Purposivism and Road Rules: Free-Wheeling in Statutory Interpretation

     Patience is something you admire in the driver behind you, and scorn in the one ahead. 

 Mac McCleary

Part One – Motoring

Some readers may recall the slogan of a recent road safety campaign in New South Wales – Safe speeding: There is no such thing.

It is one of those irritating platitudes favoured in public safety campaigns that are either demonstrably false or boringly true; which it might be turning only on what is meant in this case by the term, speeding.

If by ‘speeding’ it is meant, driving at an unsafe speed, then the slogan is an extremely uninformative analytic truth, like all bachelors are unmarried men, or all grandmothers are mothers. If on the other hand by ‘speeding’ it is meant, driving at an unlawful speed, then the statement is clearly untrue.

It is just as obvious that the road authorities and police in NSW do mean it in the latter sense, and are thus propagating a blatant falsehood in a vain effort to constrain the behaviour of otherwise autonomous adults when in control of motor vehicles on public roads.

Why do I say the slogan is obviously false? Because almost everyone who drives exceeds the speed limits, indeed almost all of the time they are capable of doing so when on the road. The scale of law-breaking on most public roads is near universal and really only varies in frequency and as a matter of degree*.

Yet, in Australia at least, road accidents and fatalities as a proportion of vehicles on the road and distances travelled have plummeted in recent years.  Annual road deaths in Australia have fallen from a peak of about 3,800 in 1970 to approximately 1,600 in 2012. Over that period, road travel is reported to have increased by almost 150 per cent.

Now, there are many explanations for this dramatic drop – better cars, better secondary safety equipment, better roads, and better driver training – but none of the answers is reduced speed on the roads. Except outside schools when children are about, when passing fixed speed cameras, or in very heavily built-up areas (where the average speed is less than 30km/h), it is quite to the contrary.

Most of us drive more and faster when we can, with fewer and fewer accidents.

Ergo, the road safety claim is anodyne tripe: it manages to be both boring and false. So, what would some true statements about road safety and driving speed look like? Something like these:

·     Other things being equal, exceeding the speed limit increases the risk of traffic accidents

·     Speed is a factor in increasing the risk of collisions, and is exponentially related to their seriousness

·     You should reduce your speed when important variables – road or weather conditions, roadworthiness of the car, or driver affect – either limit the ability to avoid accidents or increase their likelihood; and

·     Exceeding the speed limit increases your risk of incurring expensive fines or other penalties.

As almost all drivers in Australia will know, only the last two of these four feature in road safety advertising. The first two true statements are far too insipid to be employed as slogans. Much easier to rely on risible nonsense like, there is no such thing as safe speeding.

This observation shines a small light on one example of the sort of behaviour we higher order primates engage in when confronted with complex risk matrix calculations: the law is just one part of the risk profile, and its enforcement just one other part.

It is important not to interpret this argument as a lassaiz faire or anarchic approach: the greater part of any risk calculation is the degree of probability of a serious injury or cost being incurred, and the relative scale of that cost or injury to ourselves, to those close to us, and (depending on our degree of altruism) to the wider community. As a rule, in our calculations legal implications come third after first, pain and injury, and next, financial considerations, all set off against actual or perceived benefits.

In fact, the exception is to find someone who calculates that driving at the speed limit or lower is the best option. These public nuisances are I suspect often unwitting literalists in statutory interpretation – timid, unimaginative little people who cannot conceive of exercising sufficient independent thought to override the dictates of authority and sense the point and purpose behind the law; even when there is a queue of cars behind them on a single lane, double-lined road.

As a matter of policy, these obdurate and self-absorbed tossers need to learn a lesson about not interfering unnecessarily in other people’s busy lives; whatever the road rules might be.

*   For concurrence with my view from motoring writer Toby Hagon, see: http://smh.drive.com.au/motor-news/why-every-driver-has-broken-the-speed-limit-20120204-1qygs.html

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Get a bicycle. You will not regret it if you live.

Mark Twain

Part Two – Cycling

When I say ‘calculations of risk’ I do not mean that this is a formal and explicit process made with each decision. We are constantly, implicitly and often barely consciously revising our risk assessments when driving cars. Just as we do in many other kinds of kinaesthetic endeavours – like cycling.

The remarkable thing about cycling in Sydney – reputedly one of the least bike-friendly cities in the world – is how little conflict, aggression and danger one actually experiences. Just imagine the number of cars, trucks, motorcycles, buses and pedestrians (not to mention wheelchairs, prams, skateboards and more) that traverse a rider’s path in an average two-hour ride: thousands.

Even in urban and suburban Sydney – with its hilly, twisting, poorly surfaced roads and intermittent bikepaths-to-nowhere – one can ride forty or fifty kilometres in that time.  And yet in a typical ride one might encounter the threat of only one or two life-ending accidents, and be confronted by perhaps another one or two seriously hostile fuckwits in charge of a motor vehicle.

Not at all bad a ratio, I reckon. Less than a thousand to one chance of a violent end each time you go for a ride. So, despite the anti-cycling campaigns in the tabloid media, maybe it is we cyclists – and not pedestrians and motorists – who are the real whingers in the road-use debate…But no.

Why? Because, in strictness, there is no such thing as a cyclist, any more than there is a shopper, a pedestrian, a motorist or a passenger. Just as one may figuratively be born to shop, you may love your car madly, enthuse over walking or prefer the place of passenger on a bus or train or plane. But none of this turns your identity into one of the above, in any philosophically meaningful sense of the word, identity.

This is because cyclist, passenger, pedestrian, motorist and shopper, and a host of terms with similar linguistic roles, are situational or functional predicates.

The statement, Ruth is a shopper, tells us what about Ruth? Only that she shops. But so does just about everyone on the planet, save for the pathologically shy, or those so poor they have nothing to shop with, or those sufficiently rich and indolent to have someone do it for them.

Saying Ruth is a shopper tells us little more about Ruth than saying she is a walker. Almost all of us walk to varying degrees. This just goes with being a bi-pedal hominid. Here in NSW there is a lobby group called the Pedestrian Council. There is also the NRMA – the National Roads and Motorists Association – and Bicycle NSW, which represents the interests of cyclists.

But hold on – didn’t I just say that there is no such thing as pedestrians, motorists and cyclists? So who do they represent? Simply, people in their capacity of doing certain things, that’s who. All of whom have rights to the use of public space and who all (or many) whinge when others, as individuals or as groups, do things in the public space they don’t appreciate. Like beat them through heavy traffic.

This is amply evidenced in a recent Sydney Morning Herald article concerning hostility shown to cyclists on Sydney roads^#.  Just in case you were thinking this was an issue of concern restricted principally to Australia, let me introduce you to the views of the esteemed British actor, Nigel Havers, writing in the UK’s Mail Online on 13 June 2006:

Cycling used to be a genteel, reassuring activity. One thinks of Cambridge undergraduates languidly journeying through the narrow streets of the town with their scarves flapping in the wind, or modest delivery boys from the local grocery store pedalling away on their errands.

But today's pedal-pushers seem to be of a very different stamp – gentility and modesty have been replaced by aggression and arrogance. Brimming with hostility, utterly indifferent to those around them, they appear to think they are above the law.

Normal rules about red lights, pavements and one-way streets are treated as a matter of supreme indifference by this new army of Lycra-clad maniacs, whose every action demonstrates their contempt for pedestrians and motorists.

I am not against cycling per se. In fact, I used to cycle myself and still possess a bicycle. But I always made sure that I obeyed the rules of the road.

Oh dear, next he’ll be telling us he used to be a lefty until he got mugged by an immigrant; and now, while he has nothing against other races, he just wishes they would all go back to their own country.

But I digress – back to Nigel:

Just as they pay no tax, but use the roads freely, so cyclists are subject to absolutely no parking restrictions. They feel they have the right to chain up their wheels anywhere, to the railings of private property or even a parking meter, and could not care less if they obstruct pedestrians or annoy the property owner.

Bicycles are allowed to clog up the streets, pavements, pathways, even the entrances to homes. Why do we have show such tolerance to those who infringe the law?

When a cyclist bangs on the roof of my car or scrapes my mirror without even bothering to apologise, I sometimes wish for the good old days of Edwardian England, when young men would be sent to jail for swearing in the streets, causing a danger to the public or cycling without a light.

Out of his own mouth is he damned.

You see, as noted above, just about everyone breaks the law. Motorists certainly do. And so do pedestrians. So, no doubt, do shoppers and passengers and, well, whomever.

We all infract rules. Short of murder, rape, assault, robbery, destruction, swindling et al, your reaction to rule breakers just tells us which group or activity you are not a part of or which you do not support.

Who are the sorts of people who do not approve of cycling? Fat, lazy, peevish people on the whole, that’s who. People like novelist Howard Jacobson.

The Quickrelease TV website in September 2008 reported that Jacobsen, ‘a saggy-bottomed fellow if his hatred of healthy exercise is anything to go by’, opined at the Sunday Independent that cycling was one of those Olympic sports which had no use in the real world, yet then went on to complain about the legions of London cyclists who plague him:

Cycling is worse than futile, it is malevolent. Not a day goes by, unless I cower in my house and lock all the doors, when I am not put in danger by cyclists – whether it’s cyclists riding the pavement, jumping the lights, weaving between pedestrians and traffic, overtaking on the inside, chaining their bikes where they are bound to cause obstruction, abusing and on occasions threatening me for pointing out any of these infractions to them…blah, blah, blah, blah.

You get the picture.  But hold on, Howard hasn’t finished yet:

For holier-than-thou smugness, only a mother breastfeeding in a public space beats a cyclist. Both have been licensed by our society to believe they are forces for beneficence – true children of nature in a naughty mechanistic world – whereas the one only makes the planet more dangerous and the other only contributes to its overpopulation.

Olympic sports must have a use in the real world? Like discus? Only breastfeeding mothers are worse than cyclists? Why do people like Jacobson do it? Why can’t they help themselves in revealing their own deeply pathetic motivations?

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When I see an adult on a bicycle, I do not despair for the future of the human race. 

H.G. Wells

If, like me, you are a Purposivist in statutory interpretation, you understand that the current road rules are made principally for people as motorists and pedestrians. Despite the recent installation of traffic lights in bike lanes (usually at the bottom of steep hills), cycling, despite its venerable lineage, is not typically uppermost in the minds of legislators.

The growth in cycling as a pleasurable and health-giving activity in recent years has exposed the inadequacy of most current laws to reflect and accommodate their use in public places. Thus, those of us who cycle look at the underlying purpose of the law and decide, quite rightly, that the rule saying ‘do not proceed against a red traffic light’ is designed to stop cars hitting each other or pedestrians.

Cyclists, being on the whole clever and alert people, calculate that it is sensible and shrewd to beat the traffic and get up to speed by crossing the intersection before the flotilla of cars, trucks and buses sets off in the same direction. Disapproval of this is just cycling envy.

Pedestrians know this too, and look out for motor vehicles as they themselves dart across the road against the lights. Yet we do not have the Howards and the Nigels railing against this practice, because even lazy, cranky celebrities are themselves pedestrians. Even tabloid journalists occasionally walk.

As almost all people (including cyclists) are pedestrians and most are motorists, it is a relatively risk-free activity to accuse only cyclists of rule-breaking, as the claimant is rarely a cyclist themselves. Only the offence of hypocrisy is committed.

But imagine, pace anti-cyclists, if we insisted that prams, strollers, skateboards and wheelchairs were registered for use on public thoroughfares. After all, one can be injured on a footpath by a non-motorised vehicle. Still better, it has been suggested ^# (in a gently ironic way) that maybe pedestrians should be registered too – perhaps with a higher annual fee for joggers…

It’s all just too petulant and ridiculous. Public roads are there for all of us. And most adults have the capacity to make judgments about risk in using the public space.

So, get over it and get on yer bike.

^# See the article by James Robertson and Jacob Saulwick in the Sydney Morning Herald of 31 August 2013, at http://news.drive.com.au/drive/roads-and-traffic/close-encounters-of-the-hostile-kind-20130830-2svyl.html

Against Australian Democracy – In Defence of a Right to Vote

It's not the voting that's democracy; it's the counting.
Tom Stoppard

On 17 August, just three weeks out from the 2013 Federal Election, the Guardian Australia website reported that ‘17% of Australians aged 18-24 are not on the (electoral) roll, compared with 7.6% in the wider population.’  This amounts to more than a million eligible Australians who are not on the roll.

And I’m one of them.

So why is a middle-aged, middle class Australian, with a near life-long interest in the practice and theory of politics and without a (criminal) record, not on the roll?

Because I believe in the right to vote; and having a right to vote means having the right not to vote.

I’m not talking here about intentionally informal voting (with or without gratuitous depictions or commentary on the merits of the candidates), or about attending the polling booth, having your name marked off the roll, and using the voting papers for a bit of ad hoc origami. While those may be meritorious political tactics, my strategic focus is on not attending the booth at all.

There are lots of ways lawfully not to vote when residing in Australia, other than just being too young: be in prison for a sentence of three years or more; don’t be an Australian citizen; be of unsound mind or intellectually or physically incapable; oh…or have a religious objection.

Yes, a genuine religious objection will get you off; but only a religious one – a non-religious philosophical objection won’t do. So, for example, holding a sincere and well-considered belief in the right to vote, as opposed to the duty to do so, will not cut it.

Trust me; I know.

I debated it in the NSW Local Courts over the trifling matter of a local government election; arguing that, as local government is not constitutionally recognised, we shouldn’t be required to vote in their elections. I went down with a fine reduced from $110. (The magistrate, it seemed, was partly moved by my arguments – maybe she thought it was all pretty trivial, too).

Anyway I have a record of some sort, I guess, to accompany the $50 fine.

My well-considered response (I had a while as the next election was some way off) was pretty similar to the other million or so unenrolled people. I took the easiest way out in my quest for civil disengagement – if you can’t beat ‘em, don’t enlist in the battle.

I haven’t been on the roll now for nearly two years. It’s easy.

Whenever you move house, and you notify the state licensing/motor registry office and other government bodies of your new address, they tell you that they advise the Australian Electoral Commission (AEC) of the changes, and ask if you would like to formally change your address on the electoral roll.

Guess what you do next? Nothing.

You don’t inform the AEC and you don’t respond to their cute letters inviting you to update your records. The AEC knows where you now live, but under current law can’t do anything about it. Being good bureaucrats, they hate that.

The AEC hates it because they don’t believe in, or enforce, the right to vote. They try to enforce the duty to vote. They’ve been seeking for some years a change to the law to require you to update your AEC records or to allow them to do it without your concurrence. So far, without success.

Of course the only problem with my strategy is that you can deny yourself the right to vote on those occasions when you otherwise might like to do so. Naturally you could re-enrol before an election of interest, but then the buggers have got you enrolled at your correct address until you move again.

I tell you, there are some advantages in being itinerant.

Of course, if voting wasn’t ‘compulsory’, we wouldn’t have to worry about this nonsense. But until this country grows up, treats us all like adults, and acknowledges that the right to do X entails the right not to do X, get with the million.

When you next move house, don’t tell the AEC.

NAÏVE DUALISM AS A FORM OF MADNESS IN HEALTH POLICY AND SERVICES

It is not enough to have a good mind; the main thing is to use it well.

Rene Descartes, Le Discours de la Methode, 1637

Those readers with even a bare smattering of Western philosophy will know of the dominant theory in the philosophy of mind from the mid-17^th to at least the mid-19^th century – interactional, or Cartesian, dualism.

‘Cartesian’ because, famously, the idea was brought to its intellectual apogee and propagated by the French rationalist philosopher and mathematician, Rene Descartes, whose main works, Meditations on First Philosophy and Discourse on the Method, first appeared in the short period between 1637 and 1644.

Dualism in the philosophy of mind is the hypothesis that mental phenomena are, in some or all respects, non-physical, or that the mind and body are not identical. The idea is that the body works like a machine; that is, it has only material or physical properties. The mind, on the other hand, is nonmaterial and is not subject to the laws of nature.

The key idea in interactional dualism is that, the above notwithstanding, mental states such as beliefs and desires causally interact with physical states; a view that appeals to our common sense or folk-psychological view of ourselves and our conscious experiences.

Descartes, in a speculative leap that today looks foolhardy at best, argued that the mind interacts with the body at the pineal gland; which, many readers will know, actually produces the serotonin derivative melatonin, a hormone that affects the modulation of sleep patterns and seasonal functioning.

Astute and interested readers, even if untrained in analytic philosophy, will I trust also have detected a wider and more fundamental problem with the interactional hypothesis. Indeed it is so well known and commonly taught to first year philosophy students that it has a name – the Link Problem in interactional dualism.

The Link Problem emerges directly from the Cartesian view of the body and the mind – the former is physical, extended, divisible and unconscious; the latter is spiritual, unextended, indivisible and conscious. The problem is this: how could two such fundamentally different sorts of things – one subject to physical laws, the other not – causally act on each other?

Moreover, for Descartes, while minds have no general physical properties, they are located in space and time. But how does this spooky non-physical entity, the mind, get tugged around by and causally interact with the rest of us, the body, to which it is notionally linked?

In the mid-20^th century the Oxford philosopher, Gilbert Ryle, dubbed Cartesian dualism the dogma of the ghost in the machine, wherein ‘the body and the mind are ordinarily harnessed together, but after the death of the body the mind may continue to exist and function’. Ryle’s purpose was to highlight the absurdity of dualist systems like Descartes', in which the means of interaction are without explanation.

As Ryle argued, it is a doctrine false not in detail but in principle. Mind and body are not separate things to be linked. To believe them to be so is not just a factual error; it entails what philosophers call a category mistake. Mental activity is not linkable with physical states – it is (something like) a function of (some) physical states; thus, if there is no physical stuff (eg a brain), then there is no mental activity.

In this light, to maintain a commitment to interactional dualism would be like asserting that cars can be linked to motoring. It may be cute as a metaphor, but as a scientific grounding for the study of transport, it manages to be both pointless and misleading.

Whatever one’s religious or metaphysical views might otherwise be, naïve dualism is not a candidate for the deeper understanding of our mental and physical states. And so, a fortiori, it should not feature in the grounding of health services for Homo sapiens in the 21^st century, any more than do voodoo or occult medical practices languishing from a pre-scientific culture. But alas it does.

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Mental Disorders and Physical Health: Linking body and mind

TheMHS Summer Forum, UTS Sydney, 21-22 February 2013

While it is not likely, as far as I know, that the imminent fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), will list as evidence of a disorder the belief in interactional dualism, reliance upon it in dividing the mental health world from the physical health world is in my view a form of social or institutional madness. Why so?

It is instructive to consider a scenario put to the above forum by a psychiatrist with an interest in physical health, Dr Jackie Curtis: we can call the scenario, the emergency response to the torso and the head. Imagine two teams of emergency clinicians on the pavement outside your local ED, one team dealing with the torso of a patient, the other a few metres away, examining the head.

It’s a silly scenario, of course – and it’s meant to be. It’s meant to throw into relief the folly of dealing with mental health problems in isolation from physical health problems. And as far as it goes it highlights the point fairly effectively. The problem is, it doesn’t go nearly far enough. The division of mental health from physical health is starkly more absurd than that.

How come? Well, for two reasons: the detached head is still the locus of ophthalmology, ENT, head and neck, maxillofacial and neurological surgery, et alia. And mental health, if it is to be represented as separate even from neurology, needs to have a third team in the scenario; one attending, if Cartesian dualism were right, an entirely mysterious entity ‘hovering’ who knows where.

Ryle’s attack was against not just philosophers – he targeted the views then prevalent among a wide range of theorists, including psychologists and religious teachers. And, as whacky as some even relatively recent (ie 20^th century) psychiatric theories have been, naïve dualism still conveniently dwells in customary thinking not only in mental health but also in the wider health field.

For reasons that Dr Curtis and fellow speakers in the Summer Forum on Mental Disorders and Physical Health otherwise amply demonstrated, this matters for consumers of health services. If we are to treat people as whole individuals, whose mental and physical life is one, we need to integrate health services. But resistance to this change remains ingrained on all sides of the various clinical fences, and the naïve belief in dualism helps entrench it.

Part of the reason for this is of course the prominent role that religious institutions had and to an extent still have in the provision of health services. And many practitioners in health care, their scientific education notwithstanding, retain a degree of personal if not professional religious affiliation. Some, I dare say, privately even believe in such things as the immortality of the soul.

Mostly in their working lives they keep these quaint ideas in check; separate from their roles and opinions as health professionals. But occasionally these notions leak out.

These philosophical poltergeists are especially prone to emerge from their closets in debates about the roles and relationships of various parts of those complex social entities we call health services; and can do so even inadvertently, as would appear in the title of the forum, Linking body and mind.

Why do I say these views are mad, rather than just wrong? Because, as I trust DSM-5 would have it, the beliefs are not in accord with reality and have a propensity to cause harm to self or others. But what’s the harm? It is the deleterious impact on the structure, relationships and effectiveness of health services, and therefore on the optimisation of health outcomes for whole human beings.

Within the Australian health system, there are some notable and forward-thinking exceptions, such as the Brain and Mind Research Institute at the University of Sydney. But even its thinking is a fair way, I suggest, from seeping through the core of health services policy and practice. Despite 20 years or more of mainstreaming in mental health, almost all health services, and a great deal of health policy, still turn on dualist notions of the incommensurability of mental and physical health.

I implied in the title of this piece that only naïve dualism is a form of madness. But there I was being excessively generous. Without glossing over the last 60 years of the philosophy of mind too lightly, it can be rightly said that the only competing views with any prospect of success have been some take or other on physico-functionalist accounts.

And the advances in the neurosciences generally over the same period have simply served to strengthen the case for non-dualist accounts of the mind*. Thus, any form of dualism that permeates health policy and practice in the 21^st century is in reality mad.

We’ve largely moved on from the beliefs about medical and health sciences of the 17^th, or even the 18^th or 19^th, century. We need to do the same with the philosophical views of human nature that underpin health and medical policy and practice. So let’s get motoring.

Dr Enrico Brik

March 2013

* The only notable remnant of dualism in analytic philosophy in the late 20^th century, New Epiphenomenalism (itself a more sophisticated re-articulation of 19^th century Epiphenomenalism), is rightly seen by most in analytic philosophy as dualism’s last gasp.