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The Therapeutic Model of Philosophy: Philosophy as Applied Philosophy

I’ve always been fond of the model of “applied philosophy” Martha Nussbaum so ably examined in what remains for me her best book, The Therapy of Desire: Theory and Practice in Hellenistic Ethics (1994). She quotes the following from Epicurus: “Empty is that philosopher’s argument by which no human suffering is therapeutically treated. For just as there is no use in a medical art that does not cast out the sickness of bodies, so too there is no use in philosophy, unless it casts out the suffering of the soul.” The elimination of human suffering on the one hand, and the achievement of human flourishing (eudaimonia) on the other, are in effect two sides of the same coin. For the Epicureans, Skeptics, and Stoics, notes Nussbaum, “philosophy is above all the art of human life.” The medical analogy central to this conception of philosophy plays an intriguingly similar role to the very same analogy used in Buddhism (and the approach to ‘the emotions,’ what for the Buddhist falls under the larger rubric of ‘mental afflictions,’ is in many respects the same as well). “Empty and vain” is any philosophy, on this account, not conceived along the lines of an “art of human living.” Philosophy understood as centrally concerned with ethically normative “ways of living” is of course likewise found in classical Chinese worldviews (Daoist, Confucian…) and Indic philosophical schools that grew up within religious traditions (Nyāya, Vaiśesika, Sāmkhya, Yoga, Mīmāmsā, Vedānta, Jaina, Buddhist, and Cārvāka).

John M. Cooper (and after Pierre Hadot) has recently characterized all of classical Greek philosophy in much the same manner: “In antiquity, beginning with Socrates…philosophy was widely pursued as not just the best guide to life but as both the intellectual basis and the motivating force for the best human life….” For the details, see his Pursuits of Wisdom: Six Ways of Life in Ancient Philosophy from Socrates to Plotinus (2012).

I complete the picture with Nussbaum’s introduction to the Roman Stoic, Seneca: “According to this account, philosophy is still a compassionate doctor, administering to urgent human needs. ‘There is no time for playing around,’ says Seneca, attacking philosophers who devote their careers to logical puzzles. ‘…You have promised to bring help to the shipwrecked, the imprisoned, the sick, the needy, to those whose heads are under the poised axe. Where are you deflecting your attention? What are you doing?’ And yet, this compassion is combined with a fundamental respect for the integrity of the reasoning powers of each person. The patient must not simply remain a patient, dependent and receptive, she must become her own doctor.”

Perhaps needless to say, most contemporary professional philosophers do not imagine this to be the kind of philosophy they practice. Indeed, I suspect a very, very small number (if any) of contemporary philosophers, especially the academic sort, come close to exemplifying, or even aspiring to the therapeutic model. The asymmetric role between the philosopher and pupil or physician and patient, is sometimes thought to necessarily involve some sort of immodesty or lack of humility. But there’s nothing intrinsic to the therapeutic model, any more than a physician well-versed in the arts of healing, that entails or implies immodesty of any kind: epistemic or otherwise. As the therapeutic model involves something on the order of “the proof of the pudding is in the eating,” the philosopher’s life is one of ongoing lessons in humility, like the ideal doctor, the philosopher never fails to learn from his patients, nor does she forget to practice daily self-examination (a more humbling exercise is hard to imagine). And let’s not forget that Socratic humility, such as it is, was hardly perceived as such by those of his time, hence the Apology, the false accusations, Aristophanes’ portrait of Socrates, and so forth. Modesty on Socrates’ part did not preclude his commitment to living according to philosophical standards of courage, justice, piety, and temperance, did not prevent the deference to his daimon….

The therapeutic model is exercised in the first instance on an individual basis, not at the collective level, as Nussbaum says, therapeutic arguments, like medical treatments, are directed at the health of the individual. Consider too, and by way of analogical example, Grant R. Gillet’s remarks, speaking both as a neurosurgeon and professor of biomedical ethics in his invaluable book, Bioethics in the Clinic: Hippocratic Reflections (2004): “Hippocratic practitioners clearly need to cultivate certain virtues. They need to be trustworthy and committed to discovering and respecting the patient’s real interests. They must appreciate widely different life stories and the role illness in these stories. They must then incorporate their clinical learning into practicing the art of medicine, systematically incorporating scientific and therapeutic developments. This requires empathy and humility, and a right use of their powers as healers so that they can participate in liberating their patients from affliction. They must have a number of traits: imagination, self-criticism, generosity of spirit, loyalty, justice and patience, even irony. And in all of this they must cultivate their own growth as people so that they become more complete in their ability to help those who turn to them.” Just so….

The resurrection of the notion of “intellectual virtues” or regulative or virtue epistemology is an attempt to formulate in today’s terms and under contemporary conditions an idea whose origin lies in classical Greek philosophy. In other words, epistemic modesty in particular or philosophical modesty in general bespeaks the sort of humility that is the opposite of vanity and arrogance, and is incarnate in the therapeutic model as exemplifying the care, concern, and attentiveness that eludes the immodest, the vain, the arrogant. This is the converse of that species of self-importance and individual and group flattery one finds in academic circles routinely rewarding (by salaries, titles, awards, praise, etc.) the talented, the skilled, and the accomplished, routinely obsessing over citation numbers, attainment of tenure, individual and departmental prestige, funding and grants, leaving the stamp of one’s mental products on disciples, on one’s field, and so on.

Finally, I should add that I don’t envision philosophers, professional or otherwise, being accorded any special status or privilege in public or political fora, their views filtered through participatory and deliberative democratic methods and processes along with the views of their fellow citizens (which does not mean their contributions might not be unsettling or that their engagement might come at great risk to themselves: witness Jan Patočka in the former Czechoslovakia or Rudolf Bahro in East Germany, or Buddhist monks and nuns in Tibet, or…Socrates in the agora).

Note: The images are of Mañjuśrī and Avalokiteśvara respectively, the bodhisattvic embodiments of wisdom and compassion in Mahāyāna Buddhism.

The Stolen Valor Case, the Frozen Mold, and First Amendment Idolatry

Many people are concerned that the Stolen Valor case has converted the First Amendment into a right to lie. Others are happy that the Court resisted the temptation to allow the government to send people off to jail for words that have caused no harm or to assume that the government is a better arbitrator of truth than the marketplace. Lost in the discussion is the Court’s important retreat from First Amendment idolatry.

Prior to the Stolen Valor case, the Court had settled into a frozen mold of determining whether a category of speech was unprotected by the First Amendment. In order to determine that a category of speech was unprotected, either the category of speech had to be historically unprotected (obscenity, defamation, fraud, perjury etc) or the government had to meet a “strict scrutiny” test, namely it had to show that outlawing the speech was necessary to achieve a compelling state interest. And the strict scrutiny test was almost impossible to satisfy.  Because the strict scrutiny test is almost impossible to satisfy, the frozen mold approach reates a form of First Amendment idolatry. It assumes that speech is always so important that it invariably outweighs whatever interests the government might have on the other side. By putting a thumb on the scales in favor of speech, the Court shortchanges other important values such as human dignity, privacy, the fair administration of justice, and public health.

Four justices on the Court led by Justice Kennedy stuck with the frozen mold of First Amendment idolatry. They said: there is no long history of outlawing false autobiographical statements of military honors; although falsely making such claims is indefensible, prohibiting such representations is not necessary to achieve a compelling governmental interest. That was not a difficult argument to make. But there was an embarrassing hurdle. Other significant statutes outlaw the making of false statements. In particular, 18 U.S.C. §1001 forbids the making of material false statements to government agents whether or not the misrepresentation misleads. The statute is a major tool in the arsenal of federal law enforcement. For example, Martha Stewart and thousands of others have gone to jail or forced to plea because of the statute. There is no way the Court will declare the statute unconstitutional and the plurality made clear that it was not questioning 18 U.S.C. §1001. But it is hard to see how those justices could uphold that statute using the frozen mold. It meets neither the long history test, nor the strict scrutiny test. It richly demonstrates the need for more sensitive interpretive tools than the frozen mold.

Fortunately, Justices Breyer, joined by Justice Kagan, appreciate the bankruptcy of the frozen mold. They argue that these cases should be approached by considering all the factors relevant to the case without using a test that dictates a free speech outcome from the beginning. Those justices would apply “middle level scrutiny,” and they are right to do so. I have been contending since 1978 that speech comes into conflict with too many important values in too many diverse contexts to hope or expect that speech should always prevail or that a single theory would guide us to satisfying results. If the Stolen Valor case marks the death of the frozen mold, it is a day for celebration.

By the way, I think that the Stolen Valor statute was rightly declared unconstitutional; I have doubts about 18 U.S.C. §1001, and there is much to appreciate in the dissenters’ opinion though in the end, I disagree with it. I will come back to all this early next week.  

 

 

Chief Justice Roberts and the Affordable Health Care Act

Prior to the announcement of today's monumental health care decision, the betting was that the key vote would be Kennedy and that if Kennedy swung toward upholding the act, Roberts would join him. We now know that Roberts was the key vote, and we should have suspected it from the beginning.

Roberts more than any other member of the Court has a stake in how the Court is perceived. The media and historians focus on the legacy of the Roberts Court. If the Court had struck down the Affordable Health Care Act, there was a grave danger to the Court that it would be perceived as a partisan wing of the Republican Party. The decision would have been perceived as woven from the same cloth as Bush v. Gore and Citizens United. Instead, the Supreme Court will be perceived in this decision as having acted as a court of law rather than as a naked political power organ.

Of course, law is a subcategory of politics. But it is a subcategory bound by certain authorities, customs, habits, and traditions. Policy plays a role, but partisan politics is out of bounds. Roberts understood that. It is a courageous decision on his part. He will be hated by conservatives for what he has done. And he will never be loved by liberals, nor should he be.  But I respect the fact that he ruled today in a way that will promote respect for the Court as an institution. 

American-style Socialism

Again and again across the great arc of American history, at the critical junctures in our national journey, socialist citizens, thinkers and organizers, supported by Socialist candidates and elected officials (at the federal, state, and local levels), have provoked and prodded the body politic in progressive directions. Despite their determined efforts, America is not a socialist country—at least not in any formal sense. [….] Even if programs ‘organized along socialist lines’ do not make a country socialist, and even if America’s relationship with social democracy is more nuanced and more complicated than that of many other nations, the United States is a country that has always been and should continue to be informed by socialists, socialist ideals and a socialist critique of public policies. That may read to some as a radical statement. It’s not, at least for those who choose to be realists about our history, about our moment, and about the future that has yet to be written.—John Nichols

Fox & Friends converts, aficionados of Rush Limbaugh, Tea Party Know-Nothings, Ayn Rand Libertarians, or Right-wing proto-fascists and wackos generally, should no longer fret over the Obama administration’s putative attempt to fashion and propagate “an elaborate scheme to foist European-style socialism on an unsuspecting public.” It should be obvious by now that European-style socialism will never get past the Supreme Court, nor capture the hearts and minds of Americans. What they should have ample reason to fear (insofar as it shatters their ideological illusions) however, is the prospect of an American-style socialism, that is, socialism and communism (notice the lower-case ‘c’) of red-blooded American vintage, in other words, but not exclusively, utopian socialism (of the sort which originally inspired Marx and Engels, although they later sought to distance themselves from its influence in a misguided effort to make socialism ‘scientific’ and in the more sympathetic endeavor to render socialism relevant to the ‘politics’ of their era*). Such socialism need not be “foisted” on an “unsuspecting public,” for presumably the bulk of this public has acquired a high school education, in which case it is intimately familiar with American history and thus well acquainted with the following works (as exemplary and illustrative samples), or at least the subject material discussed in same:

• Buhle, Paul. Marxism in the USA: From 1870 to the Present Day. London: Verso, 1987.
• Case, John and Rosemary C.R. Taylor, eds. Co-ops, Communes, and Collectives: Experiments in Social Change in the 1960s and 1970s. New York: Pantheon Books, 1979.
• Curl, John. For All the People: Uncovering the Hidden History of Cooperation, Cooperative Movements, and Communalism in America. Oakland, CA: PM Press, 2nd ed., 2012.
• DeLeon, Richard Edward. Left Coast City: Progressive Politics in San Francisco, 1975-1991. Lawrence, KS: University Press of Kansas, 1992.
• Flacks, Richard. Making History: The Radical Tradition in American Life. New York: Columbia University Press, 1988.
• Frost, Jennifer. An Interracial Movement of the Poor: Community Organizing and the New Left in the 1960s. New York: New York University Press, 2001.
• Gendron, Richard and G. William Domhoff. The Leftmost City: Power and Progressive Politics in Santa Cruz. Boulder, CO: Westview Press, 2009.
• Hine, Robert V. California’s Utopian Colonies. Berkeley, CA: University of California Press, 1983 ed.
• Jackall, Robert and Henry M. Levin, eds. Worker Cooperatives in America. Berkeley, CA: University of California Press, 1984.
• Melville, Keith. Communes in the Counter Culture: Origins, Theories, Styles of Life. New York: Morrow Quill, 1972.
• Nichols, John. The “S” Word: A Short History of an American Tradition…Socialism. London: Verso, 2011. [This book contains much of the relevant literature in its notes from several chapters.]
• Nordhoff, Charles. The Communistic Societies of the United States. New York: Schocken Books, 1965 (originally published in 1875).
• Pitzer, Donald E., ed. America’s Communal Utopias. Chapel Hill, NC: University of North Carolina Press, 1997.

* On Marx and Engels ambivalent relation to “utopian socialism,” see Vincent Geoghegan’s Utopianism and Marxism (London: Methuen & Co., 1987).  On the continuing relevance of “utopian socialism” to socialist aspirations and experiments, see Michael Harrington’s Socialism: Past and Future (New York: Arcade Publishing, 1989). For those of you who may have forgotten, this is the same Michael Harrington who penned the classic, The Other America (1962). On what is meant by the term “utopian,” please see here and here.

Race, Political Economy, and the Last Four Years

Patrick O'Donnell recommended an article on Facebook that I would like to recommend here. Paul Krugman and Robin Wells give an outstanding overview of the political dynamics affecting economic policy in the Democratic and Republican parties. They recount the capture of the Obama administration by Wall Street (interestingly they generally agree with the economic views of Larry Summers, but criticize his approach to Congress), explore the interaction between the economic advisors and Obama (Geithner is the chief villain), and fault Obama for his timidity at many levels.

Although they do not develop the theme in detail (Krugman has done this elsewhere), they explore the role of race in discussing the Republican Party. They indicate how the perception of the bailout was bizarrely tinged by race; they observe that white Republicans (and they are mostly white) have a sense that they are losing their country to immigrants. Although they do not discuss it, this sense of loss and fear is part of a larger religious picture in which the changing sexual mores of the nation set in motion by the pill leads Republicans to believe they live in a sinful nation and that leads to a sense of loss and fear. 

Krugman and Wells conclude that it is hard to see how things can change given the intransigence of the Republican Party. But Krugman has elsewhere argued that the changing demographics of the country are very bad for the Republicans. Their racist appeals, subtle or otherwise, face an increasingly counterproductive future. He was right the first time. The Republicans have reason to fear that they are losing the country. But it is hard to see that when their current election prospects still look promising. 

I am not a big believer in the market place of ideas. But when you see just how crazy the Republicans are (recall the Presidential primaries) and you combine it with the significantly changing demographics, it is hard to see them as the party of the future. Lunatics can do a lot of damage in the short run, however, and we have reason to be afraid as well.

Reimagining Development

At Concurring Opinions, Professor Tayyud Mahmud has up yet another provocative post, the second in a series: “Alternative Development or Alternatives to Development:”

“Since the mid-twentieth century, the idea of ‘development’ has operated as both a cognitive category and a relation of force to remap the terrain marked by the colonial encounter and the condition of post-coloniality. One has to be clear that the grammar of colonialism is in the genetic code of the development project. How could it be otherwise? After all, both capitalism and liberalism, hallmarks of modernity and founts of the development project, were constituted in and through the colonial encounter. Indeed, the very first use of the word ‘capital,’ in the sense of the grounds of capitalism as a new mode of production, was coined in 1766 in the context of capital-intensive though slave-hungry Antillean sugar plantations.

The development project is the latest variant of the 500 year-old project variously called ‘saving native souls,’ ‘the white ma’s burden,’ ‘manifest destiny,’ ‘the civilizing mission,’ and ‘the historical imperative of progress.’ Development is not just a theory about economic development and elimination of poverty, but also an ideological and institutional device to consolidate the domination of the Global North over the Global South.

One can configure the development project as the sum of three gestures. First, it demarcates a site of intervention of power by constituting abnormalities in the anatomy of the Global South. Second, through normalization of development within a knowledge/power matrix, a field of control is demarcated. Social issues are removed from the political realm and relocated as preserves of science to facilitate a regime of truths and norms. Third, institutionalization and professionalization of development at all levels is secured, ranging from international organizations and national planning bodies to local development agencies and NGOs. These institutions – a network of new sites of power – constitute an interlinked global apparatus of development.

We can conceptualize the development project as an institutional apparatus that links forms of knowledge about the Global South with deployment of particular forms of power. Once societies become the targets of these new regimes of power – embodied in endless programs and strategies – their economies and cultures are offered up as new objects of knowledge that, in turn, create new possibilities of assertion of power.

The development project is, above all, a way of thinking. Once consolidated, it determines what can be thought, said, and even imagined. The development project defines a perceptual domain, colonizes reality, and produces particular subjectivities. Development is not only an omni-historical ideological construct and a hegemonic global discourse, it is the primary instrument of cartography of post-colonial imaginary. As a full-service enterprise, with confident notions of time and space, of nature and culture, of society and the individual, of the good and the truth, development is a mechanism through which particular subjects and subjectivities are produced. In the process, and as a result, precluded are other ways of imagining, seeing, doing and living.”

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Perhaps needless to say, Mahmud is aligning himself with the right side of the title’s exclusive coordinating conjunction, suggesting the need for “alternatives to development.” The jargon (which, as such, is unavoidable) strikes me at times as opaque and thus obscure, but I think we can easily capture the gist of the argument, parts or premises of which, apart from the conclusion, I readily support. In keeping with the polemical tone of the piece, I respond here in favor of the left side of the conjunction, thus not abandoning the notion of “development,” but perfectly willing to question its historic capitalist and imperialist presuppositions and assumptions, the nefarious purposes to which it was sometimes put, which includes a dispassionate accounting of its myriad negative and positive consequences: psychological, moral, economic, political, and social. Economic globalization, for better and worse, will not go away, short of the apocalypse, and neither, I believe, will development of some sort. The questions, therefore, revolve around the setting of the terms and conditions of such development, the moral and social criteria intrinsic to our notion of development, and how such development incarnates the democratic dreams and wishes, the egalitarian hopes and aspirations, and the rational desires for justice and self-fulfillment (or eudaimonia) of those subject to and participating in its processes. Indeed, of primary importance is the extent to which the “subjects” of development, that is, those in possession of the common powers and capacities of human agency, are accorded a role in determining these terms and conditions (which may vary in some measure between countries and even to some extent within countries).

In short, I’m in favor of “alternative development” rather than “alternatives to development.” I firmly believe individual and collective development (which must work in synergistic and dialectical relation with one another), both here and around the globe, and construed in terms psychological, moral, social, economic, and so on, is an intrinsically worthwhile endeavor. In other words, we need not, nay, should not abandon the idea of development. In fact, we should commit ourselves to it with a clear conscience,  provided we are moved by the proper motivations…. By definition, this sort of development is capable of embracing, in principle and praxis, an untold number of ways of imagining, seeing, doing and living. What follows are some of the animating assumptions and principal reasons I’ll side with “alternative forms of development,” rather than eschewing development altogether:

A Marxist economist, Meghnad Desai, has given us succinct yet nuanced and accurate assessment of some of the virtues and vices of the capitalism intrinsic to most if not all conceptions of “development:”

“Capitalism is not a kind or a benevolent system. It is the most effective mode of production discovered so far in wealth creation [despite its endemic ‘cycles, with their manias, crashes, and panics’]. It has no overarching objective, since it works through the profit-seeking efforts of millions of capitalists. It generates economic growth, prosperity, and employment as side-effects. It also causes much misery and destruction in its tendency towards incessant change. But over the last two hundred years, it has achieved the largest gain in well-being in all previous millennia. For one thing, many more people are alive now than in 1800 (around six times as many), and they live longer on average—between ten to twenty years longer—than they did then. [….] If length of life can be taken as a crude measure of potential well-being, a billion people living, say, forty years on average in 1800 compared to six billion people living sixty year today speaks volumes for the success of capitalism. In 1800, perhaps two thirds of that billion were poor; today, at most a quarter of the six billion are poor. Yet the reduction of poverty is neither automatic, nor to be taken for granted. [….] Adam Smith was not wrong, however, in saying that the new system of natural liberty imposed the cost of inequality while delivering a universal betterment of living standards. More people have been brought out of poverty in the last two hundred years, especially since 1945, than ever before in history. The very idea that poverty could be eliminated could not have occurred in any precapitalist stage. Capitalism provides the means for eliminating poverty, but these means were not directed immediately, or evenly, in the course of its development.” From Desai’s Marx’s Revenge: The Resurgence of Capitalism and the Death of Statist Socialism (London: Verso, 2002)

China of late provides compelling contemporary evidence that capitalism can make enormous strides in addressing the question of poverty, but it has been purchased at the price of inequality (regional, income, and otherwise). The creation and persistence of new forms of “relative” poverty and inequality, the system’s “manias, crashes, and panics,” and the ecological and environmental problems we face today, are among the more prominent reasons we have to begin, with Marx, to look beyond (in an Hegelian dialectical sense) this system (although Marx had very little to say about socialism and communism, his analytical prowess being devoted to capitalism).

As Gandhi noted, the capitalist system of development brought with it, in Bhikhu Parekh’s words, a conception of private property

“subversive of the social order because it conflicted with the fundamental principles underlying and sustaining it. The customs, values, traditions, ways of life and thought, habits, language and educational, political and other institutions constituting a social order were created by the quiet co-operation and the anonymous sacrifices of countless men and women over several generations, none of whom asked for or could ever receive rewards for all their efforts. And their integrity was preserved by every citizen using them in a morally responsible manner. Every social order was thus of necessity a co-operative enterprise created and sustained by the spirit of sharing, mutual concern, self-sacrifice and yajna [sacred sacrifice or spiritual offering in general]. And its moral and cultural capital, available by its very nature to all members of society as freely as the air they breathed, constituted their collective and common heritage to be lovingly cherished and enriched. The institution of private property rested on the opposite principles and breathed a very different spirit. It stressed selfishness, aggression, exclusive ownership, narrow individualism, a reward for every effort made, possessiveness and a right to do what one liked with one’s property. It was hardly surprising, Gandhi argued, that its domination in the modern age should have atomized and culturally impoverished society and undermined the basic conditions of human development.” See Bhikhu Parekh’s Gandhi’s Political Philosophy: A Critical Examination (1989)

One axiomatic premise, therefore, is that we appreciate the distinction between capitalist development as such, and human development (that former may still in some respects be relevant to the latter, but in the subordinate sense outlined below). 

An alternative form of economic development, that is, one outside the Neoliberal capitalist project, need not abandon the nobler intentions and salutary consequences found in earlier models, be they of colonial or post-colonial provenance or inspiration (in other words, their long-term effects, be they intended and direct or otherwise, were not entirely negative and thus sometimes beneficial). In addition, as Gandhi might have said, the economic criteria and standards of such development should be subordinate to and regulated by man’s moral and spiritual needs, understood in a manner close to if not identical with what Martha Nussbaum has proposed in her list of “basic human capabilities.” Michael Luntley put it this way:

“We must rearticulate the criteria, the goals, that define our agency in the social world and which provide the reference groups which alone can carry the traditions necessary for moral life to proceed. We must rearticulate the authority of the Good. In doing this we must articulate the more specific goals and standards for variety of human institutions we find in modern society and stand these goals in opposition to the market criteria of capitalist success.”

In Development as Freedom (1999), Amartya Sen has begun, I think, to formulate the fundamentals of such a conception of development, one that does not eschew the generalizable virtues of participatory and deliberative democracy while recognizing the importance of human rights: civil, political, social, and economic. Sen’s book should be read in conjunction with at least the following:

• Alston, Philip, and Mary Robinson, eds. Human Rights and Development: Toward Mutual Reinforcement. New York: Oxford University Press, 2005.
• Bardhan, Pranab, Samuel Bowles, and Michael Wallerstein, eds. Globalization and Egalitarian Distribution. New York: Russell Sage Foundation/Princeton, NJ: Princeton University Press, 2006.
• Barry, Christian and Thomas W. Pogge, eds. Global Institutions and Responsibilities: Achieving Global Justice. Malden, MA: Blackwell, 2005.
• Bhala, Raj. Trade, Development and Social Justice. Durham, NC: Carolina Academic Press, 2003.
• Compa, Lance A. and Stephen F. Diamond, eds. Human Rights, Labor Rights, and International Trade. Philadelphia, PA: University of Pennsylvania Press, 2003.
• Cottier, Thomas, Joost Pauwelyn, and Elisabeth Bürgi, eds. Human Rights and International Trade. New York: Oxford University Press, 2001.
• Darrow, Mac. Between Light and Shadow: The World Bank, the International Monetary Fund, and International Human Rights Law. Oxford, UK: Hart, 2003.
• Dasgupta, Partha. An Inquiry into Well-Being and Destitution. New York: Oxford University Press, 1993.
• De Greiff, Pablo and Ciaran Cronin, eds. Global Justice: Transnational Politics. Cambridge, MA: MIT Press, 2002.
• Drèze, Jean, Amartya Sen, and Athar Hussain, eds. The Political Economy of Hunger: Selected Essays. New York: Oxford University Press, 1995.
• Flanagan, Robert J. Globalization and Labor Conditions: Working Conditions and Worker Rights in a Global Economy. New York: Oxford University Press, 3rd ed., 2006.
• Gaventa, John. Globalizing Citizens: New Dynamics of Inclusion and Exclusion. London: Zed Books, 2010.
• Gottlieb, Robert and Anupama Joshi. Food Justice. Cambridge, MA: MIT Press, 2010.
• Held, David. Democracy and the Global Order: From the Modern State to Cosmopolitan Governance. Stanford, CA: Stanford University Press, 1995.
• Miller, Richard W. Globalizing Justice: The Ethics of Poverty and Power. New York: Oxford University Press, 2010.
• Nussbaum, Martha C. Women and Human Development: The Capabilities Approach. Cambridge, UK: Cambridge University Press, 2000.
• Nussbaum, Martha C. Creating Capabilities: The Human Development Approach. Cambridge, MA: Belknap Press of Harvard University Press, 2011.
• O’Brien, Robert, Anne Marie Goetz, Jan Aaart Scholte and Marc Williams. Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements. Cambridge, UK: Cambridge University Press, 2000.
• Santos, Boaventura de Sousa, ed. Democratizing Democracy: Beyond the Liberal Democratic Canon—Vol. 1 of Reinventing Social Emancipation: Toward New Manifestos. London: Verso, 2007.
• Santos, Boaventura de Sousa, ed. Another Production is Possible: Beyond the Capitalist Canon—Vol. 2 of Reinventing Social Emancipation: Toward New Manifestos. London: Verso, 2007.
• Santos, Boaventura de Sousa and Cesar A. Rodriguez-Garavito, eds. Law and Globalization from Below: Towards a Cosmopolitan Legality. Cambridge, UK: Cambridge University Press, 2005.
• Shaikh, Anwar, ed. Globalization and the Myths of Free Trade: History, Theory, and Empirical Evidence. New York: Routledge, 2007.
• Shiva, Vandana. Biopiracy: The Plunder of Nature and Knowledge. Boston, MA: South End Press, 1997.
• Sunder, Madhavi. From Goods to a Good Life: Intellectual Property and Global Justice. New Haven, CT: Yale University Press, 2012.
• Unger, Roberto Mangabeira. Free Trade Reimagined: The World Division of Labor and the Method of Economics. Princeton, NJ: Princeton University Press, 2007.
• Wright, Erik Olin. Envisioning Real Utopias. London: Verso, 2010.

A Stoic Exemplum of Self-Examination

As I am reading yet again Martha C. Nussbaum’s The Therapy of Desire: Theory and Practice in Hellenistic Ethics (1994) in conjunction with my research for the series of posts “on anger,” I thought to pause and share the following passage from Seneca’s De Ira:

“All your senses must be effectively led to a condition of firm endurance, if they are no longer corrupted by the mind—which must be called to account every day. This is what Sextius used to do: at the close of the day, when he retired to his nightly rest, he used to pose questions to his mind: ‘What fault of yours have you cured today? What defect have you resisted? In what way are you better?’ A person will cease from anger and be more moderate if he knows that every day he has to come before himself as judge. What therefore is more wonderful than this habit of unfolding the entire day? How fine is the sleep that follows this acknowledgment of oneself, how serene, how deep and free, when the mind has been either praised or admonished, and as its own hidden investigator and assessor has gained knowledge of its own character? I avail myself of this power, and plead my cause daily before myself. When the light has been removed from sight, and my wife, long since aware of this habit of mine, has fallen silent, I examine my entire day and measure my deeds and words. I hide nothing from myself, I pass over nothing. For why should I hide anything from my own errors, when I can say, ‘See that you don’t do that again, this time I pardon you.’”—Seneca, in De Ira (On Anger)

Nussbaum writes: “There follows an extended example of such minute self-confrontation, in which Seneca shows both the patience and the particularity with which the doctor of the mind or soul approaches his task. In this remarkable passage we see a new attitude to the self being forged.” Nussbaum cites the prominent features of this new attitude, one that bears astonishing resemblance to attitudes and practices in the Buddhist tradition:

[For one is a person with] “rich inner depths, a person who is to some extent hidden from himself until he turns on his doings and thoughts the patient light of medical reason. Seeing the complexity and fallibility of his own acts, seeing those acts as the product of a complex web of highly particular connections among the goodness of nature, the circumstances of life, and the complicated psychological reactions life elicits from the mind, he will learn to view others, too, in this light, as people whose every act and thought is worthy of keen attention, as people whose errors emerge from a highly complex narrative history rather than from a simply evil nature; he will moderate his rage toward their injustices and intensify his commitment to human solidarity and mutual aid.”

Seneca’s teacher was Quintus Sextius the Elder, most likely a Pythagorean influenced by Stoic ideas. In any case, I was delighted to learn the latter was a vegetarian:  “Sextius believed that man had enough sustenance without resorting to blood, and that a habit of cruelty is formed whenever butchery is practised for pleasure” (Seneca, Epistles).

Toward a Manifesto of Inspiration for A People’s Law School

This was provoked by a PrawsBlawg post by Kelly Anders today that asked, “If you had to design a model for a ‘people’s law school,’ what would it contain, and how would it compare to schools that already exist?” I’m not prepared to design a model, but I would like to suggest some items (literature, programs, institutions, commitments, etc.) I think should be essential to the motivation of any such enterprise. What follows came fairly quickly to mind and it’s in no particular order (so I reserve the right to modify the list at a later date):

Austin Sarat and Stuart Scheingold, eds. Cause Lawyering: Political Commitments and Professional Responsibilities.New York: Oxford University Press, 1998.

Austin Sarat and Stuart Scheingold. Something to Believe In: Politics, Professionalism, and Cause Lawyering. Stanford, CA: University of California Press, 2004.

Austin Sarat and Stuart Scheingold, eds. Cause Lawyers and Social Movements. Stanford, CA: Stanford University Press, 2006. 

William P. Quigley, “Revolutionary Lawyering: Addressing the Root Causes of Poverty and Wealth,” Journal of Law and Policy, Vol. 20 (2006): 101-168. Available: http://www.uchastings.edu/faculty-administration/faculty/musalo/class-website/docs/quigley.pdf

Ann Scales, Legal Feminism: Activism, Lawyering, and Legal Theory. New York: New York University Press, 2006.

Larry Lessig’s Commencement Address to the John Marshall Law School, an excerpt and link for which is here: http://www.legalethicsforum.com/blog/2012/06/larry-lessigs-commencement-address-to-the-john-marshall-law-school.html

The People’s Electric Law School (h/t George Conk): As Professor George Conk writes in a forthcoming article, “‘Poverty law,’ women’s rights, employment discrimination, and public education were the foci of legal education at Rutgers. In those two decades [i.e., the 1960s and 1970s] Rutgers-Newark - which we affectionately called People’s Electric - presented a model of engaged legal education that was and is unique.  No other law school to my knowledge has been so thoroughly characterized by a broad progressive social agenda.”

The Innocence Project: http://www.innocenceproject.org/

Therapeutic Jurisprudence (David Wexler and the late Bruce Winick):

Training in restorative justice:  http://www.restorativejustice.org/ 

“CUNY School of Law is the premier public interest law school in the country:” http://www.law.cuny.edu/about.html

Stanford Law School: Three Strikes Project 

Cornell Law School: Labor Law Clinic

LawHelp.org: helps low and moderate income people find free legal aid programs in their communities, and answers to questions about their legal rights.

Sargent Shriver National Center on Poverty Law

Indian Law Resource Center

The Center for Constitutional Rights

The Ella Baker Internship Program at the Center for Constitutional Rights: “CCR created the Ella Baker Summer Internship Program in 1987 to honor the legacy of Ella Baker, a hero of the civil rights movement, and to train the next generation of social justice lawyers. Our program uses a combination of theory and practice to train talented and committed law students on how to work alongside social movements, community organizations, and impacted individuals. Through our program, interns gain practical litigation experience and sharpen their theoretical understanding of the relationship between social change, organizing and lawyering.”

Society of American Law Teachers: SALT

An understanding of the history of the National Lawyers Guild.

A deep familiarity with “legal realism,” Critical Legal Studies, and Marxist approaches to the law.

A Gandhian or karma-yoga-like model of professional responsibility and social service.

An acquaintance with the literature on moral and intellectual responsibility.

An intimate knowledge of the ongoing “access to justice” problems (Deborah Rhode) in our society, especially “the right to effective counsel.”

A profound understanding of the class- and race-based distortions of the criminal justice system.

A profound grasp of the historical, moral, and legal importance of habeas corpus.

An appreciation (for international criminal law) of the meaning of “victor’s justice.”

A Stoic-like commitment to cosmopolitanism.

A commitment to the universal realization of “basic human capabilities” (Martha Nussbaum).

An understanding of the virtues and vices of participatory and deliberative democracy.

A familiarity with the curriculum of “radical history” (utopian, communalist, communist, anarchist, socialist, populist, feminist, countercultural, etc.) exemplified in works like

• Carson, Clayborne. In Struggle: SNCC and the Black Awakening of the 1960s.Cambridge, MA: Harvard University Press, 1981.
• Case, John and Rosemary C.R. Taylor, eds. Co-Ops, Communes, and Collectives: Experiments in Social Change in the 1960s and 1970s. New York: Pantheon Books, 1979.
• Cohen, Robert and Reginald D. Zelnik, eds. The Free Speech Movement: Reflections on Berkeley in the 1960s. Berkeley, CA: University of California Press, 2002.
• Gitlin, Todd. The Sixties: Years of Hope, Days of Rage. New York: Bantam Books, 1987.
• Hunt, Andrew E. The Turning: A History of Vietnam Veterans Against the War. New York: New York University Press, 1999.
• Marable, Manning. Race, Reform, and Rebellion: The Second Reconstruction in Black America, 1945-1990. Jackson, MS: University Press of Mississippi, 1991.
• McMillian, John. Smoking Typewriters: The Sixties Underground Press and the Rise of Alternative Media. New York: Oxford University Press, 2011.
• Miller, James. “Democracy is in the Streets: From Port Huron to the Siege of Chicago. New York: Simon and Schuster, 1987.
• Payne, Charles M. I’ve Got the Light of Freedom: The Organizing Tradition and the Mississippi Freedom Struggle.Berkeley, CA: University of California Press, 1995.
• Piven, Frances Fox and Richard Cloward. Poor People’s Movements. New York: Pantheon, 1977.
• Rosen, Ruth. The World Split Open: How the Modern Women’s Movement Changed America. New York: Viking Penguin, 2000.
• Sale, Kirkpatrick. SDS. New York: Random House, 1973.

Praetorian Politics and Democratic Uprisings in the Middle East

At Concurring Opinions, Professor Tayyab Mahmud has a couple of important blog posts up on the deteriorating political conditions and outlook for the democratic opposition in Egypt. The first, concerns a possible “judicial coup” in Egypt based on the following recent events:

“On June 14, 2012, Egypt’s Supreme Constitutional Court dissolved the country’s first-ever democratically elected parliament and struck down a law passed by this parliament that barred senior officials of the Mubarak era from running for high office. Three days later, on the eve of the first-ever democratic presidential elections, Egypt’s shadowy military council proclaimed an interim constitution that grants the military broad veto powers over legislation, the national budget and foreign policy, and immunity from any civilian oversight. The military council also hand-picked a 100-member panel to draft a permanent constitution.

Popular forces in Egypt quickly dubbed the Court’s action a ‘judicial coup.’ Indeed, in a single stroke the Court has erased nearly all political gains of the year-long popular resistance that made Arab Spring and Tahrir Square household words the world over. The Court also paved the way for usurpation of unbridled power by the military. By doing so, the Egyptian Court has added yet another chapter in the long history of judicial support for reactionary and counter-revolutionary forces throughout the world.” [….] The rest of the post is here.

Mahmud’s second post is about “praetorian politics and free elections:”

“Canonical texts of comparative constitutional law seldom take into account the phenomenon of nullification of election results by extra-constitutional means in praetorian polities. The political drama unfolding today in Egypt is a case in point.

After having dissolved the first-ever freely elected parliament in the country, Egypt’s Supreme Military Council is now withholding the results of the first-ever free presidential election. On June 20th, a commentator in Cairo termed the present situation “the most dangerous 48 hours.” If the history of nullification of election results by the military is any guide, dangerous times in Egypt may extend far beyond 48 hours.

Pakistan (1971) and Algeria (1991) present ominous parallels to the current constitutional crisis in Egypt. In both cases the military refused to honor the results of free democratic elections, and in both cases the result was a bloody civil war with lasting consequences for the polity.” [….] The rest of the post is here.

My comments to the latter (slightly edited) follow:

Re: “Canonical texts of comparative constitutional law seldom take into account the phenomenon of nullification of election results by extra-constitutional means in praetorian polities.”

A few reasons may help account for why this is the case, the first being of course that comparative constitutional law is a fairly new area of study, and the second the fact that such comparisons, up till now at least, have often neglected the Middle East (or both the ‘Arab world’ and the ‘Islamic world’ generally). I know of only one work (there may be others) that treats the question of constitutionalism in the Middle East, namely, Saïd Amir Arjomand’s edited volume, Constitutional Politics in the Middle East: With Special Reference to Turkey, Iraq, Iran, and Afghanistan (Portland, OR: Hart, 2007).

In any case, the use of extra-constitutional means in praetorian polities and the role of the military generally in “transitions to democracy” was studied in the classic four volume work edited by Guillermo O’Donnell (no relation), Philippe C. Schmitter, and Laurence Whitehead, Transitions from Authoritarian Rule, 4 Vols. (Baltimore, MD: Johns Hopkins University Press, 1986/Papers originally commissioned for a conference sponsored by Latin American Program of the Woodrow Wilson International Center for Scholars between 1979-1981). While neither the “Arab world” nor the “Islamic world” was part of this study (Turkey being the one exception), it does provide a good reference or starting point for such studies. As noted in your first post, “Courts in the Global South in particular have more often been instruments to thwart democratic aspirations than protectors of constitutional and human rights. Indeed, praetorian usurpers have repeatedly relied on the courts to secure legal validity and political legitimacy.” The growing body of literature on “transitional justice” also treats praetorian politics and problems, praetorian actors often seeking to avoid being criminally sanctioned for their behavior prior to the transitions to democracy.

Country-specific works, (especially Turkey, but also Iran, Algeria, Egypt, Pakistan [an example of which you cited], etc.) at least discuss the role of the military in democratic and constitutional politics and there are insightful discussions of the role of the military in Arab political thought on “democracy and civil society.” Taking the “political economy” perspective, it’s interesting to note that in the case of Egypt, the Supreme Constitutional Court (SCC) appears to have been created under the Sadat regime in large measure to assuage the concerns of foreign investors wary of direct investment in a country with a legacy of vigorous nationalization of large chunks of the private sector (this is not to downplay many of the beneficial—if only even ‘spillover’—effects, democratically speaking, that came about as a result of the SCC). As Tamir Moustafa points out, “Given that Egypt has remained in a perpetual state of emergency, the Emergency State Security Courts and, most recently, the military courts have effectively formed a parallel legal system with fewer procedural safeguards, serving as the ultimate regime check on challenge to its power.”[1] The role of the “security” apparatus has declined over several decades and thus become more informal, but its continuing economic clout in civil society and the fact that “officers from the military and the Ministry of Interior often serve as provincial governors and mayors of major cities” (Bruce K. Rutherford)[2], assure that it will remain a potent political force, to put it mildly, and as we are now witnessing, for some time.[3] 

All the same, we should not ignore the many historically progressive results of the establishment of the SCC, which Moustafa helpfully characterizes as “bounded activism” or “insulated liberalism.” Whatever independence the SCC did possess was eventually compromised by “court packing” which sought to minimize “political risk” (that the SCC directly and indirectly help to generate) deemed a threat to neoliberal economic reforms. In Moustafa’s words, “The loss of Supreme Constitutional Court independence is an unambiguous example of the tendency of authoritarian regimes to undermine their own institutions at the expense of economic development.” Indeed, the “judicial coup” referred to in the earlier post may simply represent the surfacing of structurally sublimated conflicts, which serves to make clear to all concerned parties the specific democratic and constitutional configuration, such as it is, of the SCC.

The case of Chile may provide us with some reason for hope in Egypt: “Strikingly, the course of the dictatorship in Chile is a story in which a limited number of actors [in this instance, the several branches of the armed forces combined into a military junta] sieze and concentrate extreme powers, enact regulations to regulate their mutual relations, and, in so doing, set off a conflictive process that results in the promulgation of a constitution to further regulate the terms of their association. The Constitution, in turn, sets into operation institutions that subsequently limit the original rule makers, with the peculiar outcome that the military’s immediate political power is eventually dissolved according to procedures contained in its own rules, but with the further result that these rules, with some, though not extensive, modification, live on as the constitutional framework governing life in Chile.” Please see Robert Barros’ essay, “Dictatorship and the Rule of Law: Rules and Military Power in Pinochet’s Chile,” in José María Maravail and Adam Przeworski, eds., Democracy and the Rule of Law (2003): 188-219.

Incidentally, I also came across a nice comparative piece on the “temptations to cut constitutional corners [that] are persistent and real in the face of serious (or seriously imagined) threats to the state,” the case of Egypt falling largely within the parenthetical description: Kim Lane Scheppele, “Exceptions That Prove the Rule: Embedding Emergency Government in Everyday Constitutional Life,” in Jeffrey K. Tulis and Stephen Macedo, eds., The Limits of Constitutional Democracy (2010): 124-154.

Notes & Further Reading:

[1] Please see: Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development (Cambridge, UK: Cambridge University Press, 2007).

[2] Bruce K. Rutherford, Egypt after Mubarak: Liberalism, Islam, and Democracy in the Arab World (Princeton, NJ: Princeton University Press, 2008).

[3] Perhaps the best succinct summary of the historic economic role of the military in Egypt is still found in Clement M. Henry and Robert Springborg’s Globalization and the Politics of Development in the Middle East (Cambridge, UK: Cambridge University Press, 2001): 150-152. There have been lively debates of late as to the precise nature and extent of the military’s economic holdings.

In addition to the articles and books cited above, and more by way of introductory material, please see issue nos. 258 and 262 (Spring 2011 and Spring 2012 respectively) of the Middle East Report published by MERIP.

And:

• Azimi, Fakhreddin. The Quest for Democracy in Iran: A Century of Struggle against Authoritarian Rule. Cambridge, MA: Harvard University Press, 2008.
• Chenoweth, Erica and Maria J. Stephan. Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict. New York: Columbia University Press, 2011.
• Findley, Carter Vaughn. Turkey, Islam, Nationalism, and Modernity: A History, 1789-2007. New Haven, CT: Yale University Press, 2010.
• Ginsburg, Tom and Tamir Moustafa. Rule by Law: The Politics of Courts in Authoritarian Regimes. Cambridge, UK: Cambridge University Press, 2008.
• Le Seur, James D. Between Terror and Democracy: Algeria since 1989. London: Zed Books, 2010.
• Sowers, Jeannie and Chris Toensing, eds. The Journey to Tahrir: Revolution, Protest, and Social Change in Egypt. London: Verso, 2012.
• Stephan, Maria J., ed. Civilian Jihad: Nonviolent Struggle, Democratization, and Governance in the Middle East. New York: Palgrave Macmillan, 2009.

The Supreme Court Follows the Republican Script on Unions, Looks Partisan, and Doesn't Care

Many have suggested that the outcome of the Affordable Health Care case will depend upon whether the Chief Justice would like to avoid the perception that the Supreme Court is a partisan branch of the Republican Party. No evidence of that desire was on display in yesterday’s resolution of Knox v. SEIU, which should have been a boring labor law case about the kind of notice that needs to be provided when the union has a special dues assessment. Instead of confining themselves to the issue presented by the case, the five conservative justices reached out to address two issues not briefed by the parties.

Justice Alito’s opinion for the Court invited changes in a quarter century of settled law in a way that would significantly benefit Republicans at the expense of Democrats. The law goes like this: Members of bargaining units represented by unions need not join the union, but they must pay their fair share of the collective bargaining expenses, so that they will not be free riders or endanger labor peace. On the other hand, these non-union members of the bargaining unit need not pay for political expenditures by the unions, and they can avoid that by indicating that they want to opt out of these expenses.

Alito reaches out in a lengthy discussion to suggest that the opt-out law does not adequately protect First Amendment rights. Instead, non-union members should have to opt in to pay political expenses before unions receive those funds. Changing the default rules would, of course, have a significant effect on the amount of money unions can spend in politics. Alito’s opinion does not rule on the issue, but you would have to be a moron not to recognize that Alito reached out to invite lawyers to challenge opt-out provisions and that the conservative justices are prepared to change the default by constitutional fiat as soon as they get a case.

But that is not all. Alito argues that the free rider justification for compelling non-union members to pay for collective bargaining expenses is difficult to defend. That would leave only the labor peace justification. I think it would be child’s play for the conservatives to argue that the labor peace argument is too speculative to meet a strict scrutiny test. And no lawyer for an employer will miss this. Alito has thus invited a challenge to the long-standing understanding that those who benefit from collective bargaining should pay for the service.

If unions are deprived of funds for collective bargaining from the people they are charged to represent (and they are required to represent all members of the bargaining unit whether or not they join the union) the unions will be significantly weakened. The Chairman of the Republican National Committee could not have written a better script for the Republican cause.

The conservative majority is brazen enough not to care that those who concurred in the opinion and those who dissented observed that the majority had violated court rules and departed from principles of judicial restraint. And the conservative majority is hypocritical enough that in Citizens United and other decisions, it cast aside long standing rules that were designed to assure that corporate political spending like that of unions came from voluntary contributions. Now, thanks to the conservative majority, the system promises to be stacked in favor of big business in ways not before seen in this country.

The Court has the naked power to achieve this. But it cannot command respect, and it does not deserve it.

 

Should Progressives Oppose Obama?

Harvard Law Professor Roberto Unger, who taught Barack Obama jurisprudence and a course on democracy, and also advised him in the 2008 campaign says in an eloquent u tube video that Obama does not deserve to be reelected: "President Obama must be defeated in the coming election. He has failed to advance the progressive cause in the United States." See here.

I agree with Unger’s general criticisms of Obama and almost all of the specifics. But  I do not think Unger sufficiently appreciates the difference between Romney (the candidate of oil, banks, and the lunatic fringe) and Obama. Many of us thought that that Clinton was a disaster for progressives, but are there any progressives who would deny that Bush was far worse? Even if Romney were really a moderate, won’t he have to dance to the demands of the Republican Party which is as far to the right as any in the past half century? Unger concedes that judicial appointments would be significantly different, and this is not a minor concession because the judiciary can erect even more serious barriers to bringing about social change. Moreover, a Romney administration threatens to heighten the suffering of the poor and the oppressed.

Unger’s willingness to have millions undergo years of pain in order to have the Democratic Party have a more progressive message is unaccompanied by a narrative, persuasive or otherwise, about how that will come about in a system in which the system of campaign finance is rigged in favor of the wealthy. Before progressives decide to elect Mitt Romney, we need a more detailed and realistic account of how that would help. I am prepared to accept the view that Obama has betrayed the progressive cause in many respects; I am prepared to accept the claim that he does not personally deserve another term; but not reelecting Obama would be a riverboat gamble – and a losing one at that.    

Drinking Sodas, Appetitive Incontinence, and Public Policy

At PrawfsBlawg, Rick Hills:

“I ask this with love, as a registered Republican: When will my fellow Republicans stop saying silly things against paternalism? My text for this plaintive homily is Mayor Bloomberg’s proposed health code amendment limiting the size of sugary soda pop servings to cups of 16 ounces or smaller. The proposal has been met with angry protests about the nanny state’s intrusions into people's private choices. State senator Tom Davis (Republican, SC) even denounced me as Orwellian for my statement to an AP reporter stating that government had the constitutional power, despite the 14th Amendment, to enact paternalistic regulations controlling the sale of food and drugs.

I am inclined to think that denouncing Bloomberg’s proposal as Orwellian is like ridiculing the Food, Drug, & Cosmetic Act as a Stalinist plot or attacking “no smoking” signs in public buildings as a Maoist re-education campaign. Such hyper-ventilated rhetoric against ordinary regulation is making us Republicans look absurd. So long as government subsidizes healthcare costs, regulations to discourage obesity are society’s self-protection, not nosy paternalism. [….]

Discouraging obesity either through insurance premiums or taxes on sodas (and forcing the purchase of two 16 oz. cups is essentially just a soft-drink tax) is not creating a nanny state: It is avoiding moral hazard by forcing those who undertake risky behavior to pay part of the price of their risk-taking. Despite empty libertarian rhetoric about letting people pay for all of the consequences of their actions, we know that (as Mark the Evangelist might say), the healthcare-subsidized we will always have with us. We will inevitably end up paying for at least some substantial part of at least some folks’ healthcare. So long as such subsidies exist, doing nothing about the effects of soda consumption on obesity is just letting soda drinkers slurp dollars out of their fellow citizens’ wallets. That’s not living free: It is just drinking and dying at the public’s expense.”

Not surprisingly, Rick raised the ire of a few libertarians and, presumably, Republicans, in the comments. I overcame my reluctance to join the fray because Aristotle (and ancient Greek philosophy generally) has been on my mind of late owing to our posts “on anger,” so I thought to proffer an Aristotelian take on the subject, ending with an argument from one of today’s foremost political scientists, Robert E. Goodin, from his classic work, Political Theory and Public Policy (1982). Herewith my comment (slightly edited):

It is revealing to see the heat generated by this particular post and topic: matters of much more urgency and importance receive comparatively little attention. That said, I think the subject matter is indeed important for several and perhaps not so obvious reasons which, accordingly, will take some time to flesh out. I find classical Greek philosophy of some help in this enterprise. Aristotle more or less assumed something like Plato’s triune division of the “soul,” involving rational, spirited, and appetitive parts, all three parts being independent sources of motivation. And Aristotle argued our non-rational desires (which, he believed, have conceptual and propositional structure, hence they contain thoughts about what is ‘good’ or ‘bad’ for oneself independent of reason as such) could and should be harnessed in the service of reason, in other words, non-rational feelings need to be disciplined and controlled, should we aim to realize our capacity for rationality and virtuous behavior, essential elements of our distinctively human nature. Akrasia, or weakness of will, generally speaking, is exhibited by those who habitually let their non-rational desires, especially of the appetitive sort, trump their rational desires (which concern, subjectively and objectively speaking, what is ‘good’ for them). To be sure, non-rational desires have an independent role as a source of value(s), the problem hinging on whether or not that value is accorded rational scrutiny wherein it might find its rightful expression in the person’s life as a whole. The three parts being one-part rational and two-parts non-rational desires, should work in harmony with each other toward the person’s good, such that an appetitive desire, for example, becomes “refined” or “educated,” thus fully integrated with one’s “educated rational judgment of what things are valuable, in what ways they are valuable, and why” (John M. Cooper). The strong or would-be moral agent must master the two forms of non-rational desire, and (strict or ‘unqualified’) akrasia is particularly germane to the “necessary” pleasures of eating, drinking, and sex (other forms of akrasia, for example, those having to do, say, with money or fame, resemble this ‘paradigm scenario,’ to borrow a term from Ronald de Sousa). The weak person who succumbs to mastery by or through their appetites is called incontinent, and Aristotle believed incontinence with regard to spirited desires was less indicative of a defective moral character than any of the forms of appetitive incontinence.

It seems clear that our society is experiencing a plethora of negative (behavioral, health, economic, etc.) effects of sundry kinds from individual behavior that exhibits in grandiose if not egregious ways, appetitive incontinence (of the senses, as well as of the more ‘qualified’ or abstract and metaphoric kind). We might look at Mayor Bloomberg’s proposed health amendment in light of this bigger and disturbing picture, in which case it appears fairly trivial or inconsequential with regard to the larger fight against appetitive incontinence, a fight that in the first place must take place within the individual, albeit with support of family, friends, perhaps even the larger society, including, on occasion, government agencies. Yet even if trivial or inconsequential, the symbolic value of this proposal appears helpful insofar as it brings subject matter into the public fora for discussion, a by-product or spillover effect of which is perhaps an increasing recognition and more precise definition of the larger problem at-hand (no pun intended). I’m not particularly fond of regulations being used primarily for communicating symbolic messages or by way of accomplishing beneficial spillover or by-product (i.e., indirect) effects, but I’m inclined to see this case as an exception if only because it may in fact accomplish at least some concrete changes in behavior that benefit the individuals targeted, and therefore as well the rest of us. At the very least, it helps entrench, I think, a social norm (or norms) associated with the recognition of the myriad personal and social problems that come in the wake of widespread and routine behavioral incontinence with regard to appetitive desires. Such incontinence is hardly confined to the behavior of the lower and middle classes, indeed, I suspect it’s an affliction that plagues, in more insidious and consequential ways, the behavior of the upper crust. This point was made by one Fran Lebowitz, interviewed in the latest issue of The New Yorker (June 18, 2012):

“’These are class issues,’ she said of Bloomberg’s soda scheme. She called the mayor ‘the Monarch of Minutiae.’ ‘Soda is the recreation—the summer house—of the poor. It’s an indulgence, and it’s something they can indulge in.’ Speaking of the Mayor, she said, ‘This man has eleven houses. That’s the self-indulgence of a billionaire.’ […..] ”

Yet as we learned growing up, two wrongs don’t make a right. And, in any case, the poor will hardly be denied their indulgences (such as they are), should they choose them, there being many creative methods folks will fashion to break the letter of the law or simply violate its spirit should it take effect. In any case, encouraging or apologizing for appetitive behavioral indulgence or incontinence does not, in the long run or on the whole, truly aid in reducing or eliminating the miseries or suffering associated with poverty (any more than we should be content with the self-reports of poor rural women who express satisfaction or happiness with their lives when lacking awareness of or belief in alternative possibilities). Still, Ms. Lebowitz made an arresting and, I think, important observation about the class-based orientation of our concerns.

Only ubiquitous forms of individual and collective states of denial, wishful thinking, and self-deception can account for the refusal by many individuals in our society to acknowledge and confront in a meaningful manner the fact that many if not most of us are truly terrible judges of what is in our self-interest (as that idea was first formulated in the history of Liberalism), of what is good for us, and appetitive incontinence merely reflects this fact. Of course we need to let people, in some ample measure, intimately experience the consequences of their mistakes (at least in a way consistent with learning from them), consequences that can be, in the short- or long-term, rather painful. However, at a point when the material and immaterial costs of such mistakes become socially intolerable, the State is surely justified stepping in to the consequentialist benefit of the rest of us. We are, in other words, far weaker individuals than we care to confess or admit, and yet that weakness is not without possible address, and at least one of the enduring reasons for government is to help us when we are considerably less than rational, indeed perverse, in our preferences, owing to myopia, akrasia, a failure to exploit economies of scale involved in self-realization or to grasp the meaning of diminishing marginal utility in consumption, hyperbolic (time) discounting, procrastination, what have you. The irrationality, incontinence, denial, and so forth that afflicts us can be seen as one reason why proposed legislation and regulation (e.g., the American Social Security Act or the British National Health Service) is often vigorously opposed ex ante for reasons that, post facto, can barely be believed some years later (looking backwards, they seem patently ignorant or silly).

With Robert E. Goodin, we might formulate Bloomberg’s proposal in terms of the model of “retrospective rationality,” which justifies legal interference “on the grounds that the individuals concerned cannot adequately anticipate [like cigarette smokers] their future [and non-perverse] interests.” Those with inordinate or incontinent appetites, behaviorally expressed, for instance, in the excessive consumption of soft drinks, are likely to believe their present pleasures or gratification far outweigh any possible future pains or health risks thus, like smokers, “lack[ing] a full and vivid awareness of the pleasures and pains of the alternative outcomes:”

“’While [the smoker] may antecedently suppose that the pleasures of tobacco outweigh the risks of pain, there is every reason to suppose he would think otherwise should he contract cancer—not just in the sense that anyone who gambles and loses wishes he had never gambled at all, but more importantly in the sense that he had badly underestimated the pains associated with losing the gamble. Policy makers who foresee this preference shift would, following retrospective rationality, be perfectly justified in prohibiting, limiting, or discouraging smoking.”

Now we need not imagine the hazards associated with excessive soda consumption as equivalent to smoking to appreciate the logic of this argument, which strikes me as more than an analogy and thus applicable to the instant case.

References & Further Reading:

• Andreou, Chrisoula and Mark D. White, eds. The Thief of Time: Philosophical Essays on Procrastination. Oxford, UK: Oxford University Press, 2010.
• Bicchieri, Cristina. The Grammar of Society: The Nature and Dynamics of Social Norms. Cambridge, UK: Cambridge University Press, 2006.
• Bicchieri, Cristina and Muldoon, Ryan, “Social Norms,” The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/spr2011/entries/social-norms/ .
• Cooper, John M. Reason and Emotion: Essays on Ancient Moral Psychology and Ethical Theory. Princeton, NJ: Princeton University Press, 1999.
• Elster, Jon. Alchemies of the Mind: Rationality and the Emotions. Cambridge, UK: Cambridge University Press, 1999.
• Elster, Jon. Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints. Cambridge, UK: Cambridge University Press, 2000.
• Frank, Robert H. Passions Within Reason: The Strategic Role of the Emotions. New York: W.W. Norton & Co., 1988.
• Goodin, Robert E. Political Theory and Public Policy. Chicago, IL: University of Chicago Press, 1982.
• Holmes, Stephen. Passions and Constraint: On the Theory of Liberal Democracy. Chicago, IL: University of Chicago Press, 1995.
• Widdicombe, Lizzie. “Fluid Ounces,” The New Yorker, June 18, 2012: 26-28.

Please note: It perhaps goes without saying, but I reserve the right to close comments and will delete comments that don’t meet a minimal standard of blogging etiquette (based on my discretion and judgment). Moreover, comments are expected to stay on point. I find myself one with Marc DeGirolami at the Mirror of Justice blog:

“I have decided to take a more involved role in moderating comments in this and my future posts. I will delete comments which make no effort at all to respond to and engage in an intelligent way with the substance of my post. I will also delete comments which are snide, snarky, or not respectful either of me or of the other people who have commented thoughtfully on my posts.”

Marc also writes, “sometimes the comments to my posts simply use my posts to deposit some extraneous squirt of a thought that has nothing to do with what I am talking about. And sometimes the comments can be snide or sarcastic or otherwise unhelpful. My new policy will be to delete those comments, sans mots, as it were. If this is upsetting, I commend you to the plenitude of the Internet, where your thought and its manner of expression will surely find a home.” While I have not experienced the frequency of “extraneous squirts of thought” that Marc has, I have adopted this policy here as well.

Indic Philosophical Schools: A Basic Bibliography

 

As a “basic” bibliography, this compilation for Indic philosophical schools is far from exhaustive. Not a few English translations of important texts are missing, but references to same will be found in the bibliographies of the relevant studies. The division between āstikadarśana (‘visions of orthodoxy’) and nāstika (‘heterodox’) schools is a conventional characterization accepted by both sides of the conjunction. The former is comprised of the Nyāya, Vaiśesika, Sāmkhya, Yoga, Mīmāmsā, and Vedānta philosophical schools (bear in mind a few of the schools are further divided from within: e.g., there are, technically, ten schools of Vedānta, although three main ones), while the latter designation refers to Jaina, Buddhist, and Cārvāka philosophies. I have more comprehensive bibliographies for both Hinduism and Buddhism (and ‘Chinese philosophies’ for that matter) available at this blog (the latest versions are available upon request).

In correspondence, Professor Mohan Matthen kindly suggested this list would be more helpful were I to divide it into “problem” areas, by which I take it he meant according to the reigning division of intellectual labor in professional philosophy: logic, epistemology (in the Indic context, largely under the heading of ‘perception’), ontology, ethics, metaphysics, philosophy of mind (e.g., consciousness, ‘mind-body’ issues, even personal identity), and so on. While that no doubt is true, there are simply too many titles that don’t fit into one (or, they fit into more than one) of these categories, even though contemporary works in Indic philosophy increasingly evidence a willingness to treat their topics within these rubrics. Perhaps this is something worth attempting in a later draft of the compilation. For now, I trust readers can for the most part and with not too much trouble identify titles that fall under the relevant “problem” areas in which professional philosophers discuss this material.

That said, we should keep in mind that “philosophy” here is typically within the larger practical and metaphysical context of religious worldviews, hence the overarching aim or end revolves around spiritual notions of “liberation” or “freedom,” what in the Western theistic traditions falls within the compass and concerns of soteriology. We might fairly describe most of these worldviews as dedicated to practicing philosophy in a manner quite similar—if not in many respects identical—to the “therapy of desire” common to the Hellenistic ethical schools: Aristotelian, Epicurean, Skeptic, and Stoic, studied by Martha Nussbaum (the medical analogy is prominent in Buddhism as well). Indeed, in ancient Greek philosophy generally, philosophy is part and parcel of a “way of life,” and thus, in theory, is meant for those with the requisite temperament and training, in other words, and at least in principle, it is intended for anyone having attained the age of reason. As John M. Cooper writes in his latest book, Pursuits of Wisdom: Six Ways of Life in Ancient Philosophy from Socrates to Plotinus (2012), “Over most of the one thousand years of philosophy in ancient Greece and Rome, philosophy was assiduously studied in every generation by ancient philosophers and their students as the best way to become good people and to live good human lives.” Philosophy as a “way of life,” perhaps needless to say, is not the conception that rules the practice of modern and contemporary philosophy.

I welcome notice of errors and title suggestions.

Thanks again to Jim Chen for formatting this list so as to make it available online.

On Anger (with apologies to Seneca): Part 2

(Our first installment is here.)

Peter J. Vernezze is right, I think, in asserting that “Most of us tend to be Aristotelians when it comes to anger.” In other words, what we’ll loosely label the Aristotelian view, well captures the intuitive, or spontaneous, or unreflective beliefs many if not most of us adhere to about anger. Even the precious few among us who are prone to episodic bouts of sincere self-examination or even temperamentally reflective about anger are likely to subscribe to at least something like, if not the, Aristotelian view. And not surprisingly, the Aristotelian view finds articulate support in contemporary philosophy, keeping in mind that Aristotle does not leave us with a systematic or analytic account of the emotions (pathē) in his ethical writings, although we might, with a Jon Elster, Martha C. Nussbaum, or John M. Cooper, reconstruct the outlines of such a theory from his ethical works and especially the Rhetoric, the latter the source for most of what he has to say about “the emotions” (and only a fairly small number at that). Any such reconstruction, as Cooper has made clear, must draw upon a “closely knit family of psychological concepts: those of happiness (eudaimonia), virtue (aretē), practical wisdom (phronēsis), action (praxis), state or habit (hexis), desire (orexis), pleasure and pain (hēdonē and lupē [the latter can refer to not only bodily pain, but all manner and degrees of negative mental response and attitude, in which case it comes to the meaning of dukkha/duhkhā or ‘suffering’ in Buddhism]), [and] choice or decision (prohairesis)….” It is in the light of such a moral-psychological reconstruction (within the larger ambit of ethical and political theory) that we might find ourselves inclined to endorse Aristotle’s views on anger as rationally defensible or eminently reasonable. No doubt one of the principal attractions of “virtue ethics” today alongside Kantian-inspired and utilitarian or consequentialist theories is this centrally robust inclusion of moral psychology. In fact, a prominent role for moral psychology is a defining feature of all three of the philosphical approaches to anger we’ll examine.

Vernezze provides us with a succinct and accurate summary of the Aristotelian approach to anger:

“While [Aristotle admits] that uncontrolled anger is harmful and ought to be avoided…anger is a good thing. An individual who demonstrates the proper amount of anger is said by Aristotle to possess ‘good temper,’ which consists in being angry ‘at the right things and with the right people’ for the right amount of time [more precisely: ‘at the right time, and for the right length of time’]. This level of moderation with respect to anger—neither too much nor too little—is one of the ethical virtues and as such is a prerequisite in Aristotle’s scheme for attaining eudaimonia or happiness. Hence, without a proper level of anger one cannot be a fully flourishing human being. Indeed, according to Aristotle, those who are not angry at the right things they ought to be angry at are thought to be fools.”

The famous Aristotelian doctrine of the mean cited here with regard to anger means that, given the right circumstances, it may be perfectly appropriate to get quite angry, and thus the formula “neither too much nor too little” can be misleading if we fail to properly consider the determinate part played by circumstances or situations, including “calculation” of the consequences of our actions. Richard Kraut explains:

“The right amount is not some quantity between zero and the highest possible level, but rather the amount, whatever it happens to be, that is proportionate to the seriousness of the situation. Of course, Aristotle is committed to saying that anger should never reach the point at which it undermines reason; and this means that our passion should always fall short of the extreme point at which we would lose control. But it is possible to be very angry without going to this extreme, and Aristotle does not intend to deny this” [emphasis added].

Put differently, “too much or too little” depends, as Richard Sorabji says, on “who we are [our character, for example, as well as our social standing or status], on the occasion, on what and whom our emotion is directed at, on the likely outcome and manner of reacting.” It is worth noting that some negative emotions, like spite, shamelessness, and envy (including what today we call Schadenfreude), are thought by Aristotle to be intrinsically bad (not unlike the Stoic or Buddhist characterizes anger), and thus the doctrine of the mean does not apply to them. Aristotle adds that the person who fails to get angry at things he ought to get angry, seems to be “insensible and to feel no pain,” moreover, he lacks a sense of honor insofar as he is not the sort of person who stands up for himself when insulted, or overlooks insults made to those close to him.

In the Rhetoric, Aristotle speaks of the man who feels anger, and hence pain (see the bracketed comment above for how Aristotle used the term ‘pain’) as well, as a result of being deliberately—and undeservedly—slighted, the pain being of the kind we generally feel when our desires are frustrated, in the instant case, the desire to appear to or be known and regarded by others in a certain way, held in esteem for example, or treated as possessing some sort of dignified standing or self-regard worthy of respect. There is some evidence in the Rhetoric that Aristotle also saw pain as a pre-existing state of mind which (pre)disposes one to become angry. Lack of due recognition, acknowledgment, regard, or respect may occur, for example, through mocking, jeering, laughing, insulting, or slighting. To be slighted is to be treated with contempt, spite, or insolence. Failures of esteem acknowledgment or due recognition amount to violations of our (sense of) inherent dignity that we possess by virtue of our moral status as human persons or our legal standing as citizens of the polis. Such slights or insults to our proper self-regard or pride in ancient Greece fell under the heading of violations of honor, especially in the case of “great-souled people,” the honor in accord with their “real worth,” even if such persons did not, in the end, “view honor [as such] as a terribly important thing.” As Michael Stocker writes, “Aristotle’s depiction of anger and those who get angry shows us men [and only men] who are concerned with their importance, dignity, and with the honor and respect all or some others owe them.”

Yet it is not only pain that accompanies anger but pleasure too, for belittlement of oneself or those close to one brings in its wake the “prospect of revenge,” “for it is pleasant to think that one will achieve what one seeks, and nobody seeks those things that are obviously impossible for him [?!], so that the angry man too aims at something that is possible for him,” namely, revenge. And this pleasure is not the result of acting on the desire for revenge but comes merely from the thought that surrounds its contemplation, the entertainment of the prospect of revenge. Aristotle goes so far as to claim that “no one is angry with someone who it seems impossible to avenge,” and, although “nobody seeks those things that are impossible for him,” Elster quotes William Fortenbaugh to the effect that Aristotle “does not deny that [an angry] man may on occasion be in a hopeless position and either not realise it or cling to some irrational fantasy of safety or revenge,” in which case anger accounts for the formation of an irrational belief in the possibility of revenge. Elster reminds us that Aristotle typically associates an emotion—and therefore not just anger—with pleasure and pain, while “modern writers tend to think of an emotion in terms of an exclusive disjunction: pleasure or pain.

In sum to this point, for Aristotle, anger is caused by two beliefs: the belief that the other insulted or belittled me (he speaks of contempt, spite, and insult as ‘three forms of belittlement’), and the belief, in the standard case, that I can take revenge. While we cannot here attempt a detailed critique of this or that aspect of Aristotle’s views, with Elster we might “wonder…whether we cannot feel angry even when there is no prospect of taking vengeance,” which brings us back to Fortenbaugh’s remark that Aristotle envisioned a person in a state of self-deception or denial in this regard, or the possibility that the lack of a realistic prospect for revenge causes the formation of a fantasy of same, in which case we are getting close to if not on the terrain of psychoanalysis. Furthermore, Elster plausibly argues “mere desire-frustration without intent to slight can also trigger anger, [and] it is less likely to give rise to the desire for revenge.” And while I think “desire-frustration” can give rise to anger, it perhaps more commonly or in the first instance prompts irritability, annoyance, disappointment, despair, and the like, all of which might—and thus need not—lead to anger. And simple desire-frustration begins to move us away from anger as an “intensely social emotion” (Elster), as it was for Aristotle, the exemplary cases “involv[ing] the triadic relation of being slighted [by another] before an audience.” 

The central role of “slighting” and the “desire for revenge” in Aristotle’s account brings Elster to consider the possibility that his notion of “anger may be a different emotion from what we call anger, and [is] more accurately captured by the term ‘wrath.’” This does raise the question of the precise relation of anger to kindred emotional states and dispositions like resentment and indignation or, of states and dispositions of greater emotional intensity, like hate and rage (‘outrage’ being an expression of intense indignation). Disgust is sometimes mentioned (e.g., by Ben-Ze’ev) as possessing genetic family resemblance to anger as well. We won’t examine these other emotions and attitudes, save hatred (in our next post), as an analytic and phenomenological comparison with hate is important given that anger and hate are often treated together (or fairly close together) in Buddhism.

The central role of slighting and desire for revenge moves Stocker to likewise consider the possible difference between what we mean by anger and the ancient Greek term orgē. Stocker avers that there is “some evidence” that Aristotle’s “men” are suffering “narcissistic wounds,” that they are probably narcissistic (not necessarily in a pathological sense), “their society and social arrangements…allowing, perhaps fostering, narcissism:” “Narcissists are unable to sustain self-respect and self-regard. They need others to assure them of their goodneess, that they are the way they would like to be.” Stocker argues that the Aristotelian model of the angry man is “constituted by a desire rising to the level of a demand, that he be a center, if not the center, of attention, concern, and understanding….”

Our next post will look at the role of what Plato called the “spirited” part (thumos) of the triune soul in the Aristotelian analysis of anger; at discussions of anger by philosophers sympathetic to Aristotle’s treatment; the relation of anger to hate; and anger as a justified emotional response to social injustice and simultaneous or subsequent motivation deemed intrinsic to or essential for the struggle to realize justice.

[A list of ‘references and further reading’ will be appended to the final post in the series.]

Municipal Eminent Domain Proceedings for Underwater Mortgages

Dear Friends, I've been a bit buried of late by an initiative about which I had to keep mum for a while, but which now finally can be made public. It involves use of municipal eminent domain authority, financed by private investors, to solve at long last that host of collective action problems which stand in the way of resolving the nation's still dragging underwater mortgage crisis at long last. As use of the term 'collective action problem' suggests, even solutions that literally benefit all - creditor, debtor, and innocent third party alike - are blocked unless we are able to find some duly authorized collective agent able to act in effect on behalf of all parties. I believe that municipalities are the necessary agents, for reasons adduced in a full article explaining and justifying the plan. You can read that full article, and more about the plan, including press, here: http://www.lawschool.cornell.edu/spotlights/Hockett-Reveals-Plan-to-Address-Underwater-Mortgage-Loans.cfm. I will be very eager to hear your thoughts.

Many thanks,

Bob

Romney Wants Fewer Police, Fire Fighters, and Teachers

I naively thought that when Republicans asked for less government to help the American people, they did not focus on the fact that less government means fewer police, fire fighters, and teachers. But I was wrong. Romney recently made this connection explicit. He says that having fewer of these important public servants is the message of Wisconsin and would help the American people. (I suppose he thinks these workers are not part of the American people). Could this possibly have been scripted? Does the Romney campaign think this is a message with appeal outside the confines of lunacy within the Tea Party. Listen to what he has to say here.

Selling One’s Soul…(and not just to the devil)

At PrawfsBlawg, a few of us had fun with a post by Howard Wasserman in which he relates a story from a podcast in which a man sells his soul to another man for $50. Howard assures us that he is “not a contracts person,” “nor could [he] possibly play one on TV.” All the same, he asks whether such an agreement might be enforceable. I too am not a contracts person, although I did enjoy, as you’ll learn below, viewing this as a “thought experiment.”

Among the comments, we read:

“I’m going to cheat and say contracts to sell one’s soul are unenforceable because they violate public policy.”

“I’d say no, for pure evidentiary reasons: how would either party, let alone the court, even figure out how to figure out whether the soul was delivered?”

“[It] [m]ight even be more interesting to cook up some kind of establishment clause abstention doctrine.…”

“If there is a soul, and assuming we’ve gotten past the aforementioned evidentiary issue, how does one prove it was one’s own to sell? What if one’s soul is held only in trust, say, belonging rather to (i.e., owned only by) God?

Again, prior assumptions granted, I would think the court might…find this contract to be (substantively) unconscionable (one means whereby to get around the traditional refusal or reluctance to inquire into the adequacy or fairness of consideration), the unconscionability doctrine having all the virtues associated with vagueness and lack of formality, wherein discretionary ethical judgments can fill the void left where rules prove woefully inadequate with regard to equity or justice.

And, having gotten past all that, or setting all that aside, what if the person dies before performance, is death an excuse for nonperformance (the soul being thought to survive the body)?” [This comment is courtesy of yours truly.]

In addition, and not surprisingly, Jeff Lipshaw reminded us of the Faust tale, including later versions incarnate in the musical comedy Damn Yankees and an episode of the Twilight Zone, which prompted me in turn to mention the 1941 film, The Devil and Daniel Webster, which also goes back to Faust, although more immediately, as a short story by Washington Irving: “The Devil and Tom Walker,” only to be reworked yet again by Stephen Vincent Benét in short story form as well, with the aforementioned title.

The most recent comment proclaims—or argues—as follows:

“Void for want of consideration. Even assuming there is such a thing as a soul, there is no reason to think it is property. That is thinking back to first principles, property generally consists of the right to exclude, the right to use, and the right to transfer. Neither one, nor two has any application to the soul. It is meaningless to talk about excluding a person from your soul. If it is possible to make use of a soul, it is not possible to transfer that right (or at least I don’t know of a way). Lastly, there is no reason to think the soul is transferable in any meaningful sense since “owning” a soul confers no substantive rights. In theory, you could sell your soul an infinite number of times since it gives no rights to the parties to whom it is transferred, and certainly no rights that conflict with your rights in your soul. Thus, the transferor suffers no legal detriment, thus no consideration.”

To which, I responded:

“If the soul is intrinsic to the notion of personal identity, then we might imagine at least some folks, but especially theistic libertarians (as ‘substance dualists,’ in which each person is, after Plato, just a soul, ‘related to a physical body like pilot to ship,’ or, composed of ‘soul and body’), as inclined to think of the soul as “property,” literally or metaphorically, given the libertarian principle of self-ownership, which says that “each person enjoys over herself and her powers, full and exclusive rights of control and use, and therefore owes no service or product to anyone that she has not contracted to supply” (G.A. Cohen). In other words, it is self-ownership that generates the right over our bodies and powers, bodies and powers dependent in the first place upon souls. Cohen elaborates this thesis of self-ownership: “each person possesses over himself, as a matter of moral right, all those rights that a slaveholder has over a complete chattel slave as a matter of legal right, and he is entitled, morally speaking, to dispose over himself in the way such a slaveholder is entitled, legally speaking, to dispose over his slave.”

Again, and therefore, if the soul is intrinsic to the theistic libertarian’s conception of personal identity, the “self” signifies that “what one owns and what is owned are one and the same, namely, the whole person.” In sum, a theistic libertarian expresses a principled and unqualified commitment to freedom of and to contract, perhaps owing to the fact that, historically, the (legal) formalization of the mutual recognition of equally free subjects serves to animate otherwise fairly lifeless or abstract conceptions of self, subject, or soul! In which case, we can imagine our theistic libertarian contracting to sell her soul....”

I trust you’ll take this playful thought experiment in the spirit (of summer?) in which it has been proffered.

Addendum: We might therefore argue that if one is not a capitalist in our society, and thus compelled to sell one’s labor power in a commodified labor market (the society being organized so as to first meet the needs of ‘capital’), one is, in effect, selling at least a part of one’s soul, as the working person cannot be allowed to live as an individual or collectively in a way that interferes with the basic economic structures for the realization of profits, in other words, the worker cannot be allowed to transcend or trump the basic mechanisms of the labor market. In a capitalist democracy, the (‘at-will’) employment contract is one in which the two parties possess grossly disparate bargaining power, exemplifying what’s called an “adhesion contract.” Even Adam Smith appreciated the fact that employees, qua individuals, lack significant bargaining power relative to employers owing to their ownership of capital. The only conspicuous constraint on this bargaining power would arise under (idealized) conditions of full employment.    

On Anger (with apologies to Seneca): Part 1

Although emotions punctuate almost all the significant events in our lives, the nature, causes, and consequences of the emotions are among the least understood aspects of human experience. It is easier to express emotions than to describe them and harder, again, to analyze them.—Aaron Ben-Ze’ev

This is the first in a series of several posts in which I’ll attempt to introduce the “hot” emotion or “vehement” passion of anger from philosophical and moral psychological perspectives found in several different worldviews. I was moved to explore these historically prominent views on anger in light of an earlier comment thread on this blog prompted by Michael Perry’s post on a panel discussion, “Peace Within,” at the Newark Peace Education Summit in May of last year.

The first approach we’ll examine (in our next post) is best termed “Aristotelian,” although some of the philosophers discussed under this heading are not avowedly Aristotelian qua philosophers, yet they may generally endorse or subscribe to the Aristotelian (or something close to the Aristotelian) position on anger (orgē). At the very least, they differ markedly from the Stoic and Buddhist approaches to anger, the other two worldviews that will complete our treatment of this particular emotion. The Stoic and Buddhist positions on anger are fairly “radical,” at least insofar as they are correctly characterized as counter-intuitive and uncommon, although similar perspectives can be found in Judaism, Christianity (especially Catholicism), and Hinduism. I’ve chosen the Stoic and Buddhist treatments because they provide the clearest and starkest contrast to the Aristotelian model.

As both a prelude and propaedeutic to our comparative discussion, I want to outline a few conceptual, analytical, and phenomenological assumptions and propositions about the emotions generally. As throughout this series, I’ll be relying on the philosophical labors of others. In other words, I’m not attempting to proffer anything original or creative from my end, although I won’t hesitate to state where I stand vis-à-vis the competing views under examination. And while we’ll draw primarily upon philosophy in what follows, I agree with Jon Elster that, at least “with respect to an important subset of the emotions, we can learn more from the moralist, novelists and playwrights than from the cumulative findings of scientific psychology.” Elster further notes that “Although there is no clear boundary line between the moralists and the moral philosophers…their concern is more with moral psychology rather than with morality as such.” This is certainly true of moral philosophy after Hume in the West, but early Greek philosophers, from Plato and Aristotle to the Hellenistic philosophical schools in Greece and Rome: Peripatetic, Neo-Platonic, Skeptic, Epicurean, and Stoic, did not neglect moral psychology, indeed, it was an integral and often prominent part of these moral and ethical philosophies, as it is in Buddhism. And I think we can appreciate this on its own terms even if we believe in the necessity (with regard to conceptual clarity) of the cognitive and professional division of labor that today exists between philosophy and psychology, a division of labor that becomes pernicious when moral psychology fall between the cracks.

In his oft-cited work on the emotions, Alchemies of the Mind: Rationality and the Emotions (1999), Elster looks at the emotions in terms of six features: 1) bodily arousal; 2) physiological expression; 3) cognitive antecedents; 4) intentional objects; 5) valence (pleasure-pain); and 6) action tendencies. In what follows I’ll largely ignore the first two items in the list, and although the other features will be important, the results will be far from the analytic perspicuity, sophistication, and detail with regard to these elements that mark Elster’s work. The late Robert C. Solomon wrote that “we live in and through our emotions,” a perhaps banal observation to some, but I suspect we have yet to adequately appreciate the existential and psychological truths incarnate in that statement. Solomon elaborates:

“[Emotions] are sometimes, perhaps even often, strategies for getting along in the world. They are a means of motivating, guiding, influencing, and sometimes manipulating our own actions and attitudes as well as influencing and manipulating the actions and attitudes of others. [Wollheim argues that motivation is, strictly speaking, the prerogative of desire, as an emotion will lead us to form desires, and these desires, conjoined with beliefs, are what cause us to act.] [….] [Moreover], we are to a significant extent responsible for our emotions, something we often deny for the most self-serving of reasons, to make excuses for ourselves. [….]

The idea that our emotions are strategies suggests that the perspective in which we learn the most about emotions is in the second person, in personal interaction and exchange. Thus anger (and other emotions) is (are) not so much in the mind (nor just in the body or brain) so much as they are out there in social and interpersonal space. Anger, and most of our emotions, usually arises with and in reaction to other people. Ronald de Sousa has captured this social learning aspect of emotions in a provocative and fertile phrase, ‘paradigm scenarios.’ We learn to be angry, whatever the underlying neurological and hormonal machinery, in social interaction. And what we learn has a lot to do with the seeming appropriateness of the circumstances.”

Without getting into the “internalist/externalist” debate and other contentious issues in the philosophy of mind, I want to qualify what Solomon says above insofar as I think he comes close to assuming or making something like a genetic argument here (which, to be sure, need not be fallacious): the fact that we learn about anger in “social and interpersonal space” (one reason Peter Goldie speaks of making sense of emotional experience only by way of its ‘embeddedness’ in ‘narratives’) does not preclude the possibility that anger still is, in several and very important respects, a matter of what is, so to speak, “on” or “in” our minds (indeed, some—especially Wittgensteinian-inspired—theories of ‘the mind’ encompass in large measure this social dimension). We therefore, and rightly, speak of “internalizing” what we have learned. And we need only think of how we learn to moderate our expressions of anger or overcome predilection for same: this typically involves self-examination, personal reflection, and a “therapy of desire” in the Buddhist or Stoic sense (in Wollheim’s words, ‘emotion rides into our lives on the back of desire’), in other words, mental exercises or a therapeutic regimen of some sort (what the Buddhists term ‘mind-training’). To be sure, such exercises or therapies will be tested in the crucible of everyday life, but the primary focus is on the mind as such. In short, how we learn to be angry or about anger is not necessarily determinative or indicative of the nature of anger as an (often volatile) emotion. As Solomon himself would say, emotions like anger structure the way we perceive, conceive, and evaluate things in our world, and these are by definition mental (or ‘intentional’) activities, however much they are of or about objects in our external and internal worlds: a thing, person, event, action, or state of affairs (as in nos. 3, 4, and 6 of Elster’s list above), objects, furthermore, that may or may not exist in the conventional sense (e.g., a Kleinian phantasy). The morally and psychologically salient aspects of the emotions require a keen understanding of the nature of mental states and mental dispositions (the latter underlying the former), of the meaning, makeup, and roles of beliefs and desires, of knowledge, imagination, memories, inhibitions, habits, virtues and vices: sundry cognitive, affective, and volitional powers and skills. Richard Wollheim has explained in some detail just how such general properties as intentionality, subjectivity, and grades (or levels, states, forms) of consciousness qualify these mental phenomena.

With Robert C. Roberts, we’ll make the assumption that emotions are directly and indirectly implicated in the “the ‘moral’ character of our lives” in a manner that is “pervasive and deep.” Emotions are capable of determining the identity of our actions, given their intrinsic connections to action, character, and relationships. A set of basic propositions about the emotions drawn largely from Roberts’ Emotions: An Essay in Aid of Moral Psychology (2003), and Michael Stocker’s Valuing Emotions (1996), but gleaned also from a few other philosophers, will serve as a conceptual backdrop by way of fundamental assumptions and premises for our study:

1. “The role of emotion is to provide the…person with an orientation, or attitude to the world.” (Wollheim)
2. [E]motions can aid in the discovery of value. (Stocker)
3. “[P]eople’s characters and their values can be revealed by emotions.” (Stocker)
4. “[E]motions reveal not just our values and evaluations but much of our interior and exterior worlds….” (Stocker)
5. “Emotions may show valuings rather than value: how a person values something, not the value something has or the value the person takes it to have. Sometimes people have emotions that contain and reveal valuings, not values; and sometimes people have emotions that reveal a lack of valuing, even in the face of acknowledged value.” (Stocker)
6. “Some emotions involve…fantasy valuings; and, inspired by the Philebus, false valuings,” hence such emotions are called “fantasy or false emotions.” Stocker uses the example of Tolstoy’s Ivan Ilyich to illustrate how false or fantasy emotions can render large portions of a life, or even an entire life, “inauthentic.” This enables us to better understand Ilyich’s “disquiet” about his life, “about the truth and falsity of his leading values and emotions.”
7. “Emotions can be evaluatively accurate and informative, and indeed more accurate and informative than reason and belief….” (Stocker)
8. Emotions help motivate us. (Stocker)
9. “Life like ours would be impossible without emotions.” (Stocker)
10. “Emotions are paradigmatically felt, but emotions may occur independently of the corresponding feeling, and the feeling of an emotion can [as in no. 5 above] be nonveridical, illusory.” (Roberts)
11. “Paradigm cases of adult human emotions take ‘objects.’” (Roberts)
12. “Emotional objects are typically situational or composite, with unequal and shifting focus on the various elements of the situational object.” (Roberts)
13. “It is possible to have emotions without being able to articulate (all of) their content; some of the content may be nonpropositional.” (Roberts)
14. “Many types of emotion are motivational in the sense that they involve a desire to perform characteristic types of actions, but not all emotions are motivational in this sense.” (Roberts)
15. “Emotions come in degrees of intensity.” (Roberts)
16. “Expression of an emotion in behavior and action sometimes causes an emotion to subside, but sometimes expression intensifies and/or prolongs the emotion.” (Roberts)
17. “Emotions, like actions, are subject to moral praise and blame.” (Roberts)
18. “Emotions do typically ‘assert something about a situation, about its character (what kind of situation it is), and about its importance to the subject. But what the emotion ‘says’ is not always agreed to by the subject of the emotion, and it is that agreement would be required for the emotion to be a judgment of the subject. Speaking metaphorically, we might say that the emotion makes a judgment (a proposal about reality); but this ‘judgment’ is just the appearance or phantasia.”
19. “Emotional pretense can take two basic forms: veil and mask, that is, hiding an emotion one feels and showing an emotion one does not feel.” (Ben-Ze’ev)
20. “Nothing is more immediate to us than our own emotions, but nothing about us is more prone to self-deception, suppression, lack of recognition, and even straightforward denial than our emotions.” (Solomon)
21. “[W]e cannot fully make sense of the emotional experience without taking into account the larger narrative of which it is a part,” [including traits of character]. (Goldie)
22. “[O]ur emotions can be educated.” (Goldie)
23. “[O]ur capabilities for emotional experience are significantly developmentally open or plastic (a notion which comes in degrees). To be developmentally open is to be open (to some degree) to moulding by culture and the environment. I put this forward as an alternative to a view which I call the avocado pear conception of the emotions: the view that what is evolved in human emotional capabilities is, in some sense, ‘hard-wired,’ and that it is only the ‘softer’ outer element which is culturally influenced.” (Goldie)
24. “[N]either the sciences nor cross-cultural diversity need threaten our concepts of emotions and emotion-evoking features [as we have come to understand these in ‘commonsense’ or folk psychology]. The fact that these concepts are, unlike scientific concepts, interest-relative, need not undermine our confidence in them, nor need it imply any sort of relativism about the truth of claims we might make about our emotions or about emotion-invoking features of things in our environment.” (Goldie)
25. “[I]magination can induce a particular emotional state in someone who does not have the emotional disposition that that state would ordinarily manifest.” (Wollheim)

[A list of ‘references and further reading’ will be appended to the last post in the series.]

William Connolly, marriage equality, and generous and agonized engagement

When things get heated in today's culture war over human sexuality, one sometimes hears this quip from those in favor of marriage rights inclusive of LGBT people. "If you are against gay marriage, then don't get one!" The implication seems to be that religious conservatives are guilty of meddling in decisions that affect others, but not themselves. 

But this is simply not fair to conservatives and a point made by William Connolly, in his book Why I am Not a Secularist suggests why. It is not only that marriage equality will transform the broader culture in ways troubling to conservatives. This is true, but the challenge hits closer to home. Opening up the possibility that heterosexual ('traditional') marriage  is no longer universally normative puts those who have invested much in it being just that, in a new ethical and political space. It may be that they have never considered for themselves the possibility that their own sexual identities are not as stable as they had hoped/desired. And LGBT marriages push hard for such questioning. This is the truth in the fear some conservative Christians have that marriage equality will undermine their marriages. It just might, since we can all most likely recount stories of gay men and women who were once married (in heterosexual marriages) and who eventually came into contact with the live possibility for something else. At the very least, it can no longer be taken for granted that we, or our children, will find ourselves safely and happily ensconced in heterosexual marriage, and we will all have to work hard to negotiate our sexual identities in ways heretofore not possible, even if we eventually make the decision for 'traditional marriage.' 

The problem, as Connolly puts it, is that our traditional language of tolerance, which is what the progressive making the above quip is pressing for, is not adequate to the deep pluralism our culture currently strains within. Connolly calls for something more, what he calls 'critical responsiveness' (p.62), recognizing that those on the left (like himself) will be just as strongly challenged by its demands as those on the right who are struggling with the no longer universally normative vision of marriage. For on the left, one will have to be more generous and understanding of how deeply, viscerally challenging marriage equality trully is for heterosexual couples who may now find their identities shifting as the culture offers other possibilities. Without backing away from full support for marriage equality, those on the religious left might seek to be more generously engaged with those who disagree with us, recognizing that the trauma, anguish, anger and fear are real, and not to be despised or rendered as evil.

Here is how Connolly puts it: 

Tolerance is an admirable virtue, even though a limited one. Critical responsiveness is aimed at constituencies in the process of renegotiating the identities through which they have been culturally recognized and institutionally regulated. Critical responsiveness is bestowed as a new identity is forming through the politics of becoming. Most important, critical responsiveness often involves comparative shifts in the self-identification of the constituencies who offer it. Thus where tolerance implies benevolence toward others amid stability of ourselves, critical responsiveness involves active work on our current identities in order to modify the terms of relation between us and them. 

It may be that the antagonisms between the left and right over sexual ethics will always be heated. However, in my view it seems clear that something like Connolly's critical responsiveness, which seeks an ethics of generous engagement with one's political opponents (what he elsewhere calls the 'spiritualization of enmity') would go a long way toward avoiding a demonization of those on the other side of the matters which matter so much to us. Connolly's view places strong demands on those of us on the religious left, for we, no less than our religious brothers and sisters on the right, will find our own identities shaken by our efforts at critical responsiveness. Tolerance leaves our identities a-slumber in false innocence--critical responsiveness requires agonizing practices of ethical generosity, deep listening, and self-critical engagement with our own standpoints. To my ears, that sounds like the 'religious' way to go, left, right, theist or non-theist. 

 

Putting Citizens United into Perspective

If one is concerned by the role of money in politics, you have to be concerned by the election law rules even before you consider the reckless insouciance of the Citizens United case and the cases that have followed in its wake. Federal law permits an individual to give $2,500 to a federal election candidate up to a biennial limit of $46,200 to all candidates. It further permits the same individual to give $30,800 to a national party committee and $10,000 to state, district, or local party committees each calendar year. And with some limitations, it further permits the individual to give political committees $5,000 and $69, 900 to such committees biennially. Overall, an individual can give $117,000 to federal election campaigns over a two year cycle.

In a sense Citizens United just threw gasoline on a fire. It had already opened a loophole allowing individuals and corporations to spend unlimited sums of money with the intent and effect of influencing federal election campaigns just so long as the advertisements produced by these expenditures did not explicitly advocate the election or defeat of a candidate. Citizens United took the additional step of allowing individuals and corporations to explicitly advocate the election or defeat of candidates without having expenditures being limited by the act. I think the symbolic importance of making it clear to the public that massive corporate infusions of money were compatible with the Court’s twisted conception of democracy was even more important than its legal significance.

More important than Citizens United as a practical matter is SpeechNow.Org v. FEC, a case decided in the District of Columbia Circuit Court of Appeals. SpeechNow is a non-profit organization dedicated to making expenditures on behalf of candidates, but it does not coordinate their expenditures with candidate campaigns and does not make direct contributions to such campaigns. Federal law requires that any such organization that receives more than $1,000 a year in contributions or spends more than $1,000 must register as a political committee with the FEC. Registration triggers some accounting and disclosure requirements and the D.C. Circuit upheld these. But the law also imposes the contribution limits of $5,000 to any single committee and the aggregate biennial limit of $69,900 to many such committees. The D.C. Circuit said that the only interest that could justify these limits would be an anti-corruption interest and that the Citizens United case had determined that independent expenditures did not present a danger of corruption or apparent corruption (an act of wilful blindness - if you ask me). Accordingly individuals and corporations can give unlimited sums to what are called “Super PACS” as a result of the decision.  So contribution limits still apply to direct contributions to candidates and political committees that give direct contributions to candidates (ordinary PACS), but not to those political committees that independently advocate on behalf of candidates.

Although the perception is that corporations dominate Super PACS, this is not true. Most of the money for Super PACS comes from wealthy individuals, who, of course, have corporate business interests. See here and here. This is not to say that corporations do not play a major and disproportionate role in American politics. They do. It is to say that even if Citizens United can be overturned, there will be much more work to do before we have eliminated the corrupting influence of money in politics.

Why Isn't Unemployment Bad For the Republicans?

Most of the press is expressing the view that the increase in the unemployment rate is bad for the Democrats. One might think it would be just the other way. The Republicans have said if we leave money in the hands of the rich, they will be job creators. In fact, the wealthy have created jobs overseas and invested in job destroying technology. The Democrats wanted to take money from the super-rich and help the states hire teachers, police, and fire fighters. They wanted to use the money for job-creating infrastructure, and the Republicans blocked every effort. The Republicans spoke out against bloated government (meaning public jobs for teachers, police, and the like); the Republicans favor money to industries who give them campaign contributions (like oil), but oppose money going to green industries who tend to give money to Democrats. As the New York Times editorialized on Saturday, the way forward to creating jobs has been blocked time and time again by Republican opposition.

So why is the perception that Obama is at fault for the failure to create more jobs? In my view, it is because Obama has tried to stand above the fray, playing Mr. Nice Guy trying to get the Republicans to throw a bone for a small scale deal. Meanwhile the Republicans have captured the rhetorical headlines appearing to stand for something while the Democratic Party leader has given them free reign. But, campaign season has arrived and Obama has begun to say that the Republican have been wrong or willfully obstructive all along. His message should be that if the American people want jobs they need to get Republicans out of the House and Senate. There is also a story of money corrupting politics to tell as well. It will take a while for the message of Republican responsibility of job failure to get through. Fortunately, it is a long campaign season.

Gandhi & Civil Disobedience

Historical Exemplum:

“On March 12, 1930, Mohandas Gandhi, age sixty years, left his ashram at Sabarmati with seventy-eight followers (in photo above), bound for the shores of Dandi, a small village on the coast of Gujarat in western India. Thus began the historic Dandi march and salt satyagraha, one of the most dramatic events of modern Indian history. The march covered over two hundred miles and lasted twenty-four days. Its specific object was to protest against the tax the British Raj had placed on salt. Under the regulations of the India Salt Act 1882, the government enforced a monopoly on the collection or manufacture of salt, restricting its handling to officially controlled salt depots and levying a tax of Rs1-4-0 (46 cents) on each maund (82 lbs.). Gandhi defied this monopoly and so broke the law by simply collecting natural salt from the seashore on April 6. The broader object of the march was to spark a campaign of civil disobedience against the Raj in order to attain independence. The salt satyagraha, therefore, began with Gandhi’s act at Dandi, quickly spread throughout India as others followed his example, and intensified with his arrest on May 5. It then continued for almost a year until direct negotiations between Gandhi and Lord Edward Irwin, the Viceroy, ended the campaign. [….]

Why did Gandhi choose the salt tax as the issue? Its abolition had been advocated in India generally, and by Gandhi in particular, decades before the salt satyagraha. Gopal Krishna Gokhale, Gandhi’s mentor, roundly condemned the salt tax in 1902 before the Imperial Legislative council in Bombay. Gokhale dwelt on the ‘unquestioned hardship’ that the salt tax ‘imposes upon the poorest of the poor of our community.’ [….]

In the first extensive comment that he had ever made on the salt tax, he outlined the reasons for his choice of this particular tax in characteristically inclusive terms: ‘Next to air and water, salt is perhaps the greatest necessity of life. It is the only condiment of the poor…. There is no article like salt outside water by taxing which the State can reach even the starving millions, the sick, the maimed, and the utterly helpless. The tax constitutes therefore the most inhuman poll tax that ingenuity of man can devise.’ The issue, then, had by now acquired its essential components: the indispensable moral emphasis, including special stress on the suffering of a ‘helpless’ population, and the suggestion that the resistance to the tax must touch virtually everyone, but certainly ‘the starving millions.’ In this article, Gandhi proceeds to wax eloquent on some of his favorite themes: the way in which Government monopoly of salt production and distribution has killed the native Bengal salt industry; the exorbitantly unfair charge of the salt tax compared to the cost of production; the ability of India to manufacture all the salt it needs without unnecessary foreign imports from Liverpool; and the insinuation that if an illegality exists in this instance, it rest with the Government and not with those who must legitimately resist this immoral law. [….]

Gandhi…recruited his fellow marchers not from the Congress, but from his own ashram, where he could rely on bonds forged from trust and discipline. No producer or director can ever have lavished more concern and concerted attention on his cast of characters. Men, women and children, Hindus, Muslims and Christians, high-castes and harijans, college-educated poets from the Punjab and musicians from Maharashtra—this diverse community grew united in its unqualified adherence to Gandhian nonviolence and personal devotion to its prophet. V.G. Desai, one of the marchers, recalls that Gandhi repeatedly told members of the ashram that ‘he was born in order to destroy the British empire in India. He was a man with a mission and just as he was devoted to this cause, so this inspired devotion in us.’ By the end of February [1930], Gandhi declared his intention to ‘start the movement only through the inmates of the Ashram and those who have submitted to its discipline and assimilated the spirit of its methods’” [that is to say, actual and would-be satyāgrahis]. In this way, Gandhi underscored both his dissatisfaction with the undisciplined politics of the Congress organization, and his own position that among his adherents only one quality really counted, a disciplined belief in the creed of nonviolence.”—Dennis Dalton

Perhaps needless to say, “the masses” who were inspired by and themselves courageously followed his example, did not necessarily share this disciplined belief in creedal nonviolence. Nonetheless, for Gandhi, they had an inherent right to protest the salt tax with civil disobedience.  

Gandhi & Civil Disobedience: A Clarification

In her excellent entry on “civil disobedience” for the Stanford Encyclopedia of Philosophy (commonly referred to as ‘the SEP’), Kimberley Brownlee states that “[a] revolutionary like Gandhi was happy to go to jail for his offences, but felt no fidelity toward the particular legal system in which he acted.” I think this is a bit misleading on several counts. First, Gandhi did in fact characterize civil disobedience as the “purest type of constitutional agitation” (emphasis added), and while he was in several respects, a philosophical anarchist, he took pains to stress the difference between his conception of civil disobedience as that practiced by a “philanthropist and friend of the State,” from that of the typical anarchist, who would indeed feel “no fidelity to the particular legal system in which he acted.” We might call this Gandhi’s expression of presumptive fidelity to the (democratic) State’s legal order in general. Indeed, this is in keeping with his belief that the civil resister or disobedient must earn the right to break the State’s laws by demonstration of a prior obedience and attitude of respect for such laws. In other words, Gandhi’s conception of civil disobedience “presupposes a scrupulous and willing observance of all laws,” demanding of the civil resister a “law-abiding spirit combined with self-restraint” (Raghavan Iyer). Furthermore, Gandhi distinguished between aggressive or offensive civil disobedience and defensive civil disobedience, in which case the former, not countenanced by Gandhi, involves breaking the law “merely as a symbol of revolt against the State” (Iyer). In short, as Anthony Patel has well-argued, “we can put to rest the assertion that [Gandhi’s] concept of a non-violent society [which, after all, was on the order of a ‘Euclidean’ utopian model or Rāma Rājya] is incompatible with the coercive state.”]

The foregoing applies, for Gandhi, to the more typical cases of ideal civil disobedience as practiced by the individual, although Gandhi did envisage a less stringent and more “rights”-oriented civil disobedience practiced by the masses, as in the case of “complete civil disobedience,” justified only when “violence is corroding the entire body politic” (Iyer). For Gandhi, civil disobedience is considered a “branch of satyāgraha,” and thus it is closely connected to his notion of “non-cooperation,” although the latter is distinguished in the first instance from civil disobedience by his contention that while non-cooperation can be safely practiced by the masses, the latter is best thought of as the “last resort” and principled prerogative of a select few individuals, at least in the beginning of a particular satyāgraha campaign (in which it is but a part of this larger ‘whole’).

Gandhi makes other distinctions between individual and mass civil disobedience, as the latter is (spontaneously) “exercised by the masses as an inherent and legitimate right to secure the recognition of claims they regard due them as citizens,” while at the individual level, Gandhi understands the act of civil disobedience to be ideally and simply motivated along the lines of the performance of a duty, and thus not as a “rights claim,” but rather a duty owed under the dictates of conscience (there not being anything that can be comparably described as ‘mass conscience’). In effect, Gandhi invoked different conceptions of and justifications for individual (as something of an ‘heroic type’ or satyāgrahi) and mass civil disobedience, although what is “common to both is the willingness to suffer the penalties of disobedience and the determination to abstain from violence in the campaign of resistance.” In sum, while civil disobedience is for Gandhi a universal human right, “in practice only a few individuals were capable of exemplifying [it] in a spirit of tapas or self-suffering,” that is, in the manner required of the satyāgrahi. 

References & Further Reading:

• Brownlee, Kimberley, “Civil Disobedience,” The Stanford Encyclopedia of Philosophy (Spring 2010 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/spr2010/entries/civil-disobedience/
• Dalton, Dennis. “Civil Disobedience: The Salt Satyagraha,” in his book, Mahatma Gandhi: Nonviolent Power in Action. New York: Columbia University Press, 1993: 91-138.
• Iyer, Raghavan. The Moral and Political Thought of Mahatma Gandhi. Santa Barbara, CA: Concord Grove Press, 1983 ed. (1st ed., New York: Oxford University Press, 1973).
• Parekh, Bhikhu. Gandhi’s Political Philosophy: A Critical Examination. Notre Dame, IN: University of Notre Dame Press, 1989.  
• Parel, Anthony. “Gandhi and the State,” in Judith M. Brown and Anthony Parel, eds. The Cambridge Companion to Gandhi. Cambridge, UK: Cambridge University Press, 2011: 154-172.

Select American Indian Law Bibliography

[This is a picture of Painted Cave located in the foothills just outside of Santa Barbara, which is some of the finest remaining rock art created by Chumash Native American Indians.]

The latest edition of my bibliography for North American Indian Law has been kindly made available as a PDF doc. by Professor Matthew L.M. Fletcher, one of our foremost Indian law scholars, at the Turtle Talk blog. 

The Chumash Indians of our chaparral country bioregion were the subject of a recent article in our free weekly newspaper, The Independent, for their efforts at creating ecologically sustainable practices of living and working: “The Sustainable Chumash: Inside the Santa Ynez Band of Mission Indians’ Quest to Go Green.”