Force. The fact that following the light has led her to this position does not cause her to turn to the Dark Side in the hope that she can change her fate.  

As I have mentioned previously, the chief conflict of Star Wars, when understood properly is that the Jedi are not capable of truly fighting the Sith. While the Jedi might be allowed to protect themselves and their friends, the moment they attempt to save the galaxy from falling to the Sith, an inevitable part of an unending cycle, they have already implicitly fallen to the Dark Side by acknowledging the central assumption of the Sith that the Force needs to be used to "fix" the galaxy. This inevitably means taking over the galaxy and ruling over it as an emperor, killing anyone who gets in the way. As such, to defeat the Sith means to become the Sith lengthening the time that the Galaxy must remain under Sith dominion. The only way to defeat the Sith is to allow them to eventually destroy themselves as they turn on each other in their bid to be the Sith Master.  

The Socialist Ace: What If You Were in Charge?

As a free-market person, I am sometimes jealous of socialists. They seem to march from political success to success. Even the murderous failure of the Soviet Union seems, in retrospect, a minor pothole on the road as opposed to the cliff to cast socialism forever outside of the Overton Window of socially accepted opinions. By contrast, the horrors of Nazi Germany have made it impossible to be a respectable fascist. It does not matter if you claim that the Nazis were not "real fascists" and that you support "democratic fascism." 

An essential component of recognizing the evils of fascism is a refusal to distinguish between the ideals of fascism in theory and the horrors that actual fascists inflicted upon the world. This principle extends so far that, in practice, one is forced to teach a cartoon version of fascism in school where fascists are motivated simply by hatred and a feeling of superiority over all other groups. Teaching kids that fascists were motivated by the democratic ideal of the nation coming together under the leadership of a leader who would make everyone turn from selfishness and instead work for the common good would raise too many uncomfortable questions and cannot be allowed.

Socialism, by contrast, is allowed to be judged by its ideals disconnected from its mass murders which are attributed to the personal failings of leaders like Stalin and Mao. In truth, as with fascism, the crimes of socialism were committed not because people failed to live up to its ideals but because they followed them all too well. Understand that if you truly believed that you had the solution to the problems of mankind and could make the world a loving happy place and all that was standing in your way were a few million bad people motivated merely by spite, you would agree to kill them. To refuse to save mankind out of a personal desire not to get your hands dirty with a few homicides would be monstrous.

What makes the ideals of socialism particularly appealing is a very simple question. If you look around the world, it is obvious that it is an incredibly unjust place with the world's resources distributed in a way that can neither be defended on grounds of fairness nor for its ability to maximize utility for all of mankind. If you were in charge of distributing the world's resources, could you distribute them in a way that was fairer and optimized utility? For example, it does not take a genius to come up with the idea that the world would be a better place if we paid professional athletes less and used the money to pay for lunches for poor kids.  

If you answered yes to giving kids free lunches or to any number of the schemes that are likely running through your head, then it is very difficult to resist socialism in principle. We might still have to figure out a means to make sure that the right person, someone like us, came to the top. That being acknowledged, once we solve this problem, we should be able to make the world at least somewhat of a better place. Recognizing that the world's resources are not distributed justly, it is the job of all moral people to work to redistribute resources in a way that is more equitable. From this perspective, it is hard to resist dividing the world into socialists, the good guys who work to better mankind, and opponents of socialism who want the world to be unjust presumably because they either are too ignorant to recognize that the world is unjust or because they are part of the oppressive class who are responsible for all the oppression.

Historically, most people, particularly if they have had some education, have believed that the world would be a better place if only they were in charge. One thinks of the example of Plato and his philosopher kings. It is not a coincidence that Plato was essentially a socialist who believed that the rulers of his republic should hold everything in common including wives and children. 

A partial defense against the siren call that socialism would lead to a better world if only your people were in charge is to recognize that it is unlikely that your people will ever get to put their plan for a better world into practice. Imagine that you had to choose between accepting the political/economic order that we have or agreeing to live in a world in which a random individual was allowed to redistribute resources according to their sense of justice. How many people would chance socialism then? Make no mistake that one person's version of justice is, to others, a nightmare worth forstalling even at the cost of their lives. I can imagine that certain ex-girlfriends and advisors would rather kill themselves than take a chance on living in my "just" world.    

A higher-level defense against socialism would be Hayek's "Why the Worst Get to the Top," which essentially argues that we do not even have the opportunity to take our chances with the moral sensibilities of an average person. Choosing socialism will mean submitting ourselves to the sort of moral monster willing to do what is necessary, even mass murder, in order to place themselves in a position where they can refashion a country according to their notion of justice. 

To truly break free of the spell of socialist ideals, one has to instinctually believe to the core of their being that if they were the benevolent dictator and had the power to redistribute resources according to what they believed was right, the world would not be a better place. Consider the example from earlier of using a socialized athletic system to fund education. We already have a version of this with college athletics where the millions that some athletes are worth are redistributed to universities that work for the "public good." I have a hard time accepting that the NCAA is really more just than the NBA or the NFL but I am sure readers could tweak the system to make it fairer. 

I confess, even after being a libertarian for more than a decade, I still cannot shake the fantasy that I would make a pretty good world ruler. Granted, my fantasy of being the Messiah includes a lot of telling people that they are all individuals and can think for themselves. As this is a fantasy, everyone is able to think for themselves while simultaneously doing what I would have wanted them to do anyway, saving me the effort of even having to think what orders I should have given in the first place.           

Are You a Fuehrerphobe?

 

As I mentioned in the previous post, you can win any debate if you are allowed to control the language used to describe things. Imagine that you had to debate a Nazi but the Nazi got to decide what the two of you had to call things during the debate. How well do you think you can do?

The Nazi gives the following opening: I believe in national democracy. The people express their will as a nation by gathering in stadiums to shout their adulation for the Fuehrer. This objectively proves that the Fuehrer embodies the collective will of the people. It is only through the Fuehrer that the people’s will can be expressed, allowing them to exist as a nation instead of a collection of squabbling individuals who will easily be conquered and enslaved by cosmopolitans, neoliberals, and Zionists. To oppose the Fuehrer is to oppress the people by robbing them of their voice and their ability to assert their nationhood.   

Essential to national democracy are the principles of freedom of speech and tolerance. The people have the right to express their will as embodied in the Fuehrer when he speaks the nation's truth. The nation is made up of many different kinds of individuals who, when left to their own devices, will inevitably disagree with each other over art, economics, and their non-Zionist religions. As the embodiment of the nation, the Fuehrer, through his person, resolves all contradictions among the people. This allows all members of the nation to tolerate each other, despite their surface disagreements, as they recognize that they have been made one through the Fuehrer.    

The elitist cosmopolitan neoliberal Zionist Fuehrerphobes seek to maintain their grip over the people and deny them their rights. They wish to replace the genuine democracy of the people with an Orwellian democracy with sham elections for politicians who do not embody the will of the people as only the Fuehrer can. National democracy is built on love for the people. Fuehrerphobes hate the Fuehrer because they hate the people. By trying to rob the people of their nationhood, they are essentially committing genocide. If you truly loved someone, you would respect them for who they genuinely are and not try to commit genocide against them.

Just as it is important not to be misled by the Orwellian democracy of the Fuehrerphobes, one should not fall for their Orwellian claims of tolerance. As we know from the Popper Paradox, it is not possible for a free society to tolerate people who reject tolerance and use the democratic process as a cover to impose tyranny. Since support for the Fuehrer is what makes someone part of the nation, Fuehrerphobes, who have separated themselves from the people in their attempt to overthrow democracy, cannot legally enjoy the rights of citizenship. They do not have the right to interfere in elections to fake the results to pretend that the Fuehrer does not have the full support of the people either by voting or by promoting fake news. 

It should be understood that underneath all of this rhetoric, lies a serious argument about the nature and purpose of democracy and liberty that liberals need to be able to effectively respond to. To understand Fascism, it is essential not to underestimate the lengths to which the common man will go to stick it to the liberal elitist intellectuals that he knows have nothing but contempt for him. That being said, liberals will never be in a position to storm this citadel unless they are first able to take the outer trench of language.

To add a further twist on this debate idea, imagine that you have a class of students raised on “national democracy.” These are genuinely good kids. They believe in freedom, tolerance, and social justice. They are eager to work for the greater good of the people by demonstrating their commitment to these principles to the administrators of elite schools. They like you but there is something a little off about you as you are different from every other teacher they have had. One day, a student asks you if you are a Fuehrerphobe. 

A hush immediately falls on the class. The students all know, with the surety that smoking is bad, that Fuehrerphobia is something simultaneously disgusting and absurd that should appeal to no reasonable person and yet is so deeply widespread in society that the Fuehrer is required to take emergency measures to protect the people against it. Fuehrerphobia is so dangerous because, unless you actively work to ally yourself with marginalized people and fill yourself with the Fuehrer's love, becoming an anti-Fuehrerphobe, it is inevitable that you will fall into Fuehrerphobic thinking. Most Fuehrerphobes do not even realize that they are Fuehrerphobes and will even deny the charge when accused. This is, of course, the ultimate proof of Fuehrerphobia.      

It would be useless to argue with these kids even if you were not threatened by secret police or with the loss of your job. National democracy honestly contains many noble ideals even as it serves to cover literal Nazism. These kids lack the language even for describing the Nazism that they are being raised with let alone for comprehending how someone might honestly be a Fuehrerphobe without being a hook-nosed villain trying to murder babies to use their blood for crackers. These kids need an alternative language where liberty, freedom, and rights have been restored to their classical liberal meanings. Alternatively, new terms for classical liberal concepts may need to be invented. 

Do You Support LGBTQ+ Rights?

 

I was recently asked by a student if I supported LGBTQ+ rights. I asked them what they meant by rights. It quickly became apparent that this student had not seriously considered what counts as a right and what it might be based upon. In essence, their belief in LGBTQ+ rights was the practical equivalent of being a sports fan. They were not asking me whether I agreed with their beliefs as they had no beliefs for me to agree or disagree with but merely if I cheered for their particular team. Their teachers had taught them that to be a good person, they needed to recite the credo "I support LGBTQ+ rights." For all intents and purposes, the students could recite something in Latin and it would be equally meaningful. To be clear, I do not question the intelligence or decency of this student. The fault is not with them but with the educational malpractice that they have been subjected to.   

What might it mean to support LGBTQ+ rights? One possible response is that LGBTQ+ people should be equal to heterosexual and cisgender people. This has a surface plausibility to it. LGBTQ+ people are human beings with rights who deserve to live with dignity just like everyone else. Now, what might this mean in practice? Consider that people with poor social skills, nose pickers, and MAGA Republicans are all human beings with rights who deserve to live with dignity. This certainly means that they have legal rights. If you are committed to civil liberties then there should be no moral difference between the police beating a confession out of someone with a pride flag or a MAGA flag. This is distinct from any kind of social right. In the real world, people are going to lose out on friendships and jobs for failing to follow all kinds of random social conventions that could never be defended simply on rational grounds. Furthermore, these social failings may be so subtle that neither party can even articulate the rule that has been violated. As someone on the autism spectrum, I am forced to reckon with this fact on a daily basis and pay a heavy price for it. Once we accept that society can penalize nose pickers, the burden of proof falls on anyone who objects to society penalizing anyone for violating a social convention. If people have the right to arbitrarily give nose pickers a look of disgust, they have the equal right to arbitrarily give a person in drag a look of disgust.    

I believe that LGBTQ+ people have the right to negative liberty. This means that the government should not cause physical harm to people it classifies as LGBTQ+. Such people should be able to engage in consensual behavior between adults as they wish whether that is non-heterosexual sex or gender reassignment surgery. As language is an arbitrary social construct, LGBTQ+ people have the right to call themselves married or members of the opposite sex. If they can convince the majority of society to speak their language, all power to them. This would be no different from the advocacy of Esperanto speakers. 

I would not be willing to grant LGBTQ+ people positive liberty but then again I do not believe that anyone has a right to positive liberty. I am willing to accept a legal obligation under the social contract to be drafted and have to mow down, with machine gun fire, a mob of theocrats trying to violently stop a gay orgy from happening. I am not willing to execute Christian bakers who refuse to bake gay wedding cakes. 

In any argument, it is crucial to control the terms used. Once the issue is framed in terms of supporting or opposing LGBTQ+ rights, the LGBTQ+ side is guaranteed to win. My students may not know what rights are but they have been raised to believe that rights, whatever magical black box they might be, are an important good to such extent that your support or opposition to them is what makes you a good or bad person. If we are going to change minds on LGBTQ+ issues, we are first going to have to get them to think seriously about what rights mean.  

D-Day and the Non-Aggression Principle

 

A foundational idea within libertarian thought is the non-aggression principle (NAP). I should not use physical violence against people who have not physically attacked me and have shown no evidence of plotting to do so. People who do not follow my religion or ideology and even commit blasphemy against it are not engaging in violence. As such, as hurtful as I may find their words, I must tolerate these people and cannot attempt to injure them. Libertarians go further with this doctrine and reject the legality of any law that lacks a clear victim of physical violence. For example, you have the right to shoot heroin and sleep with hookers. Such actions may be bad for your physical health as well as your family and the larger society. That being said, since these actions do not initiate physical violence, they should be legal. By contrast, all government action is, by definition, violent as it carries the implied mafia-style threat of either obeying or men with guns will do you extreme bodily harm. As such, any attempt by the government to go after people who have not initiated acts of violence themselves (people other than the likes of thieves, murderers, and invading foreign armies) is inherently illegitimate.

Perhaps the clearest explanation of this concept is Walter Block’s Defending the Undefendable which is premised on the notion that it is better to be a prostitute or a drug dealer than a politician or a policeman. The fact that people are willing to break the law and risk prison in order to use your services demonstrates that people honestly want what you are selling. By contrast, as a public school teacher, I have no reason to assume that my students actually want to be in school. By agreeing to teach, I am, arguably, implicated in a conspiracy to deprive children of their liberty for hours every day in order to justify robbing the public to pay me a salary as I waste my students’ time. At best, I should allow students to play on their phones all day in order to better demonstrate that public schools are useless and should be abolished in order that kids should be allowed to make better use of their time by selling drugs and sex on a street corner.     

I would like to consider a limitation to the NAP. The NAP is premised on a world of individuals. What happens when we have to consider people as groups with narratives of initiated violence and victimhood? Imagine a German soldier sitting in a bunker, minding his own business, on the coast of Normandy, D-Day morning. Our German soldier has personally never initiated violence against anyone. Through no fault of his own, the only job he can find consists of putting on a uniform, carrying a gun, and sitting in this bunker. As this does not violate the NAP, our soldier agreed to do it.

Now our soldier finds that people he has never met are firing shells in his general direction, heedless of the fact that he might get hurt. Our soldier charges the Allied soldiers storming the beach waving a philosophy book and shouting: your actions violate the NAP and are, therefore, unethical. You are initiating violence against someone, mainly me, who has never harmed you. I was not part of the 1940 invasion of France, so it is not my fault that France is under German occupation. Furthermore, you are damaging beachfront property that does not belong to you. As none of you own property on this beachfront, you have no standing to argue that I have less of a right to be walking on this beach than you do. You need to sail back across the English Channel and leave me in peace to do my government job as inefficiently as possible. This will hasten the collapse of Nazi Germany, allowing me to finally do something useful like drug dealing or prostitution.    

Clearly, the German soldier’s position is absurd though I am increasingly frightened to suspect that many members of the Mises Caucus would be willing to agree that it is immoral for Allied soldiers to shoot him. Even though he has personally never harmed anyone, he is part of the larger system of Nazi Germany that has initiated violence against millions of people even as the vast majority of people in the system have not personally harmed anyone. Are we going to claim that the concentration camp guard who never shot anyone is innocent? What about Nazi propagandists like Joseph Goebbels and Julius Streicher?

Once we admit that our German soldier is guilty by virtue of our narrative that he is part of this larger system called Nazi Germany, it is hardly obvious where to draw the line. Imagine if a group of Englishmen were to charge the beaches of Normandy and open fire on the local French residents to retaliate against the Norman invasion of England in 1066, an injustice that the modern residents of Normandy have presumably benefited from in some way. Do students have the right to plant bombs in their teachers' cars in order to defend themselves against "educational violence?” On a serious note, critical race theory activists believe that you can be guilty of "structural violence" by virtue of being white and not actively working to overthrow the American political and economic systems, institutions tainted by racism.

Clearly, narratives are necessary in order to make sense of the world. That being said, once we allow for narrative thinking, we have to recognize how easy it is for anyone to game the system and argue that they are the victim of some historical injustice and that they have the moral right to do bad things to someone by virtue of the fact that the person can be connected as a beneficiary to that injustice. 

LGBTQ+ History Month

 

A local elementary school here in Pasadena placed the following banners in honor of LGBTQ+ month outside its front office. Let us leave aside the question of why it is more important for the school to ensure that elementary school kids are more aware of LGBTQ+ History Month than Filipino-American or Italian-American History Month. What struck my attention was the timeline's claim for 2003: "LGBTQ+ legalized nationwide in the U.S." 

I can only assume that this is supposed to be a reference to the Supreme Court's Lawrence v. Texas decision that struck down anti-sodomy laws. Obviously, this was a critical event in the history of gay rights that set up the Obergefell decision with its right to same-sex marriage. That being said, it is not as if LGBTQ+ people were illegal before 2003. While gay sex has certainly been illegal in many parts of the country, being a gay person was never, in of itself, illegal. As someone who studies Jewish History, the distinction is an important one. The Spanish Inquisition went after people who carried out Jewish actions such as eating cholent on Shabbos. The Nazis, by contrast, killed people for having a Jewish grandparent. 

The timeline's statement only makes sense if we assume that being gay is fundamentally about what kind of sex you engage in to the extent that preventing people from engaging in gay sex stops people, in some sense, from being gay as opposed to "merely" violating the right to privacy of consenting adults. If being gay is really about sex then it has no business being discussed with elementary school kids. Those in the gay rights camp need to get their story straight. 

The really strange thing about this mess of a statement is that Lawrence v. Texas had nothing directly to do with much of the LGBTQ+ alphabet. The decision affected trans people about as much as heterosexuals. Whoever made the timeline was so wielded to the notion that LGBTQ+ represents a coherent group of people that they kept to it even to the point of writing utter nonsense. Here is my proposal to the LGBTQ+ advocates running our schools. If you are planning to groom my kids, pump them with puberty blockers, and castrate them, is it too much to ask that you at least teach them to write about history in coherent sentences?           

Non-Intuitive War Crimes

 

An essential component of Protestant theology is sola scriptura. This is the belief that only the Bible has authority. For this to work, it is necessary to not only accept a Protestant reading of the Bible but also that only the Protestant reading of the Bible makes sense. In essence, a Protestant needs to be perfectly confident that he can drop a suitably translated Bible next to a native Pacific islander and they would be able to reconstruct Protestant theology for themselves. The moment we no longer assume that this is likely, sola scriptura collapses and we are left having to choose which pair of exegetical glasses we are going to use to read the text with. Protestantism may be one possible framework along with a Catholic or a Jewish reading but that will no longer be sola scriptura. 

I see a similar problem with the notion of international war crimes trials. There is a basic problem with charging someone from another country with a war crime mainly that it violates one of the most basic principles of law, ex post facto. For something to be a crime, there has to be a clear law with set penalties that were being violated at the time the crime was committed. Without this, governments can arrest anyone for what they did last week even if it was perfectly legal then.  

The Nazi defendants at Nuremberg were some of the evilest people in all of history and they certainly deserved death. That being said, the Nuremberg trial itself was illegal. The actions of the Nuremberg defendants, including mass murder, were all perfectly legal under German law. By contrast, the crimes, the tribunal, and the very process of the trial were all made up on the fly for the sole purpose of prosecuting the defendants. Considering this, an essential justification of the Nuremberg trial was that the crimes committed were so egregious as to make it obvious to the defendants that what they were doing was a crime. 

Considering this, a war crime cannot just be something that is a war crime. In order to be a war crime, it needs to be obvious that the action is a war crime. The moment we fail to meet that high standard then we lose the moral high ground and are stuck in the morally dubious position of trying to punish people for failing to live up to our morality. 

A war crime can never be obvious because the very act of fighting in a war already violates the most basic of moral taboos, murder. One thinks of the scene in All Quiet on the Western Front where Paul stabs a French soldier who is in a shell crater with him. Paul, stuck in the crater, is forced to listen to the man die. The power of the scene relies on Paul, stuck in the muddy crater and cut off from the fighting around him, coming to the awareness that, because of his actions, a human being is dying next to him and that he will never be able to wash this guilt from himself. Sending people to war means telling young men to murder other young men who simply happen to be wearing the wrong-colored uniform. If they agree to commit cold-blooded murder, they will be hailed as heroes, but if they refuse they will be imprisoned or executed for dereliction of duty.   

If this was our standard for a war crime, war crimes would be obvious and just about every soldier and politician throughout human history would be guilty of committing them. Imagine if Amnesty International were to be contacted for help by a soldier in prison for refusing to fire on uniformed enemy soldiers who refused to surrender. The moment Amnesty took such a case would be the end of war crimes theory as no country could ever accept that their soldiers have a moral right to refuse to fight.  

For a war crime charge not to collapse into reductio ad absurdum, we need to assume that there really is such a thing as legitimate war, where you murder perfectly decent people who have not harmed anybody, and that this can be distinguished from illegitimate warfare which is a crime. I do not want this to sink into moral relativism. Clearly, there can be distinctions made between legitimate and illegitimate warfare. Part of being a citizen is agreeing to murder people in legitimate wars and the government has the right to punish people who wish to renege on this agreement. The problem is whether we can assume that these distinctions between legitimate and illegitimate will be obvious to all reasonable people.

Imagine that I was drafted into a war. I agree to murder someone in an enemy uniform who was not in the act of trying to murder anyone from my side. Perhaps, they were on the toilet and I took them out with a sniper rifle. My commanding officer next tells me to start shelling a kindergarten classroom that enemy soldiers are using for cover. Have I just been ordered to commit a war crime and should I risk going to jail rather than do such a deed? What if the kindergartners are singing a song about how they pledge to kill people in my country? Why is it worse to kill those kids than the soldier who was not threatening my side?

I like to think of myself as an educated person. That being said, I am not any kind of lawyer or war crimes expert. Presumably, my officers will have manuals written by legal professionals employed by my government explaining how the orders they are giving me are not war crimes and, as such, I will face prosecution for failing to carry them out. What grounds would I have to argue against that? At least I know enough history and political theory to give some decent speeches before my military tribunal when I am tried for dereliction of duty. What is an eighteen-year-old fresh out of high school supposed to do besides listen to his government’s lawyers and hope that his side does not lose the war?

There are many areas of law that are allowed to be complicated. For example, I cannot assume that I have correctly filed my taxes simply by relying on my moral intuitions. On the contrary, I need to rely on professionals. Similarly, the precise parameters of the right to kill in self-defense are not intuitive. As a rule of thumb, if you have time to worry that the law might not recognize your right to self-defense in a particular situation that is a sign that you should not kill your attacker. By contrast, for war crimes to be a meaningful charge, it needs to be intuitively obvious. Soldiers cannot be expected to go to war advised by foreign legal experts whether something is really a war crime. The moment a war crime becomes something that you even need an expert for and cannot simply rely on what your "parents might say” then the entire legal edifice of war crimes collapses into the personal morality of foreign lawyers to be used against you if your side loses the war.