ReligiousLeftLaw.com

Another Juddge Finds DOMA Unconstitutional

In the latest of a series of decisions striking down DOMA, today in Pedersen v. Office of Personnel Management, Judge Vanessa Bryant of the United States District Court for the District of Connecticut found Section 3 of DOMA to violate equal protection.  In her 100-plus page opinion, Judge Bryant, a George W. Bush appointee, conlcudes that "homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny."  Even so, she goes on to find that the statute fails to pass muster even under the rational basis standard.  

Toward a Philosophically Sound & Bioethically Sensitive Definition of Public Health Law

Public health nursing made available through child welfare services in U.S. (c. 1930s)

Some readers may be interested in my post, “Toward a Philosophically Sound & Bioethically Sensitive Definition of Public Health Law,” up at the Ratio Juris blog. I especially welcome comments from those working in the law or in health care generally. This is a substantially revised essay from about a decade ago that I had forgotten about but thought, perhaps mistakenly or foolishly, worthy of new life.

Ethics, Literature, and (internally) Deliberative Democracy

[Readers who have not already done so, may want to look at an earlier and related post: Narrative Goodness.]

Invoking both a philosopher: Aristotle, and a novelist: Henry James, in Love’s Knowledge (1990) Martha Nussbaum writes of the importance of “perception” for ethical attentiveness and judgment or practical wisdom (phronēsis). This perception is defined as “the ability to discern, acutely and responsively, the salient features of one’s practical situation.” Such perception works in conjunction with or supplements moral philosophy’s traditional emphasis on rules or principles and categories, for the latter are not sufficient alone to make sense of the novelty of, or interconnected “particulars” in, our experience. Put differently, they cannot, unaided, cultivate a capacity to sensitively respond to new circumstances and situations. Experiential learning with regard to ethical living, in other words, “requires the cultivation of perception and responsiveness: the ability to read a situation, singling out what is relevant for thought and action.”

This emphasis on perception reminded me of an aphorism from Nietzsche:

“Learning to see—accustoming the eye to calmness, to patience, to letting things come up to it; postponing judgment, learning to go around and grasp each individual case from all sides. This is the first preliminary schooling for spirituality.” (Beyond Good and Evil)

While we may cultivate such perception and responsiveness through the emulation of exemplars of ethical goodness should we have the good fortune to intimately know and interact with such individuals in the daily round, literature, and especially novels, at least novels of a certain sort, can likewise and more routinely if not reliably offer us guidance on this score as well for they, in Nussbaum’s words, “exemplify and offer such learning:” “Our experience is, without fiction, too confined and too parochial. Literature extends it, making us reflect and feel about what would otherwise be too distant for feeling. The importance of this for both morals and politics cannot be underestimated.”

Literature’s capacity to peer, second-hand or at one-remove* as it were, into the lives of others, to cultivate a certain kind of “seeing” characterized by “calmness,” “patience,” the postponement of judgment, the appreciation of different perspectives, and the engagement of our emotions (sympathy, compassion and empathy for example) in a way that complements and motivates our rational reflections and deliberations, these are among the features intrinsic to the act of reading literature of a certain sort that Nussbaum chooses to highlight for its contribution to ethical reflection, moral deliberation and our understanding of virtuous living generally. And fiction, especially the novel, is the focus of her analysis because modern philosophical rhetoric, the mode of writing philosophy, at least for one’s peers in the profession, is constitutionally ill-suited if not unable to cultivate the aforementioned qualities believed to enrich moral thinking and action. Literature’s capacity to widen our horizons in this manner, to help us appreciate various perspectives outside our own experience, called to mind yet another aphorism of Nietzsche:

“There is only a perspective seeing, only a perspective ‘knowing;’ and the more affects we allow to speak about one thing, the more eyes, different eyes, we can use to observe one thing, the more complete will our ‘concept’ of this thing, our ‘objectivity,’ be.” (Daybreak or The Dawn)

The best literature, for Nussbaum, in effect provides us with more and different eyes. Moreover, Nietzsche’s stress on “more affects” in this regard is repeated in Nussbaum’s discussion of our emotional involvement with the novel, which is shorn of the more intemperate or darker displays of feeling we find in personal encounters, and thus in some sense, with the act of reading we lack the degree of attachment to our emotions found in personal interactions: our emotional engagement with the text is characterized by a kind of detachment congenial to enhanced self-awareness and self-knowledge.

Linda Zagzebski provocatively argues for a “direct reference” exemplarist virtue ethics in her book Divine Motivation Theory (2004) that is of some relevance here. And we might benefit from her proposal even if we choose, as I do, to set aside (or ignore) the theological components of her theory. According to Zagzebski, the “concept of good person arises from exemplars:” “We do not have criteria for goodness in advance of identifying the exemplars of goodness.” Thus, the phronimos, that is, the person who exhibits practical wisdom, “can be defined, roughly, as a person like that, where we make a demonstrative reference to a paradigmatically good person.” The late Robert Nozick wrote about such practically wise and good persons in perhaps his best work, Philosophical Explanations (1981): 

“We all know people, I hope, who bring out the best in us, people in whose presence we would be embarrassed to speak or act from unworthy motives, people who glow. In their presence we feel elevated. We are pushed, or nudged further along a path of development and perfection; rather, we are inspired to move ourselves along, in the direction shown. [….] We want to find a way of living whereby our best energies and talents are poured out so as to speak to and improve the best energies and talents of others. We want to utilize our highest parts and energies in a way that helps others to flourish.”

It may very well be the case that we don’t intimately know such people as Nozick describes, or our encounters with them are few and far between. In such instances we can turn to literature as a substitute for live moral exemplars, for “if all the concepts in a formal ethical theory are rooted in a person, then narratives and descriptions of that person are morally significant [as in the narrative accounts, say, of the Buddha or Buddhist arahant or bodhisattva, the Daoist or Stoic sage, Jesus and Christian saints, Gandhi, Sufi saints…].” Narratives are given a priority in an exemplarist virtue ethics, for they’re capable of providing us with “detailed and temporally extended observations of persons.” Of course we need not simply have recourse to the narratives of perfectly good persons of the sort we often encounter in religious literature. Less-than-perfect narrative exemplars found in many novels can model the sort of virtue required “in the messy situations that ordinary, less-than-virtuous persons encounter in modern life….” As Zagzebski reminds us, cultures have traditionally “enshrine[d] the wisdom of exemplars in myths, legends, the lives of saints and heroes, and in sacred literature,” while today we more often turn to personal acquaintances and literature (or even films) for our moral exemplars, although we’re faced, alas, with the unfortunate fact that the post-modern novel represents a “notable decline in the depiction of individuals who are morally better than the ordinary, [as] art no longer has the function of representing moral exemplars.” The primary task of (ethical) literary criticism in the contemporary world might therefore be one of identifying those works of literature, in particular novels, distinctive for their narrative depictions in the broadest sense of moral exemplars (as well as their converse). In Love’s Knowledge Nussbaum invokes works by Henry James, Dickens, and Proust (among others), although we can well imagine other writers perfectly suited to this task: Jane Austen, Thomas Hardy, Dostoevsky, Pablo Neruda (a poet), Naguib Mahfouz, Elias Khoury, J.M. Coetzee, Ursula Le Guin, Nadine Gordimer, and Margaret Atwood, for example.

We close with mention of one of our foremost political theorists, Robert E. Goodin, who seems to have taken to heart Nussbaum’s thoughts on the role of literature’s capacity to extend and deepen our experience with regard to morals and politics (whether directly or not is hard to say, although he does cite several of her books in a note) in his book, Reflective Democracy (2001). Goodin explains how “deliberative democratic theory” attempts to identify methods and procedures whereby we can correct for uninformed, malformed or distorted, in short, irrational or unreflective preferences of the kind commonplace in modern (mass) democratic societies: “Properly crafted deliberative processes can produce preferences which are more reflective, in the sense of being

• more empathetic with the plight of others;
• more considered, and hence both better informed and more stable;
• more far-reaching in both time and space [i.e., not myopic or marked by inconsistent and temporal time discounting], taking fuller account of distant periods, distant peoples, and different interests”

The original and creative component of Goodin’s proposal comes in the formulation of a “new way of conceptualizing democratic deliberation—as something which occurs internally, within each individual’s head, and not exclusively or even primarily in an interpersonal setting.” As Goodin says, “Seeing democratic deliberation as being inevitably a largely internal mental process—and potentially more so still—we are led to see as democratically more central than we might otherwise have done a wide range of political arrangements designed to inform the political imagination.” I won’t here cite the cultural, institutional, and interpersonal dimensions of these political arrangements listed by Goodin as I want, in keeping with the suggestions of Nussbaum and Zagzebski, to focus instead on the intrapersonal model of democratic deliberation “within,” that is, the “internal-reflective” aspect of deliberation that might or should supplement and complement the more well-known external-collective models of democratic deliberation. Goodin understands that the precise ways in which good literature stimulates our capacity for empathy, our imagination and sensibilities, our appreciation of concrete particulars, is somewhat elusive if not mysterious. But more importantly, what is commonly acknowledged and well appreciated by literary theorists

“is not just that fiction (and art more generally) might, and often does, contain allusions to social, economic, political, and historical facts, and in that way may serve certain didactic purposes. The larger point is that those lessons come packed with more emotional punch and engage our imagination in more effective ways than do historical narratives or reflective essays of a less stylized sort [e.g., much of Anglo-American analytic philosophy!]. ‘Artists,’ John Dewey says, ‘have always been the real purveyors of news, for it is not the outward happening in itself which is new, but the kindling by it of emotion, perception, and appreciation…. Democracy will have its consummation when free social inquiry is indissolubly wedded to the art of full and moving communication.’ That is not just to say that novelists are more evocative writers than historians or essayists (true though that may be, too). Rather, they fix their focus on the particular—one person, or one action or one period—and they introduce generalities by way of anecdotes, episodes viewed from that particular perspective. That vivid evocation of the particular, in turn, has important consequences for the uptake of works of art. Inevitably, we find it relatively easy to project ourselves imaginatively into the place of some specific (fictitious but grounded) other. It is necessarily harder to project ourselves imaginatively into the inevitably underdescribed sorts of amorphous and abstract others which are the stock and trade of historians and social scientists [and, Nussbaum would add, the real and hypothetical agents of ethical theorizing in contemporary philosophy].”

* This can be understood in several different ways, at least one of which entails recognizing that, in H. Porter Abbot’s words, “as true as it is that narrative can be an art and that art thrives on narrative, narrative is also something we all engage in, artists and non-artists alike. We make narratives many times a day, every day of our lives. And we start doing so almost from the moment we begin putting words together.” For a “philosophy of mind” analysis of the fundamental role of folk-psychological narratives in the child’s acquiring the capacity of understanding intentional actions performed for reasons, please see Daniel D. Hutto’s Folk Psychological Narratives: The Sociocultural Basis of Understanding Reasons (2008).

Further Reading:

• Booth, Wayne C. The Rhetoric of Fiction. Chicago, IL: University of Chicago Press, 2^nd ed., 1983.
• Booth, Wayne C. The Company We Keep: An Ethics of Fiction. Berkeley, CA: University of California Press, 1988.
• Bruner, Jerome. Making Stories: Law, Literature, Life. New York: Farrar, Straus and Giroux, 2002.
• Chari, V.K. Sanskrit Criticism. Honolulu, HI: University of Hawaii Press, 1990. [I have included this book because I believe the treatment of the emotions one finds in rasa aesthetic theory can best account for the way in which Nussbaum understands the unique manner in which works of literature engage our emotions. As I’ve written elsewhere: In Indian aesthetics, and speaking in this instance with regard to the art of poetry, the great Kashmiri Śaiva philosopher Abhinavagupta (c. 950-1015) argued that, properly conceived and executed, a poem’s cognitive content allows our own mental states to be objectively perceived by awakening latent memories, impressions or dispositions. The resulting rasa experience is said to be self-validating (or –certifying) (svatah prāmana, the notion that the validity of a cognitive episode or knowledge is present in the material that creates the object and that the awareness of this validity arises spontaneously with that episode or knowledge itself; for example, in Advaita Vedānta, awareness is said to be self-validating—and self-illuminating—such that the doubt ‘Am I aware or not?’ cannot occur). The self-validating character of rasa experience appears to countenance the idea that, in the end, such experience is a species of self-knowledge, in Abhinavagupta’s words, “a form of self-contemplation.” Thus “rasa as ‘aesthetic flavour’ comprehends both the arousal and development of an aesthetic emotion in the mind of the aesthete, as well as the objective components of the art object, which arouse and sustain that emotion” (Harsha Dehejia). This is one way we might makes sense of the psychological and epistemic mechanisms behind Iris Murdoch’s claim that good art “affords us pure delight in what is excellent,” and why “Good art shows us how difficult it is to be objective by showing us how differently the world looks to an objective vision.”]
• Harpham, Geoffrey Galt. Shadows of Ethics: Criticism and the Just Society. Durham, NC: Duke University Press, 1999.
• Hutto, Daniel, ed. Narrative and Understanding Persons. Cambridge, UK: Cambridge University Press, 2007.
• Landy, Joshua. Philosophy as Fiction: Self, Deception, and Knowledge in Proust. New York: Oxford University Press, 2004.
• Martinich, A.P. and Avrum Stroll. Much Ado About Nonexistence: Fiction and Reference. Lanham, MD: Rowman & Littlefield Publishers, 2007.
• McGinn, Colin. Ethics, Evil, and Fiction. New York: Oxford University Press, 1997.
• Murdoch, Iris (Peter Conradi, ed.). Existentialists and Mystics: Writings on Philosophy and Literature. New York: Penguin Books, 1999.

[cross-posted at The Literary Table and Ratio Juris blogs]

The Contingency of Dirty Hands & the Necessity of Virtuous Politics, Or: Toward Full Recognition of Individual and Collective Responsibility for “the Political”

 

“…[B]ecause we tend to think of morality both as forming a coherent whole and as dominating all other reasons for action, there are at least two different ways of stating the ‘dirty hands’ thesis. We may state it as the view that political reasons sometimes legitimately override the most serious moral considerations, or as the view that morality is divided against itself, with the virtues required by political life incompatible with what we think of as normal (or ‘private’) virtues. There is a third option, but it is less a formulation of the dirty hands challenge than a way of sanitizing its confrontation with morality. This is the option of treating the apparent clash between political and ordinary morality as reconciled by some overarching moral principle, such as the principle of utility.”—C.A.J. Coady

 The second way of stating the “dirty hands” thesis above, that is, as “the view that morality is divided against itself, with the virtues required by political life incompatible with what we think of as normal (or ‘private’) virtues,” has been given the most explicit defense in the history of morality and political philosophy, and has been termed the “doctrine of double moral standards.” As Raghavan Iyer writes in his nonpareil examination, The Moral and Political Thought of Mahatma Gandhi (1983 ed.),

“[the] common contention that there are two levels or types or standards of morality, one for the individual in his private life and in his immediate surroundings, the other for political life and collective conduct. This standpoint has been stated plausibly over and over again, from Aquinas to Maurras, Kautilya to Tilak, Jowett to Niebuhr. Prudentia politica or niti is held to be the charioteer of other virtues, and adapts the natural law or dharma to raison d’état or artha. Politics may be subordinated, but it must not become subservient, to morals.”

The idea that there are two levels or standards of morality seems to have some intuitive appeal owing to our observation and understanding of conventional political life and life lived in the intimate sphere of the daily round, despite the fact that the former: political and collective conduct—clearly has enormous (and not just economic) consequences for the character and quality of the latter: the individual in private life—and the latter, at least when aggregated in the polling booth, or in the exercise of the capacity to grant or withhold political legitimacy, is causally connected to the former. In other words, causal arrows run in both directions, a fact that in significant measure was recognized in the feminist slogan, “the personal is political.” Conventional politics is often thought to be corrosive of our highest moral standards and virtuous behavior, and thus the interdependent relation between “the Good” and the “common good,” is weakend, and, it would seem, on occasion at least, severed. In the words of Matthew Flinders in Defending Politics: Why Democracy Matters in the Twenty-First Century (2012), “‘Politics,’ for the many rather than just a few has become a dirty word conjuring up notions of sleaze, corruption, greed, and inefficiency.” The belief that this is an accurate characterization of politics has pernicious effects, the foremost irony consisting in the fact that it infects the hoi polloi with attitudes of apathy and cynicism which, in turn, result in behavioral effects that only harm or weaken any attempts, be it by citizens themselves in civil society or politicians and officials in political fora, to enhance our individual and collective welfare and well-being, or increase the probability of or prospects for self-fulfillment and individual human flourishing. A sophisticated utilitarianism or consequentialism (see Goodin 1995) may often suffice as a default public philosophy for policymaking to the extent we cannot achieve an overlapping consensus in civil society regarding “the Good,” but there is no compelling reason why we need exclude moral appraisals grounded in individualist moral philosophies (virtue ethical or otherwise), the standards of which we apply to the personal or intimate realm of “private” life, but are often thought inapplicable or irrelevant to the wider world of conventional politics.  

Again, Coady:

“[O]ne may readily concede that some areas of life lead to more frequent clashes between moral and non-moral values but we need to recall both that precisely which areas these are is a matter of historical contingency, and that frequency of confrontation need not correlate with frequency of justified overriding. Politics may be very bland as, I imagine, in Monaco, and private life can be a maelstrom of agonizing conflicts, as in a black ghetto or an Ethiopian village during famine. Moreover, where politics is morally perturbing it doesn’t follow that decisions against morality will necessarily be legitimate. Some area may be morally dangerous than another without being less morally constrained. Politics may often be sleazier than housekeeping without this fact licensing fewer moral constraints in politics. On the contrary, the more frequent temptation is, the greater, we might naturally suppose, the need for stern attachment to moral standards and virtue. (This was indeed the view of Machiavelli’s famous humanist contemporary, Erasmus, in his The Education of a Christian Prince).”

Moreover, the notion that politics is synonymous with sleaze and corruption, greed and inefficiency, that powerful governments in the modern world cannot but help but behave in the international arena according to the narrowly circumscribed (according to moral criteria) norms of “political realism” and Machiavellian power politics, is invoked by way of attempts—steeped in denial, self-deception, and wishful thinking—to wash our hands of all social and political responsibility for the current state of affairs, to cleave to the untenable belief that we’re somehow not implicated in the creation (and now maintenance) of contemporary socio-economic and political conditions, that it is not our fault things are such a mess. But I rather think it is a profound truth, however ill-understood, that to a great degree we get the governments we deserve, that all of us our implicated, directly and indirectly, and in ways not easy to discern, in the nature of the power exercised on our behalf, at least this strikes me as true in the affluent capitalist democracies (welfare states) in the northern hemisphere as well as not a few of the would-be democratic and emerging polities in the southern hemisphere.

Of course the mechanisms of representative democracy mean that others act on our behalf, that we’ve empowered, hence entrusted, others to solve the basic problems of collection action and to do the fundamental socio-economic and political work that largely determines the form, and much of the substance, of the common good. In other words, the constituent power of “the people” (so to speak, as we see below) is transformed, through the legal and constitutional orders of the democratic State, into the media of effective governance exercised in its (i.e., our) name. There are myriad ways we formally and informally confer legitimacy on the ongoing exercise of this sovereign power, and there are innumerable means available to us to determine and shape the quality and features of such governance, but most importantly, we’re open to conclude that if others have abused the power with which they’ve been entrusted by flouting the rule-of-law in the most egregious manner, that we may need to withdraw (or threaten to withdraw), our grant of legitimacy, our support in the name of “the people” or de-legitimize this once representative power. And we can do this simply because of the fact that ultimate power at all times resides in the hands of the masses, that the sovereign power is never, literally, an absolute power. The forms of power that exist at the heights of the political pyramid depend in significant and determinative ways upon the power at the base of the pyramid, even if the routine exercise of governance in the modern world make it appear as if all power emanates from sources at or near the top of the pyramid. In his study of the political philosophy of “poststructualist anarchism,” Todd May explains how thinkers like Foucault, Deleuze, and Lyotard, as well as the more sophisticated anarchist thinkers of our time, help us appreciate why and how power is not merely a suppressive force that we must oppose, after all, we created and now effectively sustain the power we’ve entrusted to others, and our inherent capacity to influence that power and even reconfigure it through constitutional change or revolution reminds us that power is not wholly monopolized by the legislative and administrative State, nor even, for that matter, by the transnational corporations or globetrotting financiers of postmodern and neo-liberal turbo-capitalism. Anarchists have always had a healthy suspicion, to put it mildly, of all conventional political power, but this should not lead us to conceptualize the nature of power as oppression through suppression in one way or another. In May’s words, “power not only suppresses actions, events, and people, but creates them as well.” It’s the “creative” part of the equation that we tend to forget or ignore when we demonize the powers-that-be, when we wash our hands of politics. So while a politician may be the quintessential political animal, all of us in fact are, as Aristotle famously said, political animals.

I cannot here attempt to summarize the intriguing conceptualization of power one finds among May’s poststructuralist anarchists. Instead, I’ll call upon Gandhi’s view that politics is not inherently or irremediably sinful or morally degrading, nor is it “intrinsically moral in its own way,” and thus to the extent that it is true that contemporary politics is corrupt, ineffective, and immoral (at least by the individualist moral criteria of virtue ethics or Kantian ethics), this is merely a contingent state of affairs, not a necessary truth about politics as such. Furthermore, those who are responsible for this sorry state of affairs are not simply those holding political and legal office, for we all are complicit in the causal processes and conditions that led to this state of affairs, hence we need to fully flesh out a notion of “collective responsibility,” one morally and methodologically grounded in individual responsibility so as to preclude rationalizations of lack of concern for involvement in “the political,” so as to exorcise once and for all any attempt to affect a stance of moral purity or absolution that serves, in turn, to sanction “dirty hands” of one kind or another. The fact that power does reside in the hands of “the people” means that we have the capacity to “purify” politics of all that is corrosive of moral principles and virtuous ways of living should we choose to do so. In this essay I will not discuss the possible means and methods of such “purification.”

We should hold uppermost in our minds the fact that while the State has a monopoly on the means of violence and is defined by a distinct form of legal and political power that may or may not be exercised for the common good, its corrupt and inefficient exercise, its more authoritarian and insidious forms can be resisted and transformed if not eliminated, should we come to clearly recognize the power we all possess and use that power in creative and constructive ways to engage in nonviolent resistance, to build alternative communities and institutional forms on the contested terrain of civil society. But this cannot take place in any significant or meaningful measure should we choose by design or in default act to ignore conventional power politics, to succumb to the social-psychological forces of cynicism, apathy, and despair which only serve to rationalize efforts to diminish or eliminate our complicity in, our partial responsibility for, the sorry state of affairs that afflicts the terms and conditions of the terrain on which we conduct our individual and collective lives.

The constitutionally constituted democratic sovereign State (the constitution of which need not be enshrined in one document), its de jure sovereignty, should be seen as existing in a public fiduciary relationship to its people. And it remains the case that all public power in part derives from and in the main relies upon, the people, even if “the people” as such did not literally consent or contract to the authority of the democratic constitutional State. Russell Hardin has convincingly demonstrated how a constitution does not require universal or even widespread agreement to come into being, indeed, we might say that the constitutional act itself is, in important respects, only nominally or presumptuously democratic, for “In many contexts a constitution does not even require majority support, it merely needs lack of sufficient opposition.” The terms of agreement in the case of a collective institution that has to govern all of us are typically not consensual or contractual, “it is only necessary for enough to agree or even merely to acquiesce for us to move ahead with our collective arrangements. Clearly this is what is done under a constitution in most cases: some fraction of those qualified to vote on an issue is all that is required to decide the issue.” The Constitution is not a sovereign act of “the people” in a literal sense, although it does constitute “the people” in a de jure sense, making possible the effective exercise of (deliberative, participatory, and representative) democratic power by virtues of its legal order and institutions. And although the resultant democratic State thereby directs, channels or harnesses the de facto “power of the people,” it can never wholly monopolize or eliminate that power. Most constitutions are therefore best understood as “coordinating conventions” from which “virtually all [of us] benefit” because of the regulative and political order they establish. This coordinating convention raised the cost of doing things some other way and makes clear the way in which “[o]ur interests will be better served by living with the arrangement:”

“And this is generally true not because we will be coerced to abide if we choose not to but because we generally cannot do better than to abide [just ask those living in real or hypothetical ‘states of nature’]. To do better we would have to carry enough others with us to set up an alternative, and that will typically be too costly to be worth the effort. Hence our constitutional arrangement is self-enforcing and is not subject to free-rider problems.” (Russell Hardin)

The ultimate source of sanctions in this instance is the “internal costs of collective action for re-coordination,” that is, mutiny, insurrection, rebellion, or revolution, all of which take place outside of the constitutional order and which hope to overthrow that order. In any case, de jure popular sovereignty is incoherent in theory and virtually impossible in practice, whatever the residual value of the rhetoric of “popular sovereignty,” for example, as a reminder of the de facto power in the hands of the masses:

“Popular control fails in principle for two quite different reasons. First, there are the standard problems of social choice, that popular views will commonly not aggregate into a collective view and that individuals will be motivated neither to understand public issues well enough to act on them nor to take action even when they do understand them. Secondly, there is the nature of institutional government. To be effective, government must work through institutions. But the structure and eventually the actions of institutions are substantially [I think this is a bit too strong] unintended consequences, the result of growth and not the outcome of popular choice or even any systematic choice at all.” (Russell Hardin)

Whatever the peculiar mix of and complex interactions between expressions and exercises of de jure democratic power (the constitutional legal and political order) and de facto democratic power (the implicit power in the hands of ‘the people’), we need to continually remind ourselves that

“[p]ower-holders are by no means free and impartial agents, commanding the actions of other by means of coercion, crude or subtle. Their range of choice is not as great or almighty as is often believed, and they are more the victims of movements and social attitudes than they know. As Meinecke recognized, ‘the subject people allows itself to be governed because it receives some compensations in return and…through the medium of its own latent impulses towards power and life also nourishes the similar impulses on the part of the rulers…. The ruler is transformed into the servant of his own power.’ The ruled, however, do not realize the extent of their power as they are overawed by the apparent omnipotence of State power. They come to conceive power as narrowly as their rulers; in this lies their real slavery, a product of ignorance rather than inherent weakness, of self-deception rather than self-denial.”

And thus I think we might endorse Flinders’ belief (and the actions that follow therefrom) that

“we must examine very carefully the claims of those who would do better [than our politicians] or who would turn their backs on politics completely. We must also challenge those who bemoan politics but in the next breath demand that the institutions of the state do more and more. Politics can and does make a positive difference to people’s lives. It delivers far more than most people in the United States, the United Kingdom, and other ‘disaffected democracies’ realize. …[And yet]  while those who carp and criticize from the sidelines about the failure and limitations of democratic politics have shown a genius for demolition, there are still those who can undertake the far riskier business of reconstruction.”

In short, government is not the root of evil, government is not the problem (the companion proposition of the claim that it is in fact such a root, usually involves, deliberately or not, according the bulk of power to the capitalist marketplace and capitalists, be they high financiers or transnational corporations). And all parts of the political spectrum should give appropriate weight to both rights and responsibilities. A constitutional aversion to democratic politics or “anti-politics” is no panacea, indeed, its downright harmful in myriad obvious and not-so-obvious ways, and can only, in the long term, impede our struggle to realized a common good wherein collective welfare and well-being provide the necessary propitious conditions for individual human flourishing (eudaimonia), in other words, provide the social soil conducive to that form of moral development distinguished by self-identification and autonomous, self-directed living in which there is an interdependent division of labor (i.e., a community) with respect to the realization of objective values (in the sense that value both does and does not depend upon human subjectivity, as Linda Zagzebski has explained).

While the constitutional order is formal with regard to de jure power, our de facto power, be it unrecognized, infrequently or insufficiently exercised, in abeyance, what have you, should prompt us to appreciate the manner in which the state-subject relationship, the relation between ruler and ruled, between the government and its citizens, ultimately rests on a “presumption of trust rather than [explicit or implicit] consent,” a presumption that need not rely on an explicit declaration on our part, after all, we’ve already acquiesced to the prevailing democratic constitutional order, and “fiduciary doctrine does not require the beneficiary to make an explicit or public declaration of her trust in the fiduciary,” any more than a child does with its parent. As we saw in Russell’s explanation of the nature of the constitution as a coordinating convention, abidance by the consequent constitutional order is not the result of a contract or some hypothetical or real agreement between the parties. Similarly, “[n]or is an agreement between the fiduciary and the beneficiary necessary.” The duties and powers of the fiduciary relationship, like those that arise from the constitutional order, do not originate in an agreement, democratic or otherwise (although the specific duties and powers of the fiduciary relationship itself are legally and legislatively defined). Like the fiduciary relationship generally, in which beneficiaries are vulnerable to possible abuses of fiduciary power, so too citizens in a democracy are vulnerable to abuses of government power. But because we more often than not benefit (as the personified Laws reminded Socrates in the Crito) by living in a democratic polity in which representatives are entrusted to make judgments and exercise discretionary power on our behalf (and thus are ourselves not entitled to exercise that selfsame power), we abide by the laws, and our routine obedience confers legitimacy on the constitutionally constituted sovereign power, a legitimacy that can be withdrawn, but any such withdrawal must make an honest accounting of the costs of such withdrawal the endeavor to start afresh, which can be considerable, one reason we tend to “sacralize”our Constitution, perhaps an implicit admission of the many benefits that follow from living within a democratic polity, whatever its other failures, disappointments, and shortcomings in light of the pursuit of justice and the realization of our most cherished principles and values. With regard to the presumption of trust and the fiduciary relationship of this democratic constitutional order, we defer to Fox-Decent’s account in Sovereignty’s Promise: The State as Fiduciary (2011):

“Sovereign powers are…paradigmatically administrative in nature. It follows that when the state exercises these powers over legal subjects who are juridically incapable of exercising them, a pure fiduciary obligation arises. Because the obligation arises to protect the subjects interest in being a member of legal order rather than a purely coercive order (or no order), the content of the obligation is to govern in accordance with the rule of law.”

As long as the State is “rule-of-law” abiding, Fox-Decent reasonably argues, “individuals are not entitled to opt out.” The foremost reason why this is wrongful is that it “entails that private parties are entitled to set unilaterally the terms of their interactions with others; the resident dissident becomes the sole judge of her every cause,” a scenario that is not—as Kant explained so well and as Hobbes well understood—is not universalizable, at least insofar as it undermines or contradicts basic moral equality, one of the enduring insights of classical Liberal political philosophy. Paraphrasing the Kantian defense of the Liberal legal order, Fox Decent writes:

“The state resolves the problem of indeterminacy (and with it the problem of unilateralism) by setting out specific rules that will be use to apply general principles to particular facts. The state can thereby guarantee a regime of equal freedom in the sense that the freedom of each is made subject to the same reciprocal limits that apply equally to all. As a consequence, the (rule-of-law abding) state’s members enjoy a reliable and known framework of equal freedom from within which to plan their lives and interact with others….”

Our disaffection with politics and politicians, while understandable, conceals more than it reveals. And it can push some of the most passionately disaffected into solipsistic or anarchist positions (perhaps with corresponding attempts to justify political violence) that fail to appreciate the very real and hard-won benefits of a constitutional legal order. What, pray tell, does that mean? It means that before we rush to blame politicians and politics qua politics for all the muck and mire, we should take to heart the extent of our personal and collective responsibility for the state of affairs we find ourselves stuck in, however partial or unintended in its nature and effects. In addition, our world has been rapidly changing (at least since the 1970s) on many fronts, having to do in the first place with the nature of the global capitalist entrenchment and the pace of technological change, meaning that our challenges are greater and our problems more complex (and intertwined) in a way that more than ever before defies simplistic ideological classification and ritualistic reliance on the ways and means that once served us well (or well enough). This does not mean distinctions between the Right and the Left are now irrelevant, but that our philosophies and theories, our politics and policies, must be more imaginative, more courageous or daring in an experimental sort of way. It means that we may need to step out of the routine of our daily lives in order to once again join social movements or sacrifice more of our time to political matters, as we’ve done periodically throughout our nation’s history, and do this in a way that does not diminish the importance of conventional politics, the work of public servants, or the role of existing institutions. Indeed, if history teaches us anything, it is that those exercising conventional political power can be our allies in struggles for progressive change. Our expectations with regard to ourselves should grow, at the same time we should become more realistic if not modest about what to expect from our public officials, constrained as they are by having to govern in a social climate of disaffection, disloyalty, distrust, cynicism, anger, and despair, in a period of widespread economic uncertainty and insecurity which, in the short-term at least, will probably persist if not occasionally worsen. Those of us in the affluent nation-states of the northern hemisphere have to face a new global reality, one in which we are no longer the dominant players, and one in which there will be a movement toward equalization of global living standards and quality of life, and thus a more egalitarian global order of nation-states:

“The West has certainly enjoyed an extended and impressive era of global dominance, but the clock is running out on its primacy. As this new century unfolds, power will  become more widely distributed around the globe. Countries that long operated in the shadow of Western hegemony are now entering the top ranks and expecting a level of influence commensurate with their position. [….] [T]he coming world will be both multipolar and politically diverse; it will consist of major powers that embrace distinct conceptions of what constitutes a legitimate and just order.” (Charles A. Kupchan)

This does not mean that the U.N. Security Council, for example, will disappear, only that it may evolve to better reflect the growing role of these new powers. Nor does it mean that global institutions like the International Monetary Fund, the World Bank, or the World Trading Organization are obsolete, irrelevant, or doomed, only that the terms of their operation will probably be change so at to closer approach conditions of global fairness and justice. Allen Buchanan and David Golove have detailed how so-called Realists in international law and politics have typically drawn a meta-ethical conclusion from their descriptive explanatory accounts of international relations (or failed to see how these accounts were entangled in value perceptions and judgments), namely, “that morality is inapplicable to international relations.” Yet even Realists may be compelled to acknowledge that the course of events on the international plane is tending in a direction more conducive to a fairer or just society of nation-states, that is, one not wholly deferential to a neo-liberal political and economic order that preserves Western hegemony. We can, and should, remain committed to the universalizability of democratic ideals, principles, values, means, methods, and processes, and this commitment should also entail giving up the remaining articles of Western colonialism or imperialism, be they of neo-conservative or neo-liberal provenance.  Kupchan rightly and unequivocally states that Westernization is not the same as democratization, and thus we might abandon the former for the sake of the latter.

We opened with a quote from C.A.J. Coady and we’ll close with a quote from him as well:

“We concentrate upon the particular act that will require dirty hands and ignore the contingency and mutability of the circumstances that have given rise to it. Yet it is precisely these circumstances which often most deserve moral scrutiny and criticism, and the changes which may result from such criticism can eliminate the ‘necessity’ for those types of dirty hands in the future.”

All of us bear responsibility for enagaging in this requisite moral scrutiny and criticism, as well as possess an obligation to work for the changes implied by such appraisal. Even if we refuse to believe we have directly or indirectly contributed to the appearance of the immutability of the background circumstances in which our politicians act and which are liable to give rise to dirty hands apologias, we can still do everything in our power to change those circumstances. 

References and Further Reading:

• Barry, Christian and Thomas W. Pogge, eds. Global Institutions and Responsibilities: Achieving Global Justice. Malden, MA: Blackwell, 2005.
• Buchanan, Allen. Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law. New York: Oxford University Press, 2004.
• Buchanan, Allen and David Golove. “Philosophy of International Law,”in Jules Coleman and Scott Shapiro, eds. The Oxford Handbook of Jurisprudence and Philosophy of Law. New York: Oxford University Press, 2002: 868-934
• Coady, C.A.J. “Politics and the Problem of Dirty Hands,” in Peter Singer, ed., A Companion to Ethics. Oxford, UK: Blackwell, 1991: 373-383.
• Coady, C.A.J. “Dirty Hands,” in Robert E. Goodin and Philip Pettit, eds. A Companion to Contemporary Political Philosophy. Malden, MA: Blackwell, 1993: 422-430.
• Coady, C.A.J. Messy Morality: The Challenge of Politics. New York: Oxford University Press, 2008.
• Coady, C.A.J. Morality and Political Violence. Cambridge, UK: Cambridge University Press, 2008.
• Coady, C.A.J. (Tony), “The Problem of Dirty Hands,” The Stanford Encyclopedia of Philosophy (Fall 2009 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/fall2009/entries/dirty-hands/.
• Flinders, Matthew. Defending Politics: Why Democracy Matters in the Twenty-First Century. New York: Oxford University Press, 2012.
• Fox-Decent, Evan. Sovereignty’s Promise: The State as Fiduciary. New York: Oxford University Press, 2011.
• French, Peter A. and Howard K. Wettstein, eds. Shared Intentions and Collective Responsibility. Malden, MA: Blackwell, 2006.
• Goodin, Robert E. Utilitarianism as a Public Philosophy. Cambridge, UK: Cambridge University Press, 1995.
• Hardin, Russell. Liberalism, Constitutionalism, and Democracy. New York: Oxford University Press, 1999.
• Holmes, Stephen. Passions and Constraint: On the Theory of Liberal Democracy. Chicago, IL: University of Chicago Press, 1995.
• Iyer, Raghavan. The Moral and Political Thought of Mahatma Gandhi. Oxford, UK: Oxford University Press, 1973.
• Kupchan, Charles A. No One’s World: The West, The Rising Rest, and the Coming Global Turn. New York: Oxford University Press, 2012.
• Kutz, Christopher. Complicity: Ethics and Law for a Collective Age. Cambridge, UK: Cambridge University Press, 2000.
• List, Christian and Philip Petit. Group Agency: The Possibility, Design, and Status of Corporate Agents. New York: Oxford University Press, 2011.
• Lloyd, S.A. Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature. Cambridge, UK: Cambridge University Press, 2009.
• May, Larry. Sharing Responsibility. Chicago, IL: University of Chicago Press, 1992.
• May, Todd. The Political Philosophy of Poststructuralist Anarchism. University Park, PA: Pennsylvania State University Press, 1994.
• Miller, Richard W. Globalizing Justice: The Ethics of Poverty and Power. New York: Oxford University Press, 2010.
• Norton, David L. Democracy and Moral Development: A Politics of Virtue. Berkeley, CA: University of California Press, 1991.
• Nussbaum, Martha C. Creating Capabilities: The Human Development Approach. Cambridge, MA: Belknap Press of Harvard University Press, 2011.
• Ripstein, Arthur. Force and Freedom: Kant’s Legal and Political Philosophy. Cambridge, MA: Harvard University Press, 2009.
• Santos, Boaventura de Sousa, ed. Another Production is Possible: Beyond the Capitalist Canon. 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.
• Sher, George. Beyond Neutrality: Perfectionism and Politics. Cambridge, UK: Cambridge University Press, 1997.
• Tuomela, Raimo. The Philosophy of Social Practices: A Collective Acceptance View. Cambridge, UK: Cambridge University Press, 2001.
• Tuomela, Raimo. The Philosophy of Sociality: The Shared Point of View. New York: Oxford University Press, 2007.
• Waldron, Jeremy. Law and Disagreement. New York: Oxford University Press, 1999.

More on the Importance of the Stolen Valor Case

I have already argued that the Stolen Valor case is important because it breaks with the rigid methodology used in recent years by the Court to determine whether speech should be unprotected. See here. The case may be important in three other respects.

The Court sometimes says and some commentators maintain that public speech receives more protection than private speech. Yet in the Stolen Valor case, the reverse is the case, at least for the four justice plurality. The plurality maintains that public utterances falsely claiming the receipt of a medal of honor should be unprotected, but if the same statement is uttered in private, it should be protected. Yet, I would think that the statement uttered in public is less likely to cause damage because its falsity is more likely to be quickly discovered as were the facts in the case before the Court.

More disturbing is an aspect of the dissent. In a previous case, the Court ruled that an ordinance outlawing racist fighting words (a form of unprotected speech) was unconstitutional because it unreasonably outlawed some fighting words without outlawing others. From Justice Scalia's perspective, St. Paul Minnesota had taken a side in the culture wars. RAV v St. Paul. I do not agree with the result in RAV, but I think the equality principle upon which it relies is unassailable. For example, it would be obviously unconstitutional to outlaw fighting words directed against Republicans, but not against Democrats. It seems to me that the opinions in the Stolen Valor case certainly needed to discuss RAV. According to the statute it is not permissible to wrongly claim that you have earned the medal of honor, but it is permissible to falsely say that you once served in the Peace Corps, or as a lawyer in the Justice Department (when you are not even a lawyer) or as a Doctor in the Veterans Administration (when you are not a doctor). Surely this content discrimination required some discussion under RAV.

Finally, the Alito dissent argues that First Amendment interpretation has not depended on originalism. Yet Justice Scalia and Thomas, the apostles of originalism, sign this opinion. Perhaps Justice Scalia could claim that his originalism allows him to bow to precedent (though these bows are selective). I do not see how Justice Thomas could say this. Nor do I understand how Scalia could miss the need to discuss RAV. I am left to speculate that the rally around the military politics implemented in the law blinded Scalia and Thomas to the need to explain why they were not taking one side in the culture wars.

Penn State and the Catholic Church

Some say that the penalties imposed by the NCAA against Penn State were too severe. I say it's a shame that the Catholic Church is not governed by the NCAA.

The Aurora Massacre, Violence, and the Sick Society

I think my country, the United States, is a rather militaristic and violent society generally, from the military industrial complex and the national security state, through popular films, video games, television shows, and even sports (e.g., boxing, ultimate fighting). Violence is ubiquitous, and it is not all “gun” violence (and Chris Bertram has pointed out that while ‘the murder rate might have declined in the US since the mid-70s...spree killing seems to have taken off in the 1980s and not to have happened much before then.’). And of course not everyone who has been exposed to real or virtual violence is affected in the same way, and there’s the rub. The wide variety of personalities or temperaments and character types, combined with genetic inheritance and socialization processes, leaves some individuals more prone to being affected by such things than others: they’re intrinsically vulnerable we might say (and that vulnerability is frequently expressed in symptoms of mental illness). Of course it is hard to identify just who are such individuals, but often, especially in intimate social interactions, people have hunches, suspicions, concerns, and so forth, which they may or may not act upon owing to, among other things, not wanting to get involved, uncertainty, or fear, for example.

Recent reports state that the shooter in this case, one James Holmes, “was shy, well-mannered and highly intelligent and showed no signs of someone about to erupt.” That may very well be true, and I’m not going to engage in an armchair diagnosis except to note that it does appear that few if any individuals were very close—intimate friends—with Holmes. Perhaps Holmes’ “character armour” (Wilhelm Reich) was such that he did not express his true feelings around those who knew him socially, or perhaps he was adept at repression. Whatever the explanation, and this is sheer speculation, I would not be surprised to learn the fact that he “had begun the process of withdrawing from the [doctoral] program [in neuroscience at the University of Colorado Denver Anschutz Medical Campus] last month was some sort of “tipping point” or causal variable here, especially if much of his personal identity was wrapped up in the career path of a promising neuroscientist: “It is not clear what triggered his decision to drop out, although some reports suggested he was having troubles with his studies.” As I mention below, there can be a fine line or porous boundary between simple depression, dispositional sadness, anxiety or insecurity, and other normal psychological phenomena and pathological signs and symptoms. All of this takes place in the socio-cultural shadow of a mental health system that is, simply, a mess, in part as a result of “de-institutionalization,” which had some perverse effects probably not anticipated by those who successfully advocated several decades ago for (in some measure necessary) changes in mental health care and treatment.

I’m not sure who the government official was speaking at one of the press conferences immediately following the shooting, but he referred to the suspect as something on the order of a “freak of nature,” while yet another public official spoke of this as an “isolated incident” (which, literally, it appears to be). Both of these descriptions are not at all helpful in our attempts to explain or make some sense of this act of violence. Nor are accounts which speak of this as simply an inexplicable act of evil. Such characterizations permit us to avoid looking at how our society and culture bear some measure of responsibility for the kinds of individuals (and communities) that compose it, and I say that without in any way wanting to diminish the notion of individual moral responsibility. Individual lives are not lived in vacuums, and there are myriad effects on them, some of them identifiable, others hidden or mysterious. I prefer, however painful or inchoate, to see all of us as sharing in the complicity of such acts in a general sense insofar as we’ve done nothing to change a society which is clearly violent and in which an incredibly large number of people display symptoms of mental illness. Erich Fromm got close to the problem in speaking of a “pathology of normalcy” (the particular locution was his but the idea has ancient pedigree). As far back as the 1950s, Fromm wrote that much of our cultural and political life evidence expressions of low-grade, chronic schizoid tendencies. In short, our society is in many respects “sick,” and this latest incident is one of the more visible and terrible symptoms of that sickness.

At the Crooked Timber blog, a reader by the name of Matt McIrvin had a reasonable response to the above argument about the underlying socio-cultural conditions that make violent events like the Aurora shootings all too commonplace in this country:

“…I am always a bit suspicious of claims that the modern world or modern America is unusually prone to psychosis, or is somehow generally schizotypal in ways that other places and times are not. It’s entirely possible, but how would one even begin to measure that, with changes in diagnostic criteria and changes in the way people deal with mental illness?”

My reply:

On the question of why and how entire societies might be “sick,” I would recommend the chapter, “Consensus, Conformity, and False Consciousness: ‘The Pathology of Normalcy,’” in Daniel Burston, The Legacy of Erich Fromm (1991). As to questions of “measurement,” I’m not confident that such claims are amenable to measurement, at least not in any definitive sense in a way that my satisfy current epidemiological standards (which themselves are contestable), although I do believe we can assemble evidence and reasons of various kinds on behalf of such a claim. At least one reason for epidemiological skepticism is provided by Burston: “When it comes to questions of fundamental sanity, laypeople and clinicians alike are accustomed to gauging the sanity of thought processes in terms of the degree of consensual validation that attaches to their content, and in terms of the adequacy or intelligibility of their underlying process (so far as we can apprehend it). Many of the diagnostic instruments and protocols used by mental health professionals are merely refined and systematic extensions of these commonsense assumptions.”

In addition, the very idea of the pathology of normalcy is found in ancient Greece before, with, and after Plato (e.g., Hellenistic ethical philosophies like Epicureanism and Stoicism), as well as among Hindu and Buddhist philosophers, Daoist sages, and rabbinical traditions.

Leaving that aside, and conceding the increasing psychological “medicalization” of certain otherwise normal mental attitudes, moods, dispositions, or emotional states like sadness or shyness (see works by Allan Horowitz and Jerome Wakefield, and Christopher Lane, respectively),

“It seems that Americans are in the midst of a raging epidemic of mental illness, at least as judged by the increase in the numbers treated for it. The tally of those who are so disabled by mental disorders that they qualify for Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) increased nearly two and a half times between 1987 and 2007—from one in 184 Americans to one in seventy-six. For children, the rise is even more startling—a thirty-five-fold increase in the same two decades. Mental illness is now the leading cause of disability in children, well ahead of physical disabilities like cerebral palsy or Down syndrome, for which the federal programs were created.

A large survey of randomly selected adults, sponsored by the National Institute of Mental Health (NIMH) and conducted between 2001 and 2003, found that an astonishing 46 percent met criteria established by the American Psychiatric Association (APA) for having had at least one mental illness within four broad categories at some time in their lives. The categories were ‘anxiety disorders,’ including, among other subcategories, phobias and post-traumatic stress disorder (PTSD); ‘mood disorders,’ including major depression and bipolar disorders; ‘impulse-control disorders,’ including various behavioral problems and attention-deficit/hyperactivity disorder (ADHD); and ‘substance use disorders,’ including alcohol and drug abuse. Most met criteria for more than one diagnosis. Of a subgroup affected within the previous year, a third were under treatment—up from a fifth in a similar survey ten years earlier.” (See Marcia Angell, June 23 and July 14, 2011, in the New York Review of Books)

Of course this raises all sorts of questions, the most important of which Angell asks:

“What is going on here? Is the prevalence of mental illness really that high and still climbing? Particularly if these disorders are biologically determined and not a result of environmental influences, is it plausible to suppose that such an increase is real? Or are we learning to recognize and diagnose mental disorders that were always there? On the other hand, are we simply expanding the criteria for mental illness so that nearly everyone has one? And what about the drugs that are now the mainstay of treatment? Do they work? If they do, shouldn’t we expect the prevalence of mental illness to be declining, not rising?”

I do think American society is “sick” generally, and I think there are in fact a lot of people who are quite unhappy, miserable, anxious, fearful, and to such an extent that we cannot understand them to be in any way flourishing, mentally speaking. Does this amount to mental illness as defined by psychiatrists and psychologists? Sometimes, and of course the boundaries between unhappiness, everyday depression, and generalized anxiety or insecurity, anger or rage, and the exhibition of pathological symptoms is not always clear. In short, there is precious little evidence of eudaimonia among the populace and sufficient evidence of widespread mental illness of various kinds and degrees of severity. The main problem with the former is that it may be a breeding ground for the latter. People are in fact, at least in the first instance and as a matter of speaking, self-diagnosing (and then they proceed to the clinic, hoping for a prescription for a psychoactive drug), as well as self-medicating (is drug use declining?). 

Ross Douthout on Liberal Christianity: You'd Think the New York Times Could Do Better

On July 14, Ross Douthout wrote a column in the New York Times about “the collapse of liberal Christianity.” In particular, he focused on the Episcopalian Church which he claimed had followed retired Bishop John Shelby Spong in adopting every liberal idea ever promulgated by a liberal theologian. Spong famously denied the existence of miracles in general and the physical Resurrection of Jesus in particular. He denied the existence of a traditional God and the coherence of praying to an imaginary God who cares about what happens in the world. Douthout blames the decline in Episcopalian membership and the decline in liberal Christianity on the acceptance of liberal beliefs. He sees little difference between liberal Christianity and secular liberalism.

There is a lot that is wrong with this picture. First, there is no reason to believe that the leaders of the Episcopal Church are as theologically liberal as Spong. Indeed, Rowan Williams, the Archbishop of Canterbury, has stated that Spong’s core theological beliefs “represent a level of confusion and misinterpretation that I find astonishing” (although Williams’ own views are more nuanced than those typically understood by parishioners). See here. I can find no evidence that the Presiding Bishop of the Episcopal Church, Katharine Jefferts Schori shares Spong’s theology. In reading some of her sermons, it is clear to me that she has a quite different conception of Divine caring and human prayer. See here. I am fortified by a post by Matthew L. Skinner (an Associate Professor of the New Testament at the Luther Seminary in St. Paul) on Taryn Mattice’s Facebook page that says, “Ross Douthat is starting to drive me crazy with his consistent sloppiness as a commentator on the American religious scene. It's easy to make fun of Spong, but to strongly associate him with the recent actions of the Episcopal Church USA is... just stupid.”

Douthout’s suggestion that the decline in liberal Christianity is caused by its liberalism is marred by the triumphalist implication that the Pope of his Roman Catholicism has been wise to steer the conservative course. Douthout does not discuss the staggering exodus of Anglo-Catholics from the Catholic Church. According to Putnam and Campbell in American Grace, the decline of Anglo-Catholics in Roman Catholicism is about the same as that experienced in mainline Protestantism. They say that the second largest religious group in the United States is composed of those who have left the Catholic Church. And consider those who are left behind. The overwhelming majority of Roman Catholics reject the authority of the leadership. The majority of Catholics in the pews reject most of the stubbornly conservative teachings of the Pope and the Bishops. They stay in the Church despite these teachings, not because of them. Perhaps it is just me, but I think the crisis of authority within the Catholic Church is far more serious than the turmoil in the Episcopalian Church.

Diana Butler Bass maintains (see here thanks to Taryn for the link) that what is really going on is a loss of faith in all forms of traditional religion. I think the real story is quite complicated. Some leave churches because they are too liberal or too conservative; some leave because there has been change regardless of left/right tilt; some leave because of institutional stodginess, corruption, or beaurocracy.  And many stay. The sociology of religion defies simplicity and does not lend itself to the partisan posturing of Roth Douthout.

Most galling to me of all the Douthout claims is the assertion that the Episcopal Church (and liberal Christianity) offers little not afforded by secular liberalism. I wonder if anyone could walk into a Episcopal Church on a Sunday morning and mistake it for a secular gathering. Does Douthout really think that the sacramental life of a church is a meaningless charade? In this connection, consider Rowan Williams in response to Spong again, "I have never quite managed to see how we can make sense of the sacramental life of the Church without a theology of the risen body; and I have never managed to see how to put together such a theology without belief in the empty tomb. If a corpse clearly marked ‘Jesus of Nazareth’ turned up, I should save myself a lot of trouble and become a Quaker."

Does Douthout think that the faith experience and commitments of a congregational community are secular? Yes, there are secular aspects. But Douthout’s glib dismissal in comparing liberal Christianity and secular liberalism is journalistic malpractice.

The Spiritual in Art: Kandinsky, Murdoch, and Abhinavagupta

Wassily Kandinsky “Arab Cemetery” (1909)

At PrawfsBlawg, Marc DeGirolami writes of a small (but ‘charming’) exhibition of works by Wassily Kandinsky at the Guggenheim. You might be wondering: how does one justify such a post at a law blog? Well, Professor DeGirolami informs us that Kandinsky “was a successful lawyer and law professor—he had even been offered a chair in Roman Law at the Universität Dorpat—when he suddenly abandoned the law and applied to art school in Munich.” And how to account for the specific subject of his post? For those who may not know Marc, he is a Catholic law professor and legal theorist who regularly blogs at the Catholic legal theory blog, Mirror of Justice, hence the interest in Kandinsky as an “anti-materialist artist” (which does not mean ‘anti-matter’) and the curiosity regarding Kandinsky’s avowed philosophy of art:

“Among the items in the exhibit are some really neat first editions of his work, Concerning the Spiritual in Art—and Painting in Particular, published in 1911. When I got home yesterday afternoon, I found a translation here. Kandinsky had ambitious ideas about the power of art to achieve spiritual illumination—and in some ways to replace traditional religion for future generations.  He had some very critical things to say about ‘materialism’ in art, as well as the idea that art was to be enjoyed for its own sake.”

Marc proceeds to quote from Kandinsky’s book by way of offering a taste of his writing, which inspired me to return to the work in toto, an online version of which Marc helpfully provides us.

Herewith my comment to Marc’s post (slightly edited and with additional material):

The passages from Kandinsky’s book (which are merely representative: there are others as well) following the quoted material from Iris Murdoch and the introduction to Abhinavagupta’s rasa theory below, reveals how the Russian artist’s “triangle” is borrowed from or relies in essence upon Plato’s well-known (at any rate, at one time) metaphorical allegory of the Agathon and the Cave (and thus its vision of ‘the Good’), including the use of the “divided line” by way of representing levels of knowledge (and experience) and dialectical ascent through processes of imagination, belief, thought, and vision involving corresponding images, objects, models, and archetypes (recalling with Murdoch that Plato’s allegory involves both a dialectical ascent out of the Cave and a descending return to the darkness of the Cave by the person—here, the philosopher, and in Kandinsky’s case the artist—who has attained the vision). The ascent and descent can be formulated as the problem of the “One and the many,” and with Kandinsky it’s rendered as “the working of the inner need and the development of art is an ever-advancing expression of the eternal and objective in the terms of the periodic and subjective.” Of course there’s no little irony in the reliance on Plato, given the Greek philosopher’s spirited critique of the art and artists of his time, nonetheless, as Murdoch has demonstrated, Plato’s understanding of the true purpose and value of art was fairly complex even if rather limited in articulation. And of course, as Murdoch reminds us, Plato “was himself a great artist.” Kandinsky agrees with Plato that “bad” art revels in personal fantasy (in a pejorative if not Freudian sense) at the lowest section of the triangle wherein imagination has yet to be purified through dialectical ascent toward the Good, a process that is in the direction of unselfishness, objectivity, and (yes, true) realism. Murdoch herself makes connection between the “sovereignty of the Good” and art in her seminal essay, “The Sovereignty of Good Over Other Concepts”(which should be read as in its early published form together with ‘The Idea of Perfection’ and ‘On “God” and “Good”’). As Murdoch says,

“A great deal of art, perhaps most art, actually is self-consoling fantasy [at times, involving a perverse collaboration between the artist and the spectator], and even great art cannot guarantee the quality of its consumer’s consciousness [i.e., everyone needs to make the ascent toward the Good, not just the artist]. However, great art exists and is sometimes properly experienced and even a shallow experience of what is great can have its effect [e.g., it may inspire us to move in the right direction as it were]. [Good] art…affords us pure delight in what is excellent. Both in its genesis and in the enjoyment it is a thing totally opposed to selfish obsession. It invigorates our best faculties and, to use Platonic language, inspires love [eros] in the highest part of the soul. [….] Art is a human product and virtues as well as talents are required of the artist. The good artist, in relation to his art, is brave, truthful, patient, humble…. [….]

Art then is not a diversion or a side issue, it is the most educational of all human activities and a place in which the nature of morality can be seen. Art gives a clear sense to many ideas which seem puzzling when we meet them elsewhere, and it is a clue to what happens elsewhere. [….] Good art, unlike bad art, unlike ‘happenings,’ is something pre-eminently outside us and resistant to our consciousness. We surrender ourselves to its authority with a love which is unpossessive and unselfish. Art shows us the only sense in which the permanent and incorruptible is compatible with the transient; and whether representational or not it reveals to us aspects of our world which our ordinary dull dream-consciousness is unable to see. Art pierces the veil and gives sense to the notion of a reality which lies beyond appearance [i.e., Kandinsky’s ‘materialism’]; it exhibits virtue in its true guise in the context of death and chance.”

In Indian aesthetics, and speaking in this instance with regard to the art of poetry, the great Kashmiri Śaiva philosopher Abhinavagupta (c. 950-1015) argued that, properly conceived and executed, a poem’s cognitive content allows our own mental states to be objectively perceived by awakening latent memories, impressions or dispositions. The resulting rasa experience (on ‘rasa’ theory, see Chari’s book) is said to be self-validating (or –certifying) (svatah prāmana, the notion that the validity of a cognitive episode or knowledge is present in the material that creates the object and that the awareness of this validity arises spontaneously with that episode or knowledge itself; for example, in Advaita Vedānta, awareness is said to be self-validating—and self-illuminating—such that the doubt ‘Am I aware or not?’ cannot occur). The self-validating character of rasa experience appears to countenance the idea that, in the end, such experience is a species of self-knowledge, in Abhinavagupta’s words, “a form of self-contemplation.” Thus “rasa as ‘aesthetic flavour’ comprehends both the arousal and development of an aesthetic emotion in the mind of the aesthete, as well as the objective components of the art object, which arouse and sustain that emotion” (Harsha Dehejia). This is one way we might make sense of the psychological and epistemic mechanisms behind Murdoch’s claim that good art “affords us pure delight in what is excellent,” and why “Good art shows us how difficult it is to be objective by showing us how differently the world looks to an objective vision.” Indeed, this explains why art is capable of

“transcend[ing] selfish and obsessive limitations of personality and can enlarge the sensibility of its consumer. It is a kind of goodness by proxy. Most of all it exhibits to us the connection, in human beings, of clear realistic vision with compassion. The realism of a great artist is not a photographic realism, it is essentially both pity and justice. [….] [Good art] breaks the grip of our own dull fantasy life and stirs us to the effort of true vision. Most of the time we fail to see the big wide real world at all because we are blinded by obsession, anxiety, envy, resentment, fear. We make a small personal world in which we remain enclosed. Great art is liberating, it enables us to see and take pleasure in what is not ourselves.”

Rasa theory claims there are eight—or after Abhinavagupta, nine—basic (aesthetic?) emotions: sexual love, comic laughter, grief (includes pity), rage or anger, courage (the ‘heroic emotion’), fear, revulsion (or disgust), wonder (or amazement), and tranquility (‘the rasa of rasas’). It is such basic emotions, rather than the more numerous and simply occurrent or transient emotions (e.g., envy, intoxication, shame, and anxiety) that are capable of being expressed as corresponding aesthetic moods or rasas, although occurrent emotions or mental states can accompany, intensify, support, or contrast more basic, stable, and dispositional emotions. It can be argued that Abhinavagupta’s metaphysical preoccupations took his rasa theory beyond aesthetics proper insofar as such delectation or profoundly joyful experience is said to serve as a foretaste of the bliss of emancipation or moksa (as formulated within the terms of the ‘integral monism’ of Kashmir Shaivism).

Kandinsky:

“The spiritual life, to which art belongs and of which she is one of the mightiest elements, is a complicated but definite and easily definable movement forwards and upwards. This movement is the movement of experience. It may take different forms, but it holds at bottom to the same inner thought and purpose.

Veiled in obscurity are the causes of this need to move ever upwards and forwards, by sweat of the brow, through sufferings and fears. When one stage has been accomplished, and many evil stones cleared from the road, some unseen and wicked hand scatters new obstacles in the way, so that the path often seems blocked and totally obliterated. But there never fails to come to the rescue some human being, like ourselves in everything except that he has in him a secret power of vision.”

“The life of the spirit may be fairly represented in diagram as a large acute-angled triangle divided horizontally into unequal parts with the narrowest segment uppermost. The lower the segment the greater it is in breadth, depth, and area.”

“Painting is an art, and art is not vague production, transitory and isolated, but a power which must be directed to the improvement and refinement of the human soul—to, in fact, the raising of the spiritual triangle.”

References & Further Reading:

• Chari, V.K. Sanskrit Criticism. Honolulu, HI: University of Hawaii Press, 1990.
• Coomaraswamy, Ananda K. Christian and Oriental Philosophy of Art. New York: Dover Publications, 1956 (1943, Luzac & Co., Ltd., as Why Exhibit Works of Art?).
• Eco, Umberto. Art and Beauty in the Middle Ages. New Haven, CT: Yale University Press, 1986.
• Gaut, Berys. Art, Emotion and Ethics. New York: Oxford University Press, 2007.
• Gonzalez, Francisco J. Dialectic and Dialogue: Plato’s Practice of Philosophical Inquiry. Evanston, IL: Northwestern University Press, 1998.
• Iyer, Raghavan. “Agathon and the Cave,” in Iyer’s Parapolitics: Toward the City of Man. New York: Oxford University Press, 1979: 37-49.
• Kuspit, Donald. The End of Art. Cambridge, UK: Cambridge University Press, 2004.
• Masson, J.L. and M.V. Patwardhan. Śānta Rasa and Abhinavagupta’s Philosophy of Aesthetics. Poona: Bandarkar Oriental Research Institute, 1969.
• Murdoch, Iris. The Sovereignty of Good. London: Routledge, 1970.
• Murdoch, Iris. Existentialists and Mystics: Writings on Philosophy and Literature (Peter Conradi, ed.) New York: Penguin Books, 1999.

John Stuart Mill: betwixt and between antipaternalist liberalism and eudaimonistic perfectionism

The following is from an interesting comment thread provoked by a post at Warp, Weft, and Way (a Chinese philosophy blog) that linked to an op-ed in the New York Times (July 10, 2012) by Jian Qiang and Daniel A. Bell on “a Confucian Constitution for China.” As you might guess, at one point Mill is brought into the discussion, although it took me a while to consider precisely how Mill might indeed be relevant to our conversation. This being a blog comment, what follows should be considered more or less “seed-thoughts” capable of germination. 

I’d like to say a few things about Mill (standing on the shoulders of others) relevant to my earlier comments, some remarks by Alexus [McLeod], and the response here by Bill [Haines]. In some respects, I think it reveals how even a “Millian” might be sympathetic to at least the efforts of Jiang and Bell. The portrait of Mill I have in mind is in large measure captured by the discussion of his thought in Kwame Anthony Appiah’s book, The Ethics of Identity (2005), which provides in some respects a more nuanced and thus original interpretation of the younger Mill’s thoughts on democracy, politics, community, identity, and so forth than one finds in the secondary literature that invokes his ideas on these subjects.

It’s interesting to recall what J.S. Mill wrote in Considerations on Representative Government: “The first element of good government…being the virtue and intelligence of human beings composing the community, the most important point of excellence which any form of government can possess is to promote the virtue and intelligence of the people themselves.” Mill did believe representative government was the best form of collective government “because it is uniquely qualified as the staging-ground in which the latent, merely potential capacity of individuals for self-government can be developed. This is because democracy is participatory collective government and thereby encourages the active character-type against the passive….” (David L. Norton*) Mill described or defined political participation as the “school of public spirit” owing to its capacity for encouraging the moral self-development of individuals, as it involves serving the public spirit in a way that transcends the exclusive self-interests of the individuals qua individuals. For Mill, in what may sound strange to our ears today, given the cynicism and apathy that surrounds the mere mention of “the political,” political participation is tantamount to “salutary moral instruction.” As Norton rightly points out, the role Mill assigns to political participation is “too great to be generalized,” reminding one of the more unrealistic proposals for participatory democracy for all, or most of, what ails us.

While the kind of political participation Mill had in mind was eminently reasonable: voting, jury duty, and service on parish councils, for example, “it borders on giddy optimism to anticipate that from it the large strides in the moral self-development of individuals that Mill describes.” Politics is many things, not all of them degrading or pernicious, and much of politics is worthy of vigorous defense (cf. Bernard Crick, In Defense of Politics, 1962, and Matthew Flinders, Defending Politics: Why Democracy Matters in the Twenty-First Century, 2012), but so little of politics today strikes one as on the order of a “school of public spirit,” although admittedly our views are often distorted by mass media representations of “the political” and corresponding meager public knowledge or appreciation of the less or “invisible” work of politicians and public officials we routinely take for granted (see, for example, and just with regard to legislators, Jeremy Waldron’s Law and Disagreement, 1999, and The Dignity of Legislation, 1999). To some extent, Mill appreciated this fact, thereby setting conditions on that type of politics equivalent to a “school of public” spirit so as to enable the bulk of its participants to identify and emulate, that is, show deference to, their moral betters (exemplars of technical and moral excellence). Mill, like the authors of the Federalist Papers, was concerned about the tyranny of the majority, and his conditions were one way of avoiding or minimizing the effects of such tyranny. These conditions included “plural voting” and the “transferable vote,” the former meaning persons of “higher” occupational status (or superior education) are accorded extra votes on the belief that they are above average in moral development! In any case, there does not appear in Mill an independent argument for accounting precisely why we “deference” mechanisms will operate even in these cases.

Mill was right, I think, to attempt to tie individual self-development or self-determination and self-fulfillment, what we’ll loosely refer to as the basis of eudaimonia, to collective self-governance, but perhaps wrong to look in the first place to government or the State as the means for this linkage rather than, say, the “community” (which need not, indeed, and with Norton and others, I believe should not, be defined in ‘communitarian’ terms) in which a well-lived life involves individuals recognizing and utilizing values produced and exemplified by others, a mutual interdependence of values recognition and realization wherein individuals have a moral obligation to realize objective value in the world as part of the process of self-actualization and self-governance.

As I said in an earlier comment, the primary role of democratic government dedicated to the Good is thereby located in its provision of the material or practical conditions for same that are not self-suppliable by these individuals (probably something not far from what historically is identifiable as the social democratic form of the welfare state, the other main forms being ‘corporatist’ and ‘liberal’). The State, in other words, grants universal entitlement to necessary non-self-suppliable conditions so individuals can engage in autonomous projects of self-realization in community, a process that amounts to individuals interdependently creating the common good, a common good that is the joint enterprise of both individuals-in-community and the democratic State (this overcomes the tensions in Mill’s thought between the classical liberal conception of the individual and more eudaimonistic conceptions of same, or between what Kwame Anthony Appiah calls his antipaternalism and perfectionism).

* The Norton reference is from his book, Democracy and Moral Development: A Politics of Virtue (1991).

Why the Citizens United Decision was Bad for Conservatives

From the perspective of conservatives, Citizens United was an unnecessary decision. The Court had already held that corporations could spend unlimited amounts on political advertising with the intent and the effect of electing candidates of their choice, so long as they did not specifically use the magic words advocating the election or defeat of an candidate. Short of that, all-out attack ads regarding a candidate were fully protected by the Roberts Court. Permitting the use of the magic words added little of substance.

But the decision unleashed a political whirlwind against the role of business corporations in politics, and deep concerns about the integrity of the democratic process and the Court itself. Those concerns about the Court came home to roost in the most significant case of this term.

It is now widely perceived that the Chief Justice was forced to abandon the conservatives in order to uphold the core of the Affordable Health Care Act. He did that so that the reputation of the Court was not further tarnished. But if he had not lead the Court to the unnecessary opinion in Citizens United, he would have had more freedom to maneuver.

Now that he has upheld the Affordable Health Care Act, he is free for some time to enact his ideological agenda. Alas, this is not good news for the Voting Rights Act or affirmative action this coming term.    

Global and Environmentally Sensitive “Food Justice”

At Crooked Timber this morning, John Quiggin draws our attention to a debate about producing and consuming “local food,” a debate in part driven by an ecological concern with “food miles.” One side of this debate is captured in the abstract from the article by Pierre Desrochers and Hiroku Shimizu (here associated with the Mercatus Center at George Mason University):

“As modern food production and distribution becomes ever more complex and globalized, a ‘buy local’ food movement has arisen. This movement argues that locally produced food is not only fresher and better tasting, but it is also better for the environment: Because locally produced food does not travel far to reach your table, the production and transport of the food expend less energy overall. The local food movement has even coined a term, ‘food miles,’ to denote the distance food has traveled from production to consumption and uses the food miles concept as a major way to determine the environmental impact of a food.

This Policy Primer examines the origins and validity of the food miles concept. The evidence presented suggests that food miles are, at best, a marketing fad that frequently and severely distorts the environmental impacts of agricultural production. At worst, food miles constitute a dangerous distraction from the very real and serious issues that affect energy consumption and the environmental impact of modern food production and the affordability of food.

The course of the debate over food miles is nonetheless instructive for policy makers. It highlights the need to remain focused on the issues that are important—in this case, the greenhouse gas emissions of highly subsidized first-world agriculture, the trade imbalances that prevent both developed and developing countries from realizing the mutual benefits of freer trade, biofuel subsidies, and thirdworld poverty. With the population of the planet growing rapidly, numerous food policy issues other than food miles should preoccupy policy makers.”

Desrochers and Shimizu have expanded their argument into a book, The Locavore’s Dilemma: In Praise of the 10,000-Mile Food Diet (New York: PublicAffairs, 2012).

At AlterNet, Jill Richardson does not address their specific argument head-on, but prefers instead to attack the putative inability of neo-classical economic assumptions and models to properly address the relevant issues she believes are raised in any such debate. At Crooked Timber, Quiggin himself highlights some surprising ideological inconsistencies in the argument, at least insofar as we entertain certain expectations regarding the parameters of this debate, given the political and economic orientations of the respective parties. As for the debate itself, I think Desrochers and Shimizu have the better argument on the specifics, while Richardson appropriately raises several of the more important variables necessary for addressing health and justice issues generally with regard to the production and consumption of food, both here and abroad. In some respects, this is a perfect example of a debate in which the parties are, to a considerable extent, speaking around and past one another.

For my part, I put together the following list of titles I believe are useful—indeed, fundamental—for thinking about the subject matter of this discussion, which should be conducted within the framework of an environmentally* sensitive concern with global distributive justice:

• Bardhan, Pranab, Samuel Bowles and Michael Wallerstein, eds. Globalization and Egalitarian Distributive Justice (Princeton, NJ: Princeton University Press/New York: Russell Sage Foundation, 2006)
• Barry, Christian and Thomas W. Pogge, eds. Global Institutions and Responsibilities: Achieving Global Justice  (Malden, MA: Blackwell, 2005)
• Brock, Gillian. Global Justice: A Cosmopolitan Account (New York: Oxford University Press, 2009)
• Clapp, Jennifer and Peter Dauvergne. Paths to a Green World: The Political Economy of the Global Environment (Cambridge, MA: MIT Press, 2005)
• Dasgupta, Partha. Human Well-Being and the Natural Environment (New York: Oxford University Press, 2001)
• Drèze, Jean and Amartya Sen. Hunger and Public Action (New York: Oxford University Press, 1989)
• Drèze, Jean, Amartya Sen, and Athar Hussain, eds. The Political Economy of Hunger (New York: Oxford University Press, 1995)
• Gottleib, Robert and Anupama Joshi. Food Justice (Cambridge, MA: MIT Press, 2010)
• Jasanoff, Sheila and Marybeth Long Martello, eds. Earthly Politics: Local and Global Environmental Governance (Cambridge, MA: MIT Press, 2004)
• Light, Andrew and Avner de-Shalit, eds. Moral and Political Reasoning in Environmental Practice (Cambridge, MA: MIT Press, 2003)
• Miller, Richard W. Globalizing Justice: The Ethics of Poverty and Power (New York: Oxford University Press, 2010)
• O’Brien, Mary. Making Better Environmental Decisions: An Alternative to Risk Assessment (Cambridge, MA: MIT Press, in association with the Environmental Research Association, 2000)
• Patel, Raj. Stuffed and Starved: The Hidden Battle for the World Food System (Brooklyn, NY: Melville House, Melville House Publishing, 2007)
• Sen, Amartya. Poverty and Famines: An Essay on Entitlement and Deprivation (New York: Oxford University Press, 1981)

* “Environmentally” rather than simply “ecologically” because the former term includes yet transcends what falls within the rubric of the sciences of ecology.

See too this April 2008 post from Ratio Juris: “The Ecological and Political Economy of Hunger.”

The 40th Anniversary of Watergate

This being the the 40th anniversary of the Watergate break-in, I thought I’d mention three books to read by way of memorializing this ignominious event in our political history:

Ellsberg, Daniel. Secrets: A Memoir of Vietnam and the Pentagon Papers (New York: Viking Penguin, 2002)

Kutler, Stanley I. The Wars of Watergate: The Last Crisis of Richard Nixon (New York: W.W. Norton & Co., 2012 ed.)

Rudenstine, David. The Day the Presses Stopped: A History of the Pentagon Papers Case (Berkeley, CA: University of California Press, 1996)

“What did the president know and when did he know it?”—Howard Baker, Tennessee Republican and co-chair of the Senate Watergate Committee.

“I am not a crook.”—Richard Nixon, denying his involvement in the Watergate scandal to a group of newspaper editors.

“Expletive Deleted”— a frequent editorial insertion in transcripts of tapes recorded in the Oval Office to replace coarse language.

“Deep Throat”—the name given to the secret source that informed Washington Post reporter Bob Woodward of the depth of executive branch involvement in Watergate and other illegal activities.

“Dirty Tricks”—a phrase used to describe tactics designed to disrupt a political opponent’s campaign events or to distribute disinformation. 

See too Chapman Law Review Symposium, The 40th Anniversary of Watergate: A Commemoration of the Rule of Law (January 27, 2012) from the Webcast Archives at Chapman University School of Law.

NRLC Misrepresents Independent Payment Advisory Board

The National Right to Life Committee (NRLC) has issued a document titled Life at Risk: How the Obama Health Care Plan Will Ration Your Family’s Medical Treatment—A Factsheet. It gets its very first "fact" seriously wrong.

From the NRLC document:

HOW THE OBAMA HEALTH CARE LAW WILL LIMIT WHAT HEALTH CARE PROVIDERS CAN DO TO SAVE THE LIVES OF YOUR FAMILY MEMBERS

 A Powerful Rationing Commission:

An 18-member “Independent Payment Advisory Board” is given the duty, on January 15, 2015 and every two years thereafter, with regard to private (not just governmentally funded) health care, to make “recommendations to slow the growth in national health expenditures” below the rate of medical inflation.

 

NRLC has it wrong. If you go to the link and look at the chart on page 3 of their document, you will find that NRLC is claiming for 2015, for example, the Independent Payment Advisory Board (IPAB) must limit healthcare spending growth to the lesser of (A) "halfway between medical and general inflation" and (B) 0.5%. That is a mistaken interpretation of IPAB's mandate. What is actually the case for 2015 is that IPAB does nothing unless Medicare spending is projected to exceed "halfway between medical and general inflation" (something which for 2015 may not even happen).  If it does indeed happen, IPAB will be required to make proposals to cut costs by no more than 0.5%.

From 2018 onward, NRLC claims IPAB must make recommendations to limit spending to (A) the percentage increase in GDP plus 1%  or (B) 1.5%, whicever is lower. However, what is actually the case is that if Medicare spending is projected to grow at less than GDP plus 1%, IPAB does nothing, and if projected Medicare spending does exceed GDP plus 1%, IPAB makes recommendations to cut Medicare costs by no more than 1.5%.

So NRLC has it wrong. IPAB is required to make recommendations to cut Medicare spending by at most 1.5% a year no matter how fast Medicare grows.  IPAB is not tasked with keeping Medicare spending below any certain level, as NRLC suggests, and certainly not below the level of medical inflation! And as for nonfederal spending, IPAB makes only recommendations. It has no power to implement them.

Analytic Philosophy, the “Big Questions,” and Rhetorical Sensitivity

At the U.S. Intellectual History blog, Ben Alpers has a nice discussion of the latest post on the New York Times philosophy blog, The Stone (hence this is a blog post on a blog post on a blog post). I’m not here interested so much in the specific questions that arise from Jim Holt’s piece in The Stone: “Is philosophy literature? Do people read philosophy for pleasure?” “Does anybody read analytic philosophy for pleasure? Is this kind of philosophy literature?” Rather, I’m more drawn to the questions raised at the end of Alpers’ reflections, as it broaches the subject matter of my last post on “therapeutic philosophy,” including Manyul Im’s perceptive comment on that post:

[….] “When it comes to literary qualities, Willard Quine is not Plato or Friedrich Nietzsche, but I don’t think Holt has to prove that he is.  Those who’ve read, say, Word and Object, know that Quine could certainly turn a phrase and could write very clearly about complicated and potentially abstruse issues.  I have no problem whatsoever seeing Word and Object as a literary work (in Waugh’s sense).

Yet, it is also true that very, very few people read Word and Object (which is one of the great classics of analytic epistemology, for what it’s worth) outside philosophy classes. And Quine is hardly even a household name.

Compare and contrast Quine to John Dewey.  Nobody, I think, has ever tried to make a case for Dewey as a prose stylist. Indeed, his turgid writing famously prompted Oliver Wendell Holmes to declare that Dewey wrote ‘as God would have spoken had He been inarticulate but keenly desirous to tell you how it was.’  And yet Dewey was a household name, with enormous intellectual purchase beyond philosophy and beyond the academy.  Indeed, plenty of philosophers who've enjoyed enormous influence and popularity have been difficult or even poor writers. Hegel and Heidegger are two examples that spring to mind.

Yes, people savor the literary qualities of well-written philosophy. But people read philosophy because they think they are going to learn something about ‘big questions:’ how the world is, how we understand the world, how to live a good life, how to identify (or bring about) a good society, and so forth.  I think people beyond philosophy departments remain interested in these questions. But, for decades, they generally haven’t much been interested in the kind of answers that Anglo-American philosophy departments have given to them.  Why they haven’t is an interesting question. But I suspect the problem has little to do with whether or not Saul Kripke, David Lewis, or John Searle are good prose stylists.”

Herewith my comment to Alpers above:

As Avrum Stroll reminds us in Twentieth-Century Analytic Philosophy (2000), analysis as such in the West goes back to ancient Greek philosophy, evidenced, for example, in Socrates’ dialectical examination of concepts like justice or the Stoic treatment of the emotions (for analytic philosophy in early modern India, see here). Insofar as, historically, what has counted for “analytic philosophy” has been identified or associated with formal logic, or viewed as a handmaiden of science (i.e., used largely for conceptual underlaboring or analysis and clarification of the concepts of science and perhaps even the concepts of everyday language, especially as those might be seen as ‘proto-scientific’ or in conflict with science), or believed a philosophical account of thought must be dependently bound to a philosophical account of language, it has tended toward an insular if not inaccessible rhetoric that by design or default rules out, or is quite skeptical of, different approaches to and topics of philosophy. In effect, this has meant that “analytic philosophy” has often been linked to specific philosophical doctrines, ideologies, or schools, although this connection is a purely contingent and not necessary one. What has exacerbated the negative features of this connection is a rhetoric or rhetorical style cultivated within a specialized realm of the respective doctrines, ideologies or schools. Fortunately, collective self-examination and critiques from within philosophy, as well as laments and critiques from outside philosophy proper (say, from the humanities more generally), has meant that today it is possible, and often the case, that many of the real and putative virtues associated with an “analytical” approach have transcended specific philosophical commitments and doctrines, ideologies and schools. So, for example, we no longer speak of a structural conflict of sorts between “analytic” and “continental” philosophy, and thus even those with phenomenological preferences or proclivities or sensibilities, like the late Richard Wollheim, or those associated with “naturalizing phenomenology,” can display all the characteristics one associates with an analytic approach to philosophical questions.

Given the breadth and depth of specialization in contemporary philosophy, and for better and worse, it is not surprising that whatever may loosely fall within the rubric of analytic philosophy is going to read as if it was, as it often is, intended for one’s peers in a particular specialized field, including, the editors and referees of the relevant journals. Yet today there is a fairly large number of what we can justly term “analytic philosophers” who’ve demonstrated an ability to also write in a manner accessible to the rest of us (which itself remains a fairly small circle within the general public): Thomas Nagel, Amélie O. Rorty, the late Robert C. Solomon, Kwame Anthony Appiah, Hilary Putnam, Joel Kupperman, Martha C. Nussbaum, Annette C. Baier, John Searle, Avrum Stroll, the late Peter Goldie, C.A.J. (Tony) Coady, Oliver Leaman, John Cottingham, John Haldane, Herbert Fingarette, Simon Blackburn, and Jonathan Lear (among not a few others: these came quickest to mind and it would be tedious to construct a long list). A handful of contemporary analytic philosophers, like Owen Flanagan and some of the “new atheists” of avowedly naturalist suasion and commitment have even attempted to address the “big questions,” those often classed within “the meaning of life.” Insofar as the general public still subscribes to religious or spiritual worldviews, this literature will probably fall on deaf ears, or at least not be at all persuasive.

In conclusion, an analytical approach to philosophical topics, problems, and puzzles need not be, even if it often is, couched in an inaccessible rhetoric, meaning one penned to meet the criteria and standards articulated in a specialized vocabulary intended solely for one’s professional peers. As John M. Cooper writes, “One can hold interesting and engaging views on the metaphysics of personal identity, or the metaphysical analysis of physical objects, or adopt a fallibilist epistemological analysis, and, again, a Humean theory of motivation, without seeing any necessary connections among any of these, or any significant  consequences for normative ethics.” This disciplinary division of cognitive labor goes hand-in-hand with the fact that “[m]ost philosophy today is truly an exclusively theoretical discourse, with no direct connection to the conduct of one’s life.” The early history of philosophy in the West involved a study of basic (or axiomatic) principles, theories, arguments, and analyses within the categories of ethics, (meta)physics, and dialectic (which included what today we classify under logic, philosophy of language, and epistemology), which together composed a more or less coherent philosophical worldview (be it Platonic, Aristotelian, Skeptical, Epicurean, Stoic, Neo-Platonic...) that was thought to provide the sort of knowledge and wisdom necessary to living the best sort of life, a philosophy sufficient for virtue and eudaimonia. Some of these issues are today being discussed and to some extent addressed within the profession itself, as seen in the emergence of the Society for Applied Philosophy, “founded in 1982 with the aim of promoting philosophical study and research that has direct bearing on issues of practical concern.” Only a serious and sensitive consideration of what we’ll term rhetorical issues, will find analytic approaches written in a manner accessible to the rest of us. And only a profound reflection on the notion of philosophy as a “way of life,” or therapeutic philosophy, will result in a philosophical praxis that is capable of displaying not only analytic virtues, but the greater virtues of wisdom and compassion an educated public expects from its philosophers, an expectation that, in the West at least, goes back to ancient Greece and Rome.