Friday, 30 November 2012

I am speaking at this event assuming I can remain sober...

Crystal Head
Here's the blurb (not written by me). Note I am introduced by Ghostbuster Dan Ackroyd - possibly the highlight of my entire career...

Have you heard the world is coming to an end on December 21st? So said the Mayans. Not sure how I feel about these things, but think I might put off Christmas shopping until the 22nd just in case.

On December 5th, hidden beneath St Andrews Church, in a lock 13th century crypt there is a head, shaped from solid quartz that offers it’s bearer spiritual power and enlightenment. Oh wait, it’s filled with vodka – even better!

Crystal Head Vodka, who are clearly fans of a mystery – having named themselves after the 13 crystal heads that were found and polished into shape from solid quartz that are said to offer enlightenment – are hosting a discussion on the Mayan prediction. Dan Aykroyd (the man behind the iconic vodka and more than a few iconic films) will introduce the discussion (via the medium of film); philosopher Dr. Stephen Law and Professor Elizabeth Graham, expert in Mesoamerican archeology, will take to the stand to provide insight into the 2012 prophecy debate, and explore its history and, more importantly, its reality.

Crystal Head’s mixologists will be on hand to guide you through this troubling time with a series of specially-created cocktails and signature serves.

I’ve always said, if the world is really coming to an end, I’d rather it came when I had a drink in my hand.

There are still spaces but like the world, they are soon coming to an end too, RSVP now to

‘End of the World’ Lecture with Crystal Head Vodka | 5th December at 7pm – 10pm |St.Andrews Crypt Holborn, 7 St Andrews Street, EC4A 3AB

I am playing drum kit with Heavy Dexters at the Bully, Oxford Tuesday 11th December

The Heavy Dexters Christmas funk up
Details here.

Thursday, 29 November 2012

Ryan Rodenberg on Putter Ban

Sports Law Blog writer Ryan Rodenberg speaks to USA Today:
"My sense is that players and manufacturers would have a lot of difficulty, as courts generally defer to unilaterally-imposed sports league rules," according to Ryan Rodenberg, assistant professor of sport law at Florida State University.

. . . .

Rodenberg likens this case the "spaghetti-string" tennis case from 30 years ago, Gunter Harz v. USTA.

"The judge in the Gunter Harz district court case (before it got to the court of appeals), ruling in favor of the USTA's ban on spaghetti strung rackets, posited that 'the court is not to substitute its own judgment for the of the ITF or the USTA,' " Rodenberg wrote in an email. 
For more, click here.  For another take in, click here.

Marvin Miller - The Most Significant Figure in Baseball in the Past 50 Years?

Professor Ed Edmonds
The following piece is written by Notre Dame Law School sports law professor Ed Edmonds, one of the best minds around on baseball and the law and founder of the Baseball Salary Arbitration website.

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Marvin Miller - The Most Significant Figure in Baseball in the Past 50 Years?

There have been no shortage of articles this past week honoring the passing of the legendary leader of the MLBPA Marvin Miller at age 95.  Many writers have noted that he was possibly the most significant figure in baseball over the past half-century.  I certain agree that he belongs in any conversation about that topic, and I point to an earlier post on this blog by Howard Wasserman regarding his place in sports law history.  I will not attempt to go through the compilation of Miller’s many accomplishments because so many of you know and teach about this on a regular basis. 

Let me take up one point that comes together with the thoughts of Murray Chass, the long-time writer for the New York Times.  By the way, if you do not regularly read Mr. Chass’s writings on Murray Chass . . . On Baseball, I highly recommend it.  Murray Chass posits that perhaps Miller can now be elected to the National Baseball Hall of Fame because the owners and other management personnel will not be subjected to his acceptance speech or because their hatred for the man who led the players to some freedom over their playing careers and significantly better pay and working conditions would not allow them to vote into the Hall a man who so rightly deserves to be there.  I only need to mention the additional shun shown Miller when the Hall opened its doors to Bowie Kuhn.

How ironic is it that Barry Bonds, Roger Clemens, and Sammy Sosa appear this week for the first time on a Hall of Fame ballot?  We are finally at the point so many have waited for to determine how the voters will actually deal with the steroid era candidates.  There will be a renewed conversation about the integrity of the induction process if Bonds, Clemens, and Sosa are allowed the honor of enshrinement.  My point is a simple one:  If anyone is really concerned about the “integrity” of the membership in the Baseball Hall of Fame, the exclusion of Miller needs to be addressed.  Marvin Miller’s bitterness over his non-election sparked comments from him that he would not have accepted the honor in his final few years.  Perhaps now everyone can agree to do not only the honorable thing, but an honest thing.  To not have a plaque to Marvin Miller in the National Baseball Hall of Fame is a grievous oversight.  Let’s hope that it is remedied soon.

Wednesday, 28 November 2012

Legal implications of the proposed ban on belly putters

I speak with David Dusek of Golf Magazine| about the potential legal fallout of the US Golf Association banning belly putters and whether affected athletes, like Keegan Bradley, and putter manufacturers can sue. My take: any attempt to use the law to beat the ban would probably fail.

Here's an excerpt:

But McCann quickly adds that it's an unpersuasive argument. The USGA and the R&A would argue that they have decisive rule-making authority. They would also contend that it's reasonable for them to alter the rules, and the PGA Tour would argue that it's reasonable to abide by those rules. 

"Courts give leagues a tremendous amount of latitude in rules of play" he says. "It's one thing to say there is a new restriction on free agency and that it's not collectively bargained, or there is a salary cap change; it's another to change the rules of play. Courts are pretty deferential, and I think any type of lawsuit would be unlikely to prevail." 

McCann pointed out, however, that in the early 1990s, a group of golfers led by Bob Gilder joined Ping and won a favorable settlement from the USGA and the PGA Tour after Ping Eye 2 irons were banned. That club's square grooves had been ruled to have a performance-enhancing effect, but the players rebutted that argument by citing data that showed golfers using the club earned less than those who did not use it. The case ended in a settlement that allowed the club but required different grooves in future models. 

That precedent may seem to favor a player inclined to sue, but McCann cautions that the player would have to show statistics that indicated that belly putters were not providing an unfair advantage.

To read the rest, click here.

The ACC Sues Maryland over Exit Fee

The Atlantic Coast Conference filed a lawsuit in North Carolina state court on Tuesday seeking to enforce a $52,266,342 exit fee against the University of Maryland, following the recent news that the school was leaving the league to join the Big 10.  The exit fee represents a sum three times the conference's annual operating budget for the 2012-13 school year, and was approved by the ACC membership in September, with both Maryland and Florida State University voting against the measure.

The Washington Post has obtained a copy of the ACC's complaint, available here.  In the lawsuit, the conference alleges that Maryland president Wallace Loh -- a former dean of the University of Washington Law School -- has "refused to provide assurance" that the school would honor the exit fee.  The complaint also points to statements made by Loh back in September, in which he contended that the ACC's exit fee could be legally unenforceable

Indeed, Maryland can argue that the ACC's fee is an unlawful penalty under traditional contract law principles.  Specifically, courts will generally refuse to enforce liquidated damages provisions (like the ACC's exit fee) when the clause goes beyond simply compensating the non-breaching party for its anticipated financial injury and instead unfair penalizes the breaching party (I have summarized the law regarding the enforceability of liquidated damages provisions in the related context of college football scheduling agreements and coaching contracts in a law review article available here on pages 21-23).

Maryland can thus plausibly argue that the ACC's exit fee -- set to three times the entire conference's annual operating budget -- goes beyond mere compensation and rises to the level of an unlawful penalty.  The school can also point to the fact that the ACC's fee appears to be significantly larger than that imposed by any other conference in the country (the SEC notably has no exit fee).  Meanwhile, expect the ACC to argue that the total damage inflicted on the conference by a defecting university is so significant, and yet hard to precisely calculate, that a $52 million fee is within the realm of being reasonable.

I anticipate that Maryland and the ACC will ultimately settle the case out of court, likely for less than the full amount owed (as Missouri, Texas A&M, Syracuse, and Pitt each did following their recent defections to new conferences).  In fact, I suspect the ACC likely opted to file its suit on Tuesday in a favorable forum in hopes of obtaining some leverage in the ensuing negotiations, thereby preempting a potential suit by Maryland in a local state court.  You may recall that West Virginia University and the Big East conference both filed dueling lawsuits against one another in 2011 after the school announced it was departing for the Big XII, lawsuits that were ultimately settled earlier this year.  On the other hand, it is also possible that the ACC may refuse to settle for anything less than the entire $52 million in order to try to prevent other schools from leaving the league.

Tuesday, 27 November 2012

Others' thoughts on Marvin Miller

I don't have a whole lot to say about the life of Marvin Miller, who died on Tuesday at age 95, other than that Miller might be the most significant figure in sports law; in fact, by introducing true labor law in sports, he arguably invented the field. Ironic, given that he was not a lawyer.

Instead, have a look at this piece by Tim Marchman in Slate, which argues that Miller achieved success by taking incremental steps, waiting for the right moment to attack the big issues (he was union head for almost a decade before the reserve clause fell, although he recognized that as a winning issue immediately), and being fortunate enough to go up against generally incompetent people on the other side of the table.

Monday, 26 November 2012

Majoring in college sports

Last year, I wrote about a proposal by Sally Jenkins of the Washington Post to allow college athletes to major in their sport, building a (hopefully) rigorous curriculum around participation on the team. Now here is David Pargman, an emeritus professor of educational psychology (and a self-described sports fan) making a similar proposal in Monday's Chronicle of Higher Education (H/T: Deadspin). Like Jenkins, Pargman uses performing arts majors as the analogue. He goes one step further and lays out what the last two years of the program would look like, with the first two years spent in basic studies. The advantage of this, Pargman argues, is honesty--students, coaches, family members, and universities all can openly acknowledge exactly why these young men and women (mostly men) are on campus.

As I wrote last time, this is an interesting idea with some potential, but the devil is in the details. Ultimately, my deepest question is whether this solution addresses the real problem facing college athletics. Pargman argues that not forcing student-athletes to pick a major in which they are not interested--when they really want to study their sport and become a professional athlete--is "integral" to a good portion of the other travesties that surround college sports. But is forcing a football player to major in, say, "Leisure Studies" really integral to all the other problems? Or are the real problems that 1) many of these people have no interest in being in college or studying at all, regardless of what classes they can take or what they can declare as a major, and 2) universities and coaches are making boatloads of money because of the skills of these students and the students are not seeing a dime. Honesty in their major does not change that.

Which is not to reject the proposal out of hand. It is just to emphasize that the problems inherent in college sport go much deeper than this.

The Contractual Implications of Auburn Firing Gene Chizik

As many had predicted over the last few weeks, Auburn University announced on Sunday that it was firing head coach Gene Chizik just two years after he led the Tigers to an undefeated season and BCS national championship.  Because the school decided 17 months ago to give Chizik a contract extension through 2015, Auburn is now on the hook for an expensive buyout of its football coaching staff.  Specifically, Chizik is owed a total of $7.5 million -- to be paid in monthly installments of $208,334 for each of the next 36 months -- pursuant to the early termination clause in his contract.  Had he not been fired, Chizik would have received an additional $3 million over the life of his contract.  However, because many of his assistant coaches were also given guaranteed contracts (in some cases running through June 2014), the total cost of the buyout for Auburn will actually exceed $11 million.

Anticipating Chizik's likely termination, the Columbus (GA) Ledger-Enquirer explored Auburn's contractual commitments to its football coaching staff, as well as the general trends in football coaches' buyout provisions nationally, in a story last week.  Here is an excerpt:
A June 2011 release by Win AD stated of the coaches who were dismissed in 2010 or 2011 with buyout clauses written into their contracts, 70 percent of those buyouts were based on their remaining total or base salary.

The other 30 percent were guaranteed a partial take on their full salary -- either a certain amount of money per month or year remaining on the contract, a percentage of the remaining base salary, or one year's total or base salary.
You can check out the full story (including quotes from myself and Rick Karcher) by clicking here.

Saturday, 24 November 2012

Loss of NHL games with Gary Bettman as Commissioner

Updated for NHL's additional cancellation of games on Dec. 10, 2012: As of December 10, the NHL has cancelled 526 of the 1230 regular season games scheduled for the 2012-13 NHL season.  10.1% 9.5% of regular season games under Gary Bettman have been cancelled.  No other commissioner is close and even when they are combined, they aren't close.

Back in October, I tweeted about loss of regular season games by commissioner by percent and in the aggregate.  With the 2012-13 NHL season on the brink (as Nathaniel Grow explained), I figured it might be helpful to see some updated math.

Here are my calculations for NHL commissioner Gary Bettman:

NHL Season    Regular S Games    Games Lost

1992-93             384*                         0
1994-93           1092                          0
1994-95           1092                      468               
1995-96           1066                          0               
1996-97           1066                          0               
1997-98           1066                          0               
1998-99           1107                          0               
1999-00           1148                          0               
2000-01           1230                          0               
2001-02           1230                          0               
2002-03           1230                          0               
2003-04           1230                          0               
2004-05           1230                    1230                   
2005-06           1230                         0               
2006-07           1230                         0               
2007-08           1230                         0               
2008-09           1230                         0               
2009-10           1230                         0               
2010-11           1230                         0               
2011-12           1230                         0               

            Total:               22,781                1698 = 7.4% of games cancelled through 2011-12 season.

2012-13           1230             To 12/10/2012: 526 games cancelled = 9.5% 
                                             If 12-13 season lost: 12.2%

To date, 9.5% of games under Bettman's nearly 20 years as commissioner have been cancelled.  But if this season is cancelled, the number jumps to 12.2% of games.  That's a lot of games lost -- for owners, players and the numerous businesses (souvenir stores, restaurants/bar) dependent on NHL games being played.

Explanatory Notes and Assumptions

  • NHL used 84-game regular season in 92-93, 93-94, and 94-95 seasons; in other seasons, 82-game regular season used. 
  • NHL had 24 franchises in 92-93, 26 franchises from 93-94 to 97-98; 27 franchises in 98-99; 28 franchises in 99-00; and 30 franchises from 00-01 to present.
  • Bettman became commissioner on Feb. 1, 1993.  By that date most of the 92-93 season had been played.  The Boston Bruins, for instance, had played 52 of their 84 regular season games.  Other teams had played about the same, give or take a game.  Assuming the 24 franchises had 32 games left, then Bettman was commissioner for 384 games in the 92-93 season (768 remaining games to be played by teams, divided by two since each game has two teams).
Context and Caveats

  • It's important to stress that loss of games has many explanations, and not just who is the person occupying the commissioner’s job.  Clearly, the wishes of individual franchise owners and their level of unity in bargaining matter.  The willingness and ability of players’ associations to organize players and reasonably compromise with the league also matter.
  • Evaluating a commissioner invites numerous metrics, including growth of revenue and popularity of sport.  Most would say Bettman has done well on those and other fronts, though expansion into southern U.S. states remains a questionable business strategy.

Key Take Away:

While context matters and while blame should be shared with owners and players, it's hard to escape these numbers when compared to other leagues' commissioners: Far more games have been lost under Bettman's watch than have been lost under commissioners of the NFL, NBA and MLB. 

In fact, no games have been lost under Roger Goodell’s leadership (6 years on the job), and just 2% of games have been lost under the leadership of David Stern (28 years on the job) and Bud Selig (20 years on the job). Those commissioners can certainly be criticized for many things, but they have succeeded in ensuring that scheduled games are played.  Games being played is obviously not only a concern for owners and players - the two groups who have the authority to resolve a labor dispute.  It's also one for those who have no formal say at the bargaining table: fans who buy tickets, networks that enter into broadcasting contracts to televise games, and apparel stores and restaurants that enter into business contracts assuming they will generate business from games being played.

If Bettman's games lost percent rises to 12%, it will be a percent of games much higher than all of the other commissioners combined -- and it's already higher as it is.

NHL Decertification Talk Heats Up

Following up on Michael McCann's post from Monday, talk of a potential decertification of the National Hockey League Players' Association (NHLPA) heated up this week.  After the NHL owners rejected a new union proposal on Wednesday, the players have increasingly appeared willing to dissolve their union in order to pursue antitrust litigation against the league (see this report by James Mirtle).  In fact, on Thursday, Buffalo Sabres goalie Ryan Miller publicly endorsed the decertification strategy, in the process calling out the NHL's outside legal counsel, the Proskauer Rose firm, by name. 

Given the increased possibility that NHL players will dissolve their union, several Sports Law Blog contributors have been interviewed in the past few days to discuss the procedural steps involved in a potential decertification of the NHLPA, as well as the strategy's likely impact.  In particular, Gabe Feldman answered some decertification questions for CBC, and Michael McCann discussed the issues with Canadian Business magazine, while I spoke to the Globe and Mail.  Here's a excerpt of my discussion:
Let’s start with the basics. Why might decertification make sense for NHL players here?

A. There’s kind of a benefit and a drawback. There are some protections you get under labour law when you’re in a bargaining situation like this. By having a union, the players under U.S. labour law get protection against the owners committing certain unfair labour practices.

So they get some benefits out of the unionization, but the downside is you can’t then file an antitrust lawsuit against the ownership while you’re still engaged in that collective bargaining relationship.

The trade off is do we want to have union protections or would we rather dissolve the union and pursue antitrust remedies. You can’t have your cake and eat it, too. You have to pick.

From the perspective of why is it a good thing to do now: The main benefit is probably leverage... If we file an antitrust lawsuit, it adds uncertainty for the owners. If this lockout gets declared to be a violation of U.S. antitrust law then the players’ damages are going to be tripled.

I thought I saw one estimate that the players were losing something like $10-million per day. If you use that as a ballpark, if they’ve missed 70 days, you’re talking about $700-million times three; that’s a huge number potentially. There’s leverage for the players.  The No. 1 thing they would shoot for presumably would be to end the lockout [using a preliminary injunction]. Even if they don’t get that, long term, they still have that threat of the antitrust legislation and the triple damages hanging over ownership.

Berkeley's Idealism

(from my book The Great Philosophers)

‘To be is to be perceived.’

Just as younger children sometimes wonder whether the refrigerator light stays on once the door is shut, so the more  philosophically minded older child may question whether  physical objects continue to exist when they are not observed. George Berkeley’s answer to this question is that they do not. According to Berkeley, the physical world exists only while it is being perceived. So what led him to this astonishing conclusion?

Berkeley had two overriding philosophical concerns. The first was to deal with sceptical worries about the material world.  How, can we know that such a world exists? The second was to counter what Berkeley saw as the growing tendency of the scientists  and philosophers of his day to push God to the periphery in their thinking about the world. Scientists were beginning to adopt an increasingly mechanistic view of how the universe worked, with God required, at best, merely to crank the starting handle on the great world-machine, after which his presence was no longer required. Berkeley wanted to bring God back to centre stage.


Let’s begin with the threat of scepticism. According to the representational theory of perception embraced by many of the leading thinkers of Berkeley’s day, we do not perceive the world directly. Rather, our perception of the world is mediated by certain mental entities called ideas.

Suppose, for example, that you look at a tomato on the table in front of you. When you observe the tomato, what you are immediately aware of is not the tomato itself, but certain sensory appearances that parade, as it were, before your mind’s eye. What you experience directly are shifting ideas of shape, colour and so on, sliding across your internal, subjective cinema screen. The tomato itself lies behind these sensory appearances as their cause.

Berkeley’s concern about this representational theory of perception (which heassociates in particular with the philosopher John Locke, although it is debatable whether Locke endorses it) is the difficulty of knowing whether our senses are a reliable guide to external, physical reality. If we never get to experience that reality directly, to check that there is anything out there corresponding to our ideas, what grounds have we for supposing such a reality exists? Rather than mediating perception of physical reality, ideas seem to form an impenetrable veil – a barrier beyond which we can never peek – and so threaten to cut us off from knowledge of the world. Philosophers call this the veil-of-perception problem.

Berkeley’s solution to the veil-of-perception problem is ingenious. Rather than supposing that physical objects lie behind our sensory experiences, why not just suppose that they are those sensory experiences? When you observe a tomato, the tomato is not the cause of your ideas. Rather, it just is those ideas. As there is no particular problem explaining your knowledge of your own ideas, so the sceptical problem generated by the representational theory of perception is immediately solved.

If it isn’t observed, it isn’t there

Of course, while this move might indeed deal with the veil-of perception problem, it has some very odd consequences. For a start, ideas are mental entities. They are subjective in the same way that, say, pains are subjective. Just as there could not be a  pain that no one felt, so there could not be an idea which no one experienced.

It follows then that, if physical objects are just ideas or collections of ideas, they too are mental entities incapable of existing independently of being experienced.

Berkeley’s idealism has the bizarre-sounding consequence that, if no one is experiencing that tomato, there is no tomato. Those portions of the physical that are not observed do not exist. According to Berkeley, for the physical world to be is to be perceived.

The rejection of materialism

Berkeley’s idealism, which simply identifies physical objects with ideas, involves the rejection of the materialist philosophy that says that physical objects are material substances in their own right capable of mind-independent existence. The only genuine substances, according to Berkeley, are mental substances – minds. Berkeley does not deny that physical objects exist, but he maintains that they are not anything over and above the ideas entertained by minds. There are no material substances, only mental substances.

The role of God

Berkeley’s idealism may deal with a sceptical worry generated by the representative theory of perception, but what of Berkeley’s other concern – to bring God back centre stage? How does Berkeley’s idealism achieve that?

Actually, Berkeley does not deny that physical objects continue to exist when we are not perceiving them – that tomato remains on the table even while none of us observes it; your kitchen continues to exist even after you have turned off the light and gone to bed. Why? Because God constantly observes everything. And so, while the materialist philosophers of the day were finding less and less use for God in their thinking about the physical universe, Berkeley gives God a central, universe-sustaining role. The universe is kept in existence, while we do not observe it, by God’s constant gaze.

Why the tree continues to be…

The role that Berkeley’s Idealism assigns to God is nicely summarized in a limerick penned (at least in part) by Monsignor Ronald Knox:

There was a young man who said, ‘God
Must think it exceedingly odd
If he finds that this tree
Continues to be
When there's no one about in the Quad.’


Dear Sir:
Your astonishment's odd:
I am always about in the Quad.
And that's why the tree
Will continue to be,
Since observed by
Yours faithfully,

Berkeley’s master argument

We have outlined Berkeley’s extraordinary theory, but why should we accept it? What grounds do we have for supposing that it is true? In particular, why should we accept that physical objects cannot exist unperceived?

Berkeley offers a number of arguments for this conclusion, but one in particularstands out. So confident is Berkeley in this particular argument that he is prepared to let everything rest on it. It is, for this reason, often referred to as Berkeley’s master

Berkeley simply challenges us to try to conceive of a physical object that exists unperceived. Try, for example, to imagine a tree that continues to exist though no one observes it. Can you do this?

No, says Berkeley. You can’t. For in imagining the tree, you still imagine yourself perceiving it. You imagine yourself looking at it.

Berkeley concedes that while it might seem as if we can entertain the thought that there is a world of unperceived and unconsidered physical objects, it turns out, on closer inspection, that we can’t.


Is Berkeley’s master argument cogent? An initial worry we might raise is that it appears to take for granted a rather imagistic view of thought. It seems that, in Berkeley’s view, to think about something is to entertain some sort of mental image or other sensory representation of it. When I think of a tree, I conjure up a mental image of a tree, but then I do, after all, imagine myself looking at it.

However, is this way of thinking about thinking correct? Not obviously. Clearly, I can conjure up a mental image of a tree.

However, must entertaining the thought that there exists an unperceived tree involve any such an image?

It seems not. Suppose you ask me to visualize a tree. I do so. If you then ask me to describe my visualized tree, I will be able to do so. For in visualizing a tree, I inevitably imagine it having various features that I can then go on to tell you about. For example, my tree may be deciduous or coniferous, rounded or tall, with leaves or without.

If, on the other hand, you ask me simply to suppose there is a tree that exists unperceived, and then ask me to describe it, it may well turn out that I don’t have in mind any particular sort of tree at all. The tree in question need be neither deciduous
nor coniferous, neither short nor tall, neither with leaves nor without.

This rather tells against the assumption that thinking of something involves conjuring up a mental image of it. But, if we can think of something without thinking of ourselves as perceiving it in some way, doesn’t Berkeley’s argument therefore

Perhaps not. The reply to this objection may be that, even if you can suppose there exists an unperceived tree, you certainly can’t suppose that there exists one that no one thinks about. Any tree you think of will inevitably be a tree that someone is
thinking about – namely, you.

In other words, to suppose that you can conceive of a tree no one conceives of involves, as Berkeley himself points out, a contradiction – the tree in question would have to be both conceived and unconceived, both thought of and not thought  of – which is an impossibility.

So perhaps Berkeley can at least show that you are unable to entertain the thought that there exists a tree that exists unconsidered by anyone.


Unfortunately, the above argument is also fallacious. We can and should distinguish between conceiving of a particular so and so, and conceiving that there is a so and so. I can, for example, conceive that there was a US president who wore purple underpants without conceiving of any particular US president (e.g. Lincoln or Reagan) wearing purple underpants. There need be no particular person of whom I am thinking when I suppose that there is such a person.

Armed with this distinction, we can now see why Berkeley’s argument fails. To suppose we can conceive of something of which no one conceives involves a contradiction. But there is no such contradiction involved in supposing we can conceive that there is something of which no one conceives. For that is not yet
to conceive of anything at all.

So Berkeley’s conclusion doesn’t follow. Berkeley has not shown we can’t think that there exist things not thought of by any mind.

Illusions and hallucinations

Berkeley’s idealism faces a famous difficulty: how to account for hallucinations and other perceptual illusions.

Suppose that, while ill and delirious, I begin to hallucinate pink elephants dancing round my lampshade. Now the way in which we would ordinarily explain this discrepancy between how things look and how things really are is by saying that the
elephants exist only in my mind. There is nothing corresponding to my experience in external, physical reality.

This explanation, of course, is unavailable to Berkeley precisely because he rejects the suggestion that there is any such external reality. In fact, given that Berkeley simply identifies physical objects with ideas in the mind, and given that I am
currently having particularly vivid ideas of pink elephants, it would seem to follow that my pink elephants are real physical objects.

Clearly, this won’t do. How, then, does Berkeley distinguish between illusion and reality? How can he allow that my pink elephants are not real physical objects?

He says that not all ideas are of things that are real. Our ideas of real things, suggests Berkeley, are far more vivid than those ideas we conjure up with our imaginations. Berkeley also maintains that our ideas of real things are also ideas over which we have no voluntary control being put into our minds by God. The imagination, by contrast, is free to conjure up whatever it likes.

These suggestions do not go quite far enough in accounting for all perceptual errors, however. After all, nightmares can be very vivid indeed – so vivid we mistake them for reality. And they are terrifying precisely because they are beyond our

So how else might the real and the merely illusory differ? Berkeley adds that our ideas of real things have a constancy and regularity to them – indeed, they appear to be governed by laws (such as the laws of gravity). Illusions and hallucinations, on
the other hand, fail to fit in with our other experiences in a coherent way. When I hallucinate pink elephants cavorting around my lampshade, these experiences stand out like a sore thumb so far as the texture of the rest of my experience is concerned.
Here, suggests Berkeley, lies a further difference between those things that are real and those that are merely illusory.

Here, too, Berkeley’s explanation of the difference between illusion and reality seems inadequate. Surely someone might have a vivid but unremarkable dream that fits into the rest of their experience in just the way Berkeley describes. They might dream that they got up in the night for a glass of water, for example, when in reality they remained in bed. Berkeley has a hard time accounting for the possibility of this sort of

Few philosophers nowadays are idealists. Still, while almost every contemporary philosopher rejects Berkeley’s conclusions, they acknowledge that many of the points Berkeley makes in attempting to justify those conclusions are both insightful and thought provoking.

Thursday, 22 November 2012

Israel, Palestine and Terror


Jerry Cohen's chapter from my book Israel, Palestine and Terror is available on-line here. I think it's one of the strongest pieces in the book. My own contribution (three thousand words) is pasted in below.

Terror in Palestine: A Non-Violent Alternative?

Stephen Law

In this volume, the philosophers Ted Honderich and Tomis Kapitan argue that Palestinians have a moral right to use terrorism. Honderich’s and Kapitan’s arguments differ. For example, Honderich’s is rooted in his Principle of Humanity, while Kapitan develops a justification within something like the framework of ‘just war theory’. Nevertheless, both arguments conclude that Palestinian terrorism has been justified in at least some instances. And both rest on a key premise: that the Palestinians have had available to them no viable alternative to the use of terrorism. Honderich writes:

that the Palestinians' only means to a viable state has been and may still be terrorism is something about which I myself have no doubt. Evidently it is a factual proposition in need of support. There is enough in the history of Palestine and Israel to lead me to think that the disinterested people who say the Palestinians had and have an alternative to terrorism are less moved by history and fact than by abhorrence for terrorism. The feeling cannot settle the question (Honderich 2008, xx).

Kapitan argues that non-violent methods are unlikely to end the existential threat he believes the Palestinian community faces. He says,

[t]he Palestinians have repeatedly used techniques of non-violence in combating the Israeli occupation… and have sought and received the help of like-minded Israelis, but to no avail. (Kapitan 2008, xx)

Here I raise a question mark over this denial that there is an effective, non-violent alternative to terror open to the Palestinian people.

What is non-violent resistance?

Most non-violent resistance falls under one of three broad headings:

Acts of protest and persuasion. These include vigils, public meetings, marches and demonstrations. Protesters may wear badges, put up posters, place flowers in guns.

Non-cooperation. Citizens may refuse to cooperate socially, politically and economically. They may boycott sporting events, refuse to pay taxes or carry identity cards. They may refuse to work, or, if they are in the armed forces, to fight.

No-violent intervention. This includes actions designed to frustrate the activities and institutions deemed to be unjust. They include sit-ins, occupations and blockades.

These are just a few illustrations. There is a huge range of non-violent techniques protestors can apply. For those interested, Gene Sharp, an academic and leading advocate of non-violence, has listed one hundred and ninety-eight non-violent techniques. (The list is available at

How does no-violent resistance work? There are two main mechanisms. First, non-violent resistance can frustrate the activities and institutions of the oppressor, making it difficult or even impossible for that oppression to continue.

Some proponents of non-violence, such as Sharp (1980), take as their starting point the idea that the political power of a state is derived from its subjects. If a people refuse to obey, its leaders are rendered powerless.

Certainly, massive, non-violent action can make a people ungovernable. When an incredulous British Brigadier asked Gandhi whether he expected the British simply to ‘walk out’ of India, Gandhi replied,

In the end, you will walk out. For you will come to realize that 100,000 British cannot control 500 million Indians if they choose not to obey.

There was, indeed, an inevitability about the success of India’s non-violent struggle. However, when those engaged in non-violent resistance form a less overwhelming majority, success is no longer guaranteed.

A second way in which non-violence can be effective is by changing attitudes. It can raise awareness and highlight injustice. It can also harness the power of shame.

Even when non-violent protest fails to shift the views of the oppressor, it may still succeed in persuading a wider audience that the protestor’s cause is just and that it should be supported. As a result of non-violent action by an oppressed people, international pressure may be brought to bear on their behalf.

Non-violence can work

Non-violence can work. We know that Gandhi and his followers succeeded in releasing India from the grip of the British by wholly non-violent means, and that Martin Luther King’s advocacy of non-violent protest was pivotal in establishing greater justice for black people in the U.S. Non-violence has been used with effect around the world, including in the former Eastern Bloc, in South Africa, and in the Philippines, where ‘people power’ toppled the Marcos dictatorship.

Indeed, proponents of non-violence suggest the world has been shaped far more by non-violent action than most of us imagine. The non-violence proponent Walter Wink claims that

In 1989, thirteen nations comprising 1,695,000,000 people experienced nonviolent revolutions that succeeded beyond anyone's wildest expectations ... If we add all the countries touched by major nonviolent actions in our century (the Philippines, South Africa ... the independence movement in India ...) the figure reaches 3,337,400,000, a staggering 65% of humanity! All this in the teeth of the assertion, endlessly repeated, that nonviolence doesn't work in the 'real' world.

Still, even if Wink is correct about the impressive track record of non-violent methods, there’s little doubt that such techniques can and do fail. The non-violent resistance of the Tibetans to Chinese occupation was met with devastating brutality, as were the non-violent protests in Tiananmen Square.

Factors impacting on the effectiveness of non-violent action

Common sense suggests factors likely to enhance the effectiveness of non-violent action include the following:

(1) Commitment on a massive scale. Where non-violent techniques are applied sporadically and half-heartedly, they are unlikely to succeed.
(2) A clearly stated aim. Widespread nonviolence is less likely to achieve an aim if that aim is amorphous. Actions that merely give protestors an opportunity to express their displeasure at the current situation are less likely to be effective than those that state, consistently and unambiguously, a desired alternative.
(3) Organization, strategy and leadership. Non-violent action undertaken on a massive scale may be more effective if governed by a consistent, overarching strategy to which all are committed. In addition, a charismatic and inspiring figurehead can be a great asset to such a movement, particularly after it has inevitably experienced some initial frustration, when doubts about the non-violent strategy may otherwise begin to set in.
(4) A publicly avowed commitment to pursue exclusively non-violent methods. In the absence of such a commitment, the absence of violence may be viewed by the oppressor, and any wider audience, as a largely accidental, and perhaps temporary, feature of the struggle. An explicit, principled commitment to wholly non-violent means is likely to enhance the moral authority of protestors.

Gandhi’s and Martin Luther King’s movements strongly checked all four of these boxes.

Non-violence in the first intifada

Kapitan and Honderich maintain that the Palestinians have tried non-violent techniques and that they have largely failed.

Non-violence has certainly been tried. The first intifida began in 1987 as a spontaneous, grass roots uprising. It was triggered by an incident in which an Israeli trailer crashed into two Palestinian vans, killing four and injuring ten. There was suspicion among Palestinians that, far from being an accident, this was a deliberate, vengeful attack. At the funeral, hundreds demonstrated. Israeli soldiers shot another Palestinian youth dead. The intifada developed momentum, becoming a massive, popular uprising lasting until 1993. The first intifada was largely characterized by protest and civil disobedience, though there was some violence too (much of it non-lethal, e.g. throwing stones at tanks). Here I pick out three noteworthy episodes relating to non-violent action (my main source here is Holmes 1995).


Mubarrak Awad, a Christian Arab, born in Palestine and educated in the U.S., founded the Palestinian Centre for Non-Violence in Jerusalem in 1985. Awad advocated non-violent civil disobedience. His methods were embraced and recommended by the intifada leadership that emerged. Even before the intifada, the Israeli authorities perceived Awad to be a threat to their control of the occupied territories. As Holmes notes,

The Christian Science Monitor reported on 24 November 1987 that ‘Many Israelis concede that a Gandhi-style campaign by Palestinians in the occupied territories would have a devastating effect on Israel’s ability to control those areas.’ It quoted one Israeli as saying, ‘If the Palestinians all start doing what Awad proposes, the occupation will crumble in three days.’(Holmes 1995, 212-3)

Awad himself writes (with Kuttab):

The Israelis know how to fight against an armed antagonist, but have no understanding of how to deal with non-violent resistance. They expect, and need, the Palestinians to be either submissive or violent. A non-violent approach would neutralize much of Israel’s military might. (Kuttab and Awad)

After the beginning of the intifada, Israeli efforts to remove Awad intensified and he was deported in 1988.

Beit Sahour

The town of Beit Sahour, a small, largely Christian town of about 12,000, became an early symbol of early, non-violent resistance to the occupation. It began to organize itself so as to be less reliant on Israel. An agricultural committee was created and every home developed its own vegetable garden. As Holmes notes, (1995, 213) Jud Issac, a professor and former chairman of the biology department at Bethlehem University, was jailed without charge for five months for encouraging the planting of the gardens. These ‘intifada gardens’, and the boycotting of Israeli produce, was followed by the refusal of many inhabitants to pay taxes (intifada leaders had insisted ‘no taxation without representation’). The Israeli military imposed a curfew on the town, blocked food shipments, cut telephone lines and eventually seized property from 350 inhabitants to auction off in Tel Aviv. The inhabitants still refused to pay their taxes. The Israeli blockade was lifted after six weeks, shortly before 120 members of The American Friends of Beit Sahour were scheduled to arrive to show their solidarity. In 1990, the town was awarded the annual Danish Peace Foundation prize for its commitment to non-violent methods of resistance

The ship of return

In 1988 the Palestine Liberation Organization (PLO) organized a ‘ship of return’. A vessel was purchased to take 130 Palestinian leaders expelled by Israel, along with journalists, peace activists, jurists and politicians, from Cyprus to Israel. The ship never left Cyprus. It was mined while still in harbour. The three Palestinians who had organized this non-violent action were assassinated. While Israel denied responsibility, its transport minister warned that, were another ‘ship of return’ organized, it would meet the same fate.

Further examples

Palestinians, and supporters of the Palestinian people, have engaged, and continue to engage, in non-violent resistance on a daily basis. A few more examples will give a flavour.

Palestinians adopted, and operated in accordance with, their own time zone, one hour different from Israel’s. Palestinians reported that Israeli soldiers would ask them the time, and, if Palestinian time was given, would then smash the Palestinians’ watches.

Activists in the Grassroots International protection for the Palestinians People (GIPP) have, at their own expense, made visits to the occupied territories, planting olive trees, attending lectures and demonstrating. In Ramallah, an entirely peaceful demonstration involving thousands of Palestinians and 400 foreign GIPP delegates was fired on with tear gas, sound bombs, and rubber-coated steel bullets.

Other foreign activists have received still rougher treatment. In 2003, 23 year old Rachel Corrie, a volunteer with the International Solidarity Movement, was run over by an Israeli soldier and his commander in a nine ton Caterpillar bulldozer while she stood - unarmed, and highly visible in an orange fluorescent jacket - protecting the home of a Palestinian physician slated for demolition by the Israeli army.

We should remember, too, that the Palestinians have also received support from Jews both in and outside of Israel. After the beginning of the first intifada, thirty Israeli-based organizations protested against the violent repression of the uprising. There were public rallies and acts of civil disobedience by Jews in Israel. By June 1988 more than 500 Israeli military reservists had signed a petition refusing to serve in the occupied territories.

Given that non-violent action has always been part and parcel of Palestinian resistance, given this non-violent resistance has often been dealt with brutally (as illustrated above), and given that no viable Palestinian state has been forthcoming, are we justified in concluding that non-violent methods are unlikely to achieve that aim?

Some reasons why non-violence may have failed, but might still work

I’m not sure we are justified. After all, both Honderich and Kapitan believe violent methods – including terrorism – may well work. Yet violence has also repeatedly been tried, with little success (I don’t deny that, like non-violence, it has had some limited success). Given the rather poor track record of both violent and non-violent methods, why conclude that while non-violence is unlikely to work, violence probably will?

In fact, given what has already been said regarding the effectiveness of non-violent action, there are a number of possible explanations available for why non-violence has not worked up till now, but might yet work in future. Here are a few.

1. Violence

First, while Palestinians have engaged in a great deal of non-violent action, it has always been accompanied by violence. During the first intifada, while 1100 Palestinians were killed by Israeli soldiers, 160 Israelis also died. Violence and sensational images of violence are typically of far more interest to news media than is non-violence. For this and other reasons, Palestinian violence has succeeded in largely obliterating from the minds of Americans – a key audience – any awareness of the non-violent action that has taken place. In the minds of many U.S. citizens, the word ‘intifada’ conjures up an image of a masked youth wielding a slingshot or Molotov cocktail, or more recently, wearing an explosive vest. Palestinian violence also allows Israel to view itself, and present itself to the outside world, as the victim, not the oppressor. As a result, Palestinian violence has neutralized much of the effectiveness of their non-violent action.

2. Lack of a consistent, clearly-stated aim

Second, Palestinian non-violent action has not been accompanied by an agreed, clear, consistently-stated aim or strategy. What, exactly, do the Palestinian people want? A state, yes. But on what territory, precisely? And under what conditions? In the absence of a clear and consistent answer, the answer ‘The destruction of the state of Israel’ is likely to be supplied for them (by both Arabs and Jews). At which point their cause is doomed.

3. Lack of organization and strategy

Third, while organizational structures have emerged, non-violent resistance is not nearly as well-organized as it might be. Awad and Kuttab believe that the lack of organization is at least in part down to a lack of sufficient commitment to non-violence on the Palestinian side:

There continues to be great interest in non-violence. What is lacking is an overall strategy and commitment to do it on a massive scale (Kuttab and Awad)

Moreover, those key, well-respected and charismatic Palestinian figureheads – the Palestinian Gandhis, if you like – who might have kept Palestinians on the non-violent path have been removed. Stephan writes that by 1990, Palestinian commitment to non-violent resistance was crumbling. Why? Because

Israel’s policy of arresting, detaining, and deporting… moderate Palestinian leaders effectively removed those Palestinians whose presence and leadership were needed to maintain nonviolent discipline. (Stephan 2006, 69)

4. Lack of explicit commitment to non-violence

Fourth, Palestinians have rarely explicitly committed themselves to non-violent methods. As a result, to the extent that it is even noticed at all, non-violence is widely perceived to be a merely accidental feature of their resistance. This has further eroded its effectiveness.

So yes, non-violent action has not proved particularly effective in Palestine. But there are several plausible explanations why. Were a different approach adopted – an approach combining a total absence of violence, a massive, well-organized commitment to non-violent action, an explicit renunciation of violence, and a clear, consistently stated aim – it might, perhaps, prove more effective.


Let’s now return to the question: is there, and has there been, a non-violent alternative open to the Palestinians? I am not entirely confident I know the answer. I am fairly confident, however, that an affirmative answer has not yet been ruled out. It seems to me that, at the very least, one premise of Honderich’s and Kapitan’s arguments – that non-violent methods cannot, or are unlikely to, work here – requires more support (certainly, more support than they provide in their contributions to this volume).

But, to be fair to Honderich and Kapitan, perhaps we need to distinguish two questions. Here’s the first. If the Palestinian people were, collectively, to engage in such non-violent action, would they succeed?

I suspect the answer to this question is – quite possibly.

But a second question is also relevant. Perhaps Honderich and Kapitan might concede that such a wholly non-violent movement could well be effective, yet still consistently argue that the individual Palestinian may yet be justified in resorting to violence and terror.

Here’s that second question. How likely is it, now, that any such wholly non-violent mass movement could actually form, given the ever-worsening political situation, the growing levels of hatred, fear and distrust among Palestinians, the manner in which their non-violent protest has been received in the past, and so on?

Suppose the answer to this question is: very unlikely indeed. While such a mass-action might succeed, it’s utterly unrealistic to expect it ever to happen.

The suggestion, then, might be this: that an individual Palestinian might justifiably conclude that, given that the Palestinian people are collectively now highly unlikely ever to engage in such action, they, as an individual, are morally within their rights to join the ranks of the violent, violence now being the only viable and effective alternative.

The upshot of such an argument might even be the seemingly paradoxical conclusion that while the Palestinian people are not collectively justified in resorting to violence or even terror (there being a viable alternative open to them collectively), they are individually.

Whether this suggestion might be developed and made to work is not a question I’ll pursue here (though I very much have my doubts).


Holmes, R. (1995) ‘Non-Violence and the Intifada’. In Bove, L. and Kaplan L. (eds.) From The Eye of The Storm. Amsterdam – Atlanta: Rodopi. 209-222.

Honderich, T. (2008), ‘Terrorisms in Palestine’. This volume.

Kapitan, T. (2008), ‘Terror’. This volume.

Kuttab, J. and Awad, M. (undated) ‘Non-violent Resistance in Palestine: Pursuing Alternative Strategies’. Available at

Sharp, G. (1980), Politics of Non-violent Action. Boston, Mass.: P. Sargent.

Stephan, M. (2006), ‘Fighting for Statehood: The Role of Civilian-Based Resistance in the East Timorese, Palestinian, and Kosovo Albanian Self-Determination Movements’. Forum vol 30:2. 57-79. Available at PDF/Fletcher_Forum_MStephan.pdf.