Estoy con España
Ah, but yeah, but no, but
Much of our preoccupation with world events—if preoccupied we are and not simply hunkered down in our own interests—is to determine not what is right and what is wrong but, when they opine as to what is right and what is wrong, who is right and who is wrong. Everyone is searching for the crucial causal connection. Some want the price of oil to skyrocket, some don’t, and some think one thing will cause it to skyrocket, and that that ought therefore to be avoided, whereas some think it ought to be striven for, and vice versa.
A fire ignited in a wastepaper basket is, in this sense, caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the charwoman to empty the basket and so forth. Fortunately, in legal inquiries it does not matter if we are unable to identify all, or even most, of the individual elements which constitute the complex set of conditions jointly sufficient to produce a given consequence. The reason is that we are usually interested only to investigate whether one, two or perhaps three specific conditions (e.g. identified acts or omissions by the defendant or other participants in the accident) were causally relevant.
Whether a particular condition qualifies as a causally relevant factor will depend on whether it was necessary to complete a set of conditions jointly sufficient to account for the given occurrence. Hence the traditional pre-occupation with ‘necessary’ conditions or “causa sine qua non” as the touchstone of causality.
John G. Fleming, The Law Of Torts (5th edition. The Law Book Company Limited, Sydney: 1977, page 180).
The problems associated with causality in tort law (delict in some jurisdictions) are that, ultimately, you can argue that just about anything causes anything. The argument that will win is not necessarily the right argument but the argument that is most eloquently argued, or the one argued by the more influential party. Take Fleming’s further example:
Suppose a pedestrian is knocked down from behind by a car, while walking on the shoulder of the road—contrary to the highway code—in the direction of, instead of facing, the motor traffic. It would be a mistake to affirm his causal contribution to the accident simply by saying that if he had been on the other side of the road, the defendant’s car would not have run into him. The proper question to ask is rather if he could have avoided the accident had he been facing the defendant’s car. The reason for so formulating the causal hypothetical is that the prohibition was not against his being where he was, but against having the traffic behind him. Hence the causality of his infraction must be tested by turning him around, rather than transferring him to the other side of the road.
Fleming, idem, page 181.
It’s a situation similar to the one alluded to in my own article here:
In Saudi Arabia, let’s say a western businessman arrives at Riyadh airport and hails a taxi in order to drive to his hotel in the town. On the road, the taxi is involved in an accident. Under Saudi law, the accident is the responsibility, not of either of the two drivers, but of the man sitting on the back seat of the taxi. Under Saudi law, there is a causal connection between the accident and, not the mistake that one of the drivers may have made but the fact of the businessman landing at Riyadh airport and wanting to transfer to his hotel. That is the causal connection and that may seem tenuous to many, but it is not regarded as tenuous under the laws of the Kingdom.
There are even legal arguments that go to the extremes of blaming victims for their own murder, such as the defence that was put up when two men murdered Matthew Shepard in 1998, Aaron McKinney and Russell Henderson.
He was murdered because he was gay. He was offered a lift by two men in a pick-up truck in Colorado, USA, who proceeded to rob him and pistol whip him to the point of breaking open his skull, whereupon his body was mounted on a barbed-wire fence, where he was left for dead. He was found by passers-by who succoured to his aid; but he would not recover. He was 21 years of age.
McKinney’s defence counsel countered the charge against him by arguing that he had intended only to rob Shepard but he killed him in a rage when Shepard made a sexual advance towards him. In a 2009 interview, McKinney said, “The night I did it, I did have hatred for homosexuals” and “he was obviously gay. That played a part. His weakness. His frailty.” It is not the vacuousness of that defence that garners scepticism; it is the brazenness with which it was advanced as a link of causality to Shepard’s murder: Shepard’s sexual advance—if true—was argued to be a ground inducing temporary insanity in his killer’s mind, thus justifying, or at least mitigating, the attendant act of murder.
The hypothetical situations of the man knocked down walking on the wrong side of the road and of the taxi driver in Riyadh are worth dwelling on. Where would you apportion the blame in those cases? Do you think it matters that, if the pedestrian had been facing the traffic, he’d have been able to take avoiding measures? What if the other side of the road had been very busy with traffic, and he was walking down the calmer side of the road? Do businessmen visiting Riyadh have to ensure they have plentiful cash to buy their way out of such potential situations, or do they just need to avoid going to Riyadh at all? Where lies the truth?
I can refer you to another piece I wrote on a vastly different subject: https://endlesschain.substack.com/p/what-is-a-notary-public.
In my translation career, I have translated a total of two deeds of repute. These are legal deeds which aim to constitute evidence of a fact required for succession purposes, but of which there is no official record. So, you state the facts you want to “exist” in a notarised document and have it witnessed by those who can attest to those facts. The “repute” becomes “fact”.
The first of these was Moroccan, written in French and Arabic. I was surprised when, at the end, there came no fewer than 20 signatures. When you think about it, a deed of repute sets down in written form something that “everybody knows”. And, if everybody knows it, then surely 20 people know it? Moroccan society is very close knit, so the drafters of this legal requirement will never have doubted that, if such a deed were needed, 20 people could easily be found to attest to the fact contained in it.
The second such document was notarised in Luxembourg. It bore the more customary two signatures. As it happened, the two signatories were both clerks in the notary public’s office. I know, because it said so. Now, I know Luxembourg is a small place, but this is a coincidence too far for me. I think the clerks perjured themselves. I don’t know, but I don’t think you will easily get 20 Moroccans all to perjure themselves. But two clerks in the office of the notary drafting the deed and paying their wages? That, I think, is feasible.
The invocation of the Belgian Criminal Code (it repeats often in that legislation) is to determine “the truth”. Truth is, no court of law determines truth. It is as Fleming says above: in legal inquiries it does not matter if we are unable to identify all, or even most, of the individual elements which constitute the complex set of conditions jointly sufficient to produce a given consequence. That idea is encapsulated in the rules of evidence: in civil cases, decisions are handed down on the “balance of probability”, so the amount of truth that’s needed is, mathematically, 51 per cent. In criminal causes, the test is “beyond reasonable doubt”, so that does not exclude doubt, it just excludes any doubt that is unreasonable. But it still isn’t 100 per cent. So, courts don’t seek truth, in truth. They seek “enough” truth. And the truth of which enough is sought is different depending on whether you’re a Saudi taxi driver or the man walking the wrong way down a road. Whether a judge is equipped ever to discern “enough” truth is a matter for discussion. I believe that, in principle, judges should be able to find enough truth to rule on a case. And it is precisely that ability which governments nowadays don’t seem to like: they don’t want “truth”, nor do they want “enough truth”; they want “our truth”.
By now, you may be wondering what the principles of causation in tort law have to do with the title: estoy con España, and the subtitle Ah, but yeah, but no, but.
Estoy con España is Spanish, and means I stand with Spain. And Ah, but yeah, but no, but was the catchphrase of a character portrayed by actor Matt Lucas in the TV series Little Britain: a young lady dressed in pink who could never make her mind up, and was never much bovvered in any case.
There are doubtlessly no end of arguments for not standing with Spain. There is the country’s cruel and avaricious imperial past, its embrace of slavery, its traditional rivalry with England and the Armada, the horror of Guernica, its fascist dictatorship, its king who shot elephants, its arguments over possession of Gibraltar (by someone else), and Ceuta and Melilla (by it). Standing with Spain is therefore something that needs careful consideration, because no one wants to end up standing on the wrong side: the wrong side of the road; the wrong side of history. Hence, to paraphrase Fleming, the causality of my fault must be tested by turning me around, rather than transferring me to the other side. In the end, whether I am right or wrong will not depend on the side on which I stood, but on whether I had my back to, or was facing, the oncoming danger.
As I survey the Global North for leadership—principled leadership, which is unafraid to speak out against the horrors that horrify me or to take a stance behind which I can feel myself comfortable in aligning, insofar as the simple criteria for alignment are met, and which don’t seek to descend into some contorted, ever-decreasing spiral of “ah, but yeah, but no, but yeah”—then, there are few exemplars that inspire.
I was heartened by the stance taken by Ireland and Spain in relation to the genocide in the Gaza Strip. And I have been disappointed by the failure of the European Union to take a principled stance on the matter of the Israeli/American War on Iran (see the linked article, above). Like the contributory factors that can conspire and militate to produce an accident, from which it can prove hard to discern the primary one, so it is perfectly possible to bemoan the state of human rights and oppression of the people in the Islamic Republic of Iran, just as it is possible to bemoan the state of such rights and oppressions in the United States, or in the United Kingdom, or in parts of the European Union, or in Ukraine, or in Russia, or, even, in Spain. And yet it is quite feasible still to hold fast to a principle that overrides all others: that I can still steadfastly oppose death and destruction from Israel’s and America’s attacks on that country, be they targeted or wanton, be they justified or no.
It is not incompatible to criticise Iran, and at the same time to defend its sovereignty and its assured protection under the United Nations Charter. It is precisely the tendency, as did Aaron McKinney in his murder trial, to justify attacks, when they are made, and to justify their absence, when they are not, that makes of statesmanship a whimsy. Precisely the kind of whimsy that depends on whether the lawyer acts for the plaintiff or the defendant. The whole rationale behind having courts of law at all is predicated on our knowledge that party litigants are incapable of principle. No less so, warring parties.