Disinformation

And my concerns with regulating it

I have seen many people on across the political spectrum decry “disinformation” lately and accuse those with whom they disagree of being misleading. There are proposals to bring in legislation to combat disinformation.

Some information disseminated on the web is definitely misleading. For example, my children informed me that there are some people in America who believe Australia is a myth, and that it is all made up, and have produced “proof”. It’s so ridiculously stupid you can’t even process it.

This kangaroo is surprised to learn of its mythical status. Photo by Photoholgic on Unsplash

However, it struck me that, often, what’s actually present in political debates these days is not “misinformation”, but something importantly different. Many people of every political persuasion present contested and contestable propositions as incontrovertible truth.

It’s not a problem to believe a contestable proposition—the majority of my beliefs fall into this category!—as long as (1) you know that the proposition can be contested, even if you don’t agree with the objection and (2) you are measured and even-handed, and note that there are other views.

Unfortunately, both mainstream media and social media promote the use of simplistic slogans and shallow narratives, and those who produce polarised opinions tend to do better both in the mainstream media and on social media platforms than those who promote nuance. We have short attention spans, we like simplicity, we like feeling like we’re in the right, and we don’t like to have our assumptions questioned.

It struck me that rather than outlawing “disinformation”, we needed to remind ourselves how to make proper arguments which consider alternative views, and reject arguments which do not, despite the lure of the latter.

Regular readers probably sense that I am going to take this post somewhere bizarre, with reference to comparative law, religion, academia, and medieval history. My dear readers, I cannot bear to disappoint you. Here we go! Strap yourselves in for a ride into the world of medieval Central Asian madrasas!

Earlier this year, I read Christopher I Beckwith’s Warriors of the Cloisters: The Central Asian Origins of Science in the Medieval World (2012, Princeton University Press). Why was I reading such a book, you may ask? I had to consult Thomas Aquinas for an historical and comparative law piece I wrote on how remoteness principles developed in the law of contract damages. I became interested in how medieval scholars came up with their distinctive recursive method of argument, which necessarily involves fairly presenting and considering other points of view, then rebutting them. My friend

Lorenzo Warby

recommended Beckwith’s book.

What do I mean by a recursive method of argument? Here is an extract from Thomas Aquinas’s Summa Theologiae:

Question 61: The Parts of Justice

Article 1. Whether two species of justice are suitably assigned, viz. commutative and distributive?

Objection 1. It would seem that the two species of justice are unsuitably assigned, viz. distributive and commutative…

Objection 2. Further, the act of justice is to render to each one what is his own, as stated above…

Objection 3. Further, justice is not only in the sovereign, but also in the subject, as stated above…

Objection 4. Further, "Distributive justice regards common goods" (Ethic. v, 4)…

Objection 5. Further, unity or multitude do not change the species of a virtue.…

On the contrary, The Philosopher [Aristotle] assigns two parts to justice and says (Ethic. v, 2) that "one directs distributions, the other, commutations."…

I answer that, As stated above, particular justice is directed to the private individual, who is compared to the community as a part to the whole. … Hence there are two species of justice, distributive and commutative.

Reply to Objection 1. Just as a private individual is praised for moderation in his bounty, and blamed for excess therein, so too ought moderation to be observed in the distribution of common goods…

Reply to Objection 2. Even as part and whole are somewhat the same, so too that which pertains to the whole, pertains somewhat to the part also…

Reply to Objection 3. The act of distributing the goods of the community, belongs to none but those who exercise authority over those goods…

Reply to Objection 4. Movement takes its species from the term "whereunto." Hence it belongs to legal justice to direct to the common good those matters which concern private individuals…

Reply to Objection 5. Distributive and commutative justice differ not only in respect of unity and multitude...

You don’t need to worry about the precise content of the discussion above, although, for those interested, in picking this passage, I am indulging my long-running fascination on the distinctions between corrective or commutative justice and distributive justice. I hope you can see what Aquinas has done:

• He’s posed a question: is the division between commutative and distributive justice a workable one?

• He has then laid out five different ways in which someone might argue that the division is not workable.

• Then he has laid out his answer to the question: the division is a workable one, as Aristotle argues.

• Finally he has laid out five rebuttals to the five ways in which someone might argue that the division is not workable.

The distinctive aspect of this kind of scholarship is that the scholar is required to set out the reasons why their argument might be wrong, and then formally rebut those arguments. It requires a certain discipline and training in logic, and forces the scholar to consider the reasons why someone might argue differently from them.

It seems that Aquinas and other medieval scholars derived their method of argument from the Andalusian Islamic scholar Ibn Rushd (Averroes) who was admired greatly by European Scholastics. Thomas Aquinas was also inspired by the Andalusian Jewish scholar Maimonides, likewise a user of the recursive form of argument.

By Carlo Crivelli - http://www.nationalgallery.org.uk/paintings/carlo-crivelli-saint-thomas-aquinas, Public Domain, https://commons.wikimedia.org/w/index.php?curid=528367

Beckwith’s hypothesis is that scholars in the Muslim world incorporated recursive argument into their scholarship after they conquered Central Asia. The Islamic scholar Ibn Sina (Avicenna) was born in Central Asia in Afshana (now part of modern-day Uzbekistan), where he learned these distinctive forms of argument. Although Avicenna was Muslim, Beckwith argues that this method of argument was not at first Islamic: Central Asian Buddhists had used it in this area of the world, before Islamisation. Many cultural practices from earlier periods persisted.

Hence, Beckwith argues that the Islamic college, the madrasa, was based on the earlier Central Asian Buddhist college, the vihãra, in which the recursive form of argument was first developed.

During the Crusades, Europeans were exposed to the madrasas, and borrowed the concept for their colleges (complete with cloisters, which had also been a distinctive feature of both the madrasa and the vihãra).

Beckwith hypothesises that, in Europe, the concept of a college was then meshed with the universitas (a union for scholars with a licence to teach). Endowed universities with colleges and a community of scholars could then pass on knowledge to the next generation.

This underscores the fact that the purpose of universities is to pass knowledge on to the next generation, and to teach people how to reason. We don’t necessarily have to make breakthroughs. An important part of our job is about collecting and conserving the knowledge we have gained, and passing it on to others, so that it is not lost.

Universities should be fundamentally collegial: with a shared responsibility for learning and advancing thought, operating for the benefit of both scholars and students.

I do not believe this is how universities operate now. They are huge corporations, largely dependent upon government funding in Australia and Britain. As Mary Synge has argued in The University Charity, universities have responded to government incentives to move away from “advancement of education” (an inherently charitable aim, for the service of the public and students). Instead, there is an emphasis upon making money and achieving “key performance indicators”. How many grants did you get, how many publications did you have, how many students did you churn through your classes, how many boxes on that administrative form can you tick? In my view, Dr Synge is correct to argue that charity law can provide a way of reminding the university sector where its boundaries should be, how it has lost its way, and whom it should serve (definitely not the government).

Returning to the mission of the academy, it is really important to acknowledge that others may have different views from yours, and, where those views are reasoned, to try and acknowledge those views.¹ The medieval scholars I’ve discussed—monks, kadis, and rabbis—understood this. They understood that to admit there was a credible alternative view did not weaken one’s opinion, but in fact, made it stronger.

We should not be offended when people question our views in an informed fashion, even if they disagree with us fundamentally. It’s one of the ways in which we learn. It’s also part of the reason I write this Substack: to garner questions, and to learn from you, my readers. As I say to my students, often I learn from them when I teach. I don’t think I know the “incontrovertible truth”, even in areas where I am an expert, but I do try to back up my hypotheses so that others can see my reasoning, and see other views.

I am always open to the possibility that one of my academic articles or books may be contested successfully. I am not ashamed. No less a scholar than Albert Einstein acknowledged the same possibility:

No amount of experimentation can ever prove me right; a single experiment can prove me wrong.

If you refuse to listen to people who question or contest your assumptions—or even worse, if you try to destroy those people—you fall into the “dictator trap”. In other words, you make bad decisions or errors in your reasoning, but because the people you’ve surrounded yourself with are too scared to say anything, you continue with a disastrous course of action.

This is why I am scared by the prospect of “disinformation” legislation. It’s natural for many people to immediately envisage a view they think is wrong and dangerous, and welcome the prospect that the dissemination of that view might be stopped. Don’t think of the legislation in that way. Think, instead, about the most controversial opinion you have. Go on! Is it firm in your mind? Now imagine that the government in power believes your opinion is incontrovertibly wrong, even though you have real bases for believing as you do.

It’s true that such legislation might be able to be used to stop people from peddling information which is incontrovertibly untrue (eg, Australia doesn’t exist… I’m sorry, I’m laughing again). But there’s a real risk that it will be used to censor people from arguing against contestable propositions.

Let’s look at the Australian Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill 2023. Section 7(1) of the Bill seeks to stop “disinformation” or “misinformation” using a digital service. The information must be “false, misleading or deceptive” and “likely to cause or contribute to serious harm”. The question for me is how broad the notion of “false, misleading or deceptive” might be, and how strong the need to cause harm is. Under the Australian Consumer Law, s 18 prohibits “misleading or deceptive conduct in trade or commerce.” The breadth of what constitutes misleading conduct under that section is very broad; will a similar approach be taken here? It’s unclear, and worrying.

As my friend Gillian Dempsey has pointed out on Twitter/X, there are some nasty provisions in the Bill. She highlights s 21 of the Bill, which removes the common law privilege against self-incrimination:

(1) An individual is not excused from giving information or evidence or producing a document or a copy of a document under this Division on the ground that giving the information or evidence or producing the document or copy might tend to incriminate the individual in relation to an offence.

Note: A body corporate is not entitled to claim the privilege against self incrimination.

(2) However:

(a) the information or evidence given or document or copy produced; and

(b) the giving of the information or evidence or the production of the document or copy; and

(c) any information, document or thing obtained as a direct or indirect consequence of the giving of the information or evidence or the production of the document or copy;

is not admissible in evidence against the individual in criminal proceedings other than:

(d) proceedings for an offence against subclause 22(1); or

(e) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Division.

(3) If, at general law, an individual would otherwise be able to claim the privilege against self-exposure to a penalty (other than a penalty for an offence) in relation to giving information or evidence or producing a document or copy under this Division, the individual is not excused from giving the information or evidence or producing the document or copy under this Division on that ground.

In other words, the privilege against self-incrimination—a law which is fundamental to the rule of law and freedom of speech in common law countries—does not apply to offences under the Bill. For some reason, the mainstream media is not highlighting the issues with this Bill.

Instead of stopping people from saying things which are untrue in such a potentially authoritarian way, I believe that we need to (1) recall how to argue properly, and how to dissect logical fallacies; and (2) try not to be swayed by arguments which present contestable propositions as incontrovertible truths.

Remember what the medieval scholars did. If the author you’re reading treats anyone who disagrees with them as evil, if they never fairly identify what their opponents’ views are and don’t engage with them, and if they attempt to press your emotional buttons and confirm all your biases, you should be wary.

Sit back, and think about what you read. There is usually some grain of truth in whatever they say; but you will need to think about this information carefully. What’s the rebuttal? Then, my friends, you’re into thinking like a lawyer.

1. Views that Australia is mythical are automatically struck out. Although I quite like the idea of being a Mythical Person.