ReligiousLeftLaw.com

Unjust Prison Conditions and the First Amendment

Sarah Betsy Fuller, a clinical professor at the Cornell Law School devoted much of her life to combating unjust prison conditions. See here. At her funeral service in 2004, a close friend quoted her as saying that a society should be judged not by its artistic or scientific contributions, but by how it treats its prisoners. Even before Betsy’s death, the Prison Litigation Reform Act (PLRA) imposed burdensome restrictions on getting access to court to challenge unjust prison conditions.  

As it stands today, a promising alternative to lawsuits is to get the media to shine a spotlight on prison practices. What stands in the way of this is an excessively restrictive interpretation of press rights under the First Amendment. Of course, it makes sense that there is no general public right of access to prisons to interview prisoners. But the public loses when the press does not have such a right. If the press had such a right, the public would have known about the barbaric abuses in Guantanamo and elsewhere long before they came to public attention. Yet for many years, it has been well established that the press has no right of access to prisons to investigate abuse. Well established though it may be, it is blind to what the rights of the press ought to be.

Alternatively, prisoners can send mail to members of the press. But prison officials commonly open such mail before it leaves the prison in the interests of “security.” All too often, this inspires fear of retaliation (if not, actual retaliation), and the fear of retaliation has a chilling effect on what prisoners say.  To guard against this and to promote the possibility of petitioning for redress of grievances, Judge Wisdom ruled  that prisoners’ letters to the media are essentially privileged and cannot be opened by prison officials. Taylor v. Sterret, 532 F.2d 462 (1976). The Seventh Circuit disagrees.

So in the Seventh Circuit and elsewhere, the right of the public to learn about abuses in prison is given short shrift and the First Amendment is enlisted in support of this deplorable outcome. This is simply shameful. 

Secular Human Rights v. Religion

 In a recent post at First Things, Mark Movsesian makes some observations about Roger Scruton’s The Future of European Civilization: Lessons for America. Movsesian is particularly interested in human rights which Scruton views as a European religion replacing Christianity, at least for European elites. Scruton faults human rights for lacking grounding and for being indeterminate because of that lack of grounding. That is, there is wide disagreement as to what is and is not a human right. To this, Movsesian observes that Christians disagree about what Christianity teaches in a wide variety of important circumstances. So on this ground, Christianity has no advantage.

Movsesian imagines that Scruton might respond that the dominant strand of secular human rights thought denies any objective truth claims, so there can be no objective basis for adjudicating between varying human rights claims. If this were true, however, human rights thought would be indefensible. If there is no such thing as an objective truth claim, there is no basis for claiming that it is wrong to torture, to napalm babies, or to violate any human rights. But I think the dominant strand of European thought is not so simple minded. And even if it were, it is best to confront a more sensible response, a response that affirms the existence of a moral reality (perhaps one grounded in the flourishing of sentient beings).

It seem to me that defenders of morality and human rights have no knock out blows to defend their positions; but neither do defenders of religion including Christianity. This makes neither of them wrong. Human rights independent of religion and/or God might exist even if we do not have the resources to prove their existence. Moreover, the connection between morality (and human rights) and God is itself complicated. Suppose God asks us to violate human rights (gratuitous torture). Should we abide by the request (think of Abraham and Isaac), or should we say that a genuine God would not ask us to violate human rights? If the latter, don’t the religious need to know what rights are human rights?

In the end, I think the grounding of religion does not deductively lead to clear, let alone, easy answers in a broad swath of moral questions that arise in the course of a complex social existence. Surely, there is no better agreement about what rights are human rights in the religious community than in the elite European secular community. The stones thrown at human rights secularists (at least on the account of Movsesian) seem to be thrown from a glass house. In the end, I suspect that those who attack the non-religious defenders of human rights and those who attack the religious tell us as much or more about themselves than about those they attack.

Agrarian Revolution: Marxist Sociology & Exemplary Social Science

In the course of reading and research for a bibliography on “philosophy, psychology, and methodology for the social sciences,” I came across an intriguing discussion of a book by Jeffery M. Paige, Agrarian Revolution: Social Movements and Export Agriculture in the Underdeveloped World (New York: Free Press, 1975). Paige’s study is invoked by Harold Kincaid in Philosophical Foundations of the Social Sciences: Analyzing Controversies in Social Research (Cambridge University Press, 1996) as “an exemplary piece of social science research.”* I was particularly intrigued owing to my professional (such as it is, being an adjunct instructor) and political interest—to put it blandly—in (among other things) Marxism, for Paige is motivated by a Marxist sociological orientation in ascertaining “the primary causes of agrarian behavior, particularly in developing countries,” yet his study is not simply a predictable or banal academic exercise of “doctrinaire Marxism.” As Kincaid proceeds to show us, Paige “modifies the Marxist view at many places” while producing a “sophisticated statistical cross-national study of agrarian revolutions, revolts, and reform movements.”

The research, hypothesis and conclusion of Agrarian Revolution well demonstrates how good social science (or good natural science, for that matter) is not constrained by “formalized theories with tight deductive structures” in producing well-confirmed explanations, in this instance, “large-scale macrosociological claims being “backed up with lower-level mechanisms.” In brief, “good [natural and social] science can proceed without theories,” at least “theory” as understood by positivists, including most post-positivists. Kincaid helps us appreciate precisely why we should be perfectly content with “batches of particular causal explanations” sans any formal theoretical edifice. He provides a number of reasons why the absence of theory should not be construed as a fatal flaw, only one of which I cite:

“Confirmation and explanation can proceed without theories. Obviously even singular causal claims can be confirmed without us having access to any very elaborate theory, for we do so constantly in everyday life when we see the rock broke the window or the nail puncture the tire. Moreover, the low-level generalizations that make up much social science do have numerous epistemic ties to other generalizations, specific facts, and so on. Such ties fall short of a deductively closed, axiomatized system, but they nonetheless provide room for cross tests, fair tests, and independent tests—as indicated by the fact that much testing in natural science depends on skills that may not be explicitly described or describable, on piecemeal knowledge, and the like, as Kuhn pointed out. Finally…[as argued earlier], universality and unification are not essential to explanation, hence one main motivation for demanding highly developed theories is misplaced. So the causal accounts produced by the social sciences can provide well-confirmed explanations without providing extensive theories.”

Paige’s primary hypothesis—perhaps not surprising given his sociological background in Marxism—is that “class structure largely determines political behavior in developing countries.” The preface to Agrarian Revolution, however, puts this hypothesis in socio-economic and political context and proffers several reasons why it’s worthy of social scientific examination and “testing.” For many if not most of Paige’s reading public, the specific subject matter is not one they’ll be intimately familiar with, for it focuses

“on the politics of people who draw their living from the land, both those who perform the physical labor of cultivation in the fields and plantations of the underdeveloped world and those share the proceeds of this labor in the form of rent, profits, interest, and taxes. It is also a book about conflict over the wealth produced by the land, the control of the land itself, the political power that makes that control possible, and, in many cases, the survival of one class or another. This conflict is frequently a matter of small bargains and local compromises, but from time to time it explodes into revolutionary movements which engulf whole societies, and it is these agrarian revolutions in the export economies of the underdeveloped world in general and in the cases of Peru, Angola, and Vietnam in particular which are the principal concerns of this book. Although these rural social movements involve extraordinary rather than ordinary political happenings, the politics of revolutionary change, like the politics of everyday life, is shaped by the relationship between upper and lower classes in rural areas. The nature of this conflict and political choices open to both classes are limited by the irreducible role of land in agriculture and by the compelling force of the international market in agricultural commodities. If conflicts between cultivators and noncultivators so often lead to hard choices between repression and revolution, it is because the control of landed property and the exigencies of efficient production leave them with few other alternatives. Both upper and lower agrarian classes use force in economic conflicts not because they have not carefully considered all possible alternatives, but because they have. There is a calculus of force just as orderly and rational in its way as the principles of economics, and despite the passions which surround this violence, it is important to realize that men risk their lives only with the greatest reluctance; when, in Peru, Angola, or Vietnam, they do so, it is usually because their opponents have left them with no other choice.”

Relatedly, we should recall with Paige the geo-political dynamics of the period in question, especially as they involve U.S. foreign policy (as well the behavior of transnational corporations and capitalist investors) in the various regions of the “underdeveloped” world:

“…[I]t is important to note at the outset that this book grows out of the fundamental questions raised by United States involvement in revolutionary movements in the underdeveloped world in general and Vietnam in particular. In Peru, Angola, Vietnam, and many other areas of the underdeveloped world the United States has chosen to side with the landlords and plantation owners against the peasants, sharecroppers, and agricultural laborers who took up arms against them. American military alliances, American trained officers, American military aid and equipment, and, finally, American armed forces have been used either singly or in combination, against the peasants of the Peruvian sierra, the contract laborers of northern Angola, and the tenant farmers of the Mekong delta of Vietnam. [….] At minimum, then, this book attempts to raise the question of whether most of us, had we been in the selva of Peru, the jungles of Angola, or the rice paddies of Vietnam, would have supported the landlords or the laborers.”

The historical, socio-economic, and political scene in place, we’ll let Kincaid introduce the specific agrarian economic systems that form the backbone of both Paige’s principal and ancillary hypotheses:

“The social classes in agrarian systems are of two basic kinds, depending on whether they are composed of cultivators or non-cultivators. Cultivators include sharecroppers, resident wage laborers, peasants with small holdings, and usufructuaries; noncultivators are the landed aristocracy and agricultural corporations. These cultivators and noncultivators in turn fall into different classes depending on the source of their income, in particular on whether their income comes primarily from land, capital, or wages.

Four basic agrarian class systems are thus possible. In the first type of system, both cultivators and non-cultivators draw their income primarily from rights to the land than from capital or wages. The most common system of this type is the commercial hacienda or manor. It is an individually owned enterprise which does not depend essentially on power-driven processing machinery or other similar capital investments; its workers typically receive compensation by rights to cultivate small plots of land. In the second type of system, non-cultivators draw their income from the land and workers are paid in wages. Usually these systems involve large estates with little or no power-driven machinery and workers who are either sharecroppers or migratory wage laborers. In the third type, non-cultivators draw their income in large part from capital investments and workers are paid in wages. Plantations owned by a commercial cooperation typify this sort of system. Crops are processed on site by power-drive machinery and workers are more or less permanent residents who are paid in money-wages. In the fourth type, non-cultivators depend primarily on capital and the cultivators depend primarily on land. Prime examples include small family farms or small-holding peasants producing a cash crop and sold to a large agricultural corporation.

Paige predicts that these different economic systems will produce different types of political behavior. To derive these specific hypotheses, Paige looks at how income source affects cultivators and non-cultivators separately. Using those hypotheses he then predicts what happens when those separate behaviors are combined in the four basic class systems.”

For reasons of length and wanting to avoid testing the reader’s patience, we’ll omit the specific hypotheses as they pertain to cultivating and non-cultivating classes and behavior and share the conclusion he draws from them that permits Page “to predict how different class systems affect agrarian political behavior.”

[1.] “When owners depend upon capital and cultivators on wages (as in large plantations), Paige predicts that cultivators will engage in collective action, but action limited to economic issues such as wages and working conditions and action that ends in compromise settlements. Because of their laboring conditions, cultivators will act collectively over economic issues. Owners, however, are economically strong and generally have an increasing pie to divide; moreover, owners are not seriously dependent on political protection by the state, and their workers can legally act collectively over economic issues. Disputes over will thus not be naturally transformed into disputes over political power, and compromise will be the name of the game. (Paige thus argues against Marx here.)

[2.] The small holding system will likewise produce limited challenges to political authority. Cultivators will draw income from the land and sell products in the market. They will thus be risk averse and divided between rich and poor, reducing the prospects for collective action. If collective action over economic issues occurs, it will not involve challenges to political authority nor be long-lived. The commercial class, which owns the factories processing the products from small-holders, does not depend on political protection and is not involved in a zero-sum game. Moreover, the market mediates its relation to small holders, thus minimizing conflict. So small holding systems should result in limited protests over credit, market prices, and the like—what Paige calls a reform commodity movement.

[3.] When both cultivators and non-cultivators get their income from the land, we can expect a more severe conflict. Owners are economically weak, dependent upon the state for protection, and unable to compromise by sharing gains in productivity with cultivators. Cultivators are typically without political rights. This combination of factors means economic disputes cannot easily be settled and will naturally spread to issues about land ownership and property redistribution. However, the cultivators are subject to all the factors that undercut collective action. So cultivator movements should not become revolutionary movements, unless other forces like urban political parties intervene to introduce organization from the outside. So, in Paige’s terminology, ‘revolts’ may occur, but sustained support for thoroughgoing political revolution should be rare.

[4.] Finally, upper-class land income and cultivator income in wages make for the most explosive situation. The upper class is economically pressed, weak, unable to compromise through sharing productivity gains, and dependent on state protection. Cultivators typically are not divided along income lines and have no property to lose in collective action. So economic disputes should be frequent and should quickly become disputes over political authority, since the upper class depends upon political force to maintain itself. Revolutionary movements should thus be most frequent when this class system predominates.”

Kincaid’s succinct discussion of Paige’s evidence, in other words, its “previous research, mostly case studies…; a world study looking primarily for correlations between economic systems and political behavior; case studies of Peru, Angola and Vietnam;” his hypotheses and their ceteris paribus qualification; and the ability to explain away “the most obvious exceptions to his hypothesis” [e.g., Malayan agricultural wage earners who worked on rubber estates and became involved in revolutionary movements], concludes that this compelling (informal) theory of agrarian movements displays the traits of good science: “It exhibits the evidential virtues summarized by independent, fair, and cross tests. Though its laws are qualified ceteris paribus, it confirms those claims by applying testing methods common in the natural sciences. Paige’s theory also seems to have explanatory virtues: it explains by providing relevant causal generalizations. Those causal generalizations, of course, describe tendencies or partial causal factors. Yet Paige’s testing procedures provide good evidence that those tendencies are actually operative.”

* Kincaid misspells Paige’s first name—as Jeffrey—in both the body of the text and in the bibliography.

Further Reading:
• Miller, Richard W. Fact and Method: Explanation, Confirmation and Reality in the Natural and the Social Sciences. Princeton, NJ: Princeton University Press, 1987.
• Paige, Jeffery M. Coffee and Power: Revolution and the Rise of Democracy in Central America. Cambridge, MA: Harvard University Press, 1997.

Cross-posted at the Agricultural Law blog.

Red and Green: Marxism & Ecological and Environmental Worldviews

At the beginning of the year I posted a “reading guide” on Red-Green (or ‘Eco-’) Socialism. This is an expanded version of that list with more links (still, it is far from exhaustive). It represents what I’m acquainted with by way of the attempt to integrate Marxism (and the Left in general) with ecological and environmental worldviews (I make some further, more specific recommendations in the note appended below):

• Bahro, Rudolf. Socialism and Survival. London: Heretic Books, 1982.
• Bahro, Rudolf. From Red to Green: Interviews with New Left Review. London: Verso, 1984.
• Benton, Ted. Natural Relations: Ecology, Animal Rights and Social Justice. London: Verso, 1993.
• Bernstein, Henry. Class Dynamics of Agrarian Change. West Hartford, CT: Kumarian Press, 2010.
• Bernstein, Henry, et al., eds. The Food Question: Profits Versus People. New York: Monthly Review Press, 1990.
  
• Burkett, Paul. Marxism and Ecological Economics: Toward a Red and Green Political Economy. Chicago, IL: Haymarket Books, 2009.
• Burkett, Paul. Marx and Nature: A Red and Green Perspective. Chicago, IL: Haymarket Books, 2014.
• Carter, Alan. A Radical Green Political Theory. London: Routledge, 1999.
• Foster, John Bellamy. Marx’s Ecology: Materialism and Nature. New York: Monthly Review Press, 2000.
• Foster, John Bellamy. Ecology against Capitalism. New York: Monthly Review Press, 2002.
• Foster, John Bellamy. The Ecological Revolution. New York: Monthly Review Press, 2009.
• Foster, John Bellamy. “Marxism and Ecology: Common Fonts of a Great Transition,” Monthly Review, December 2015 (Vol. 67, No. 7).
• Foster, John Bellamy, Brett Clark, and Richard York. The Ecological Rift: Capitalism’s War on the Earth. New York: Monthly Review Press, 2010.
• Gorz, André. Ecology as Politics. Boston, MA: South End Press, 1980.
• Gorz, André. Capitalism, Socialism, Ecology. London: Verso, 1994.
• Kovel, Joel. The Enemy of Nature: The End of Capitalism or the End of the World? London: Zed Books, 2nd ed., 2007.
• Magdoff, Fred. “A Rational Agriculture is Incompatible with Capitalism,” Monthly Review, March 15, 2015 (Vol. 66, No. 10).
• Magdoff, Fred, John Bellamy Foster, and Frederick H. Buttel, eds. Hungry for Profit: The Agribusiness Threat to Farmers, Food, and the Environment. New York: Monthly Review Press, 2000.
• Magdoff, Fred and Brian Tokar, eds. Agriculture and Food in Crisis: Conflict, Resistance, and Renewal. New York: Monthly Review Press, 2010.
• O’Connor, James. Natural Causes: Essays in Ecological Marxism. New York: Guilford, 1998.
• Patel, Raj. Stuffed and Starved: The Hidden Battle for the World Food System. Brooklyn, NY:
  Melville House Publishing, 2007.
• Pepper, David. Eco-Socialism: From Deep Ecology to Social Justice. London: Routledge, 1993.
• Postone, Moishe. Time, Labor, and Social Domination: A Reinterpretation of Marx’s Critical
  Theory. Cambridge, UK: Cambridge University Press, 1993.
• Ryle, Martin. Ecology and Socialism. London: Radius/Century Hutchinson, 1988.
• Smith, Neil. Uneven Development: Nature, Capital, and the Production of Space. Athens, GA: University of Georgia Press, 3rd ed., 2008.
• Williams, Chris. Ecology and Socialism: Solutions to Capitalist Ecological Crisis. Chicago, IL: Haymarket Books, 2010.

See too the many works of the Marxist geographer, David Harvey, especially the earlier stuff. I think it’s also interesting to examine “conflicts on the ground” as it were between the Left and Green movement parties to the extent the latter finds little or nothing of value in the Marxist tradition (e.g., the early conflicts between the ‘Realos’ and ‘Fundis’ in West Germany and the ‘deep ecologists’ and largely Bookchin-led and inspired ‘social ecologists’ in the US). On the Left, André Gorz (1923 – 2007), pen name of Gérard Horst (born Gerhart Hirsch, also known by his pen name Michel Bosquet) was a New Left theorist who early on developed an “ecological politics.” By way of prioritizing (especially with regard to readings of Marx) and without intending to slight the other titles, I suggest beginning with these authors: Burkett, Foster, O’Connor, Postone, and Smith. Rudolf Bahro famously moved from Red to Green, eventually developing something like a “deep ecology” spiritual environmentalism that largely left Marx behind (at least rhetorically and strategically). Should you want to venture beyond the literature above for any reason, see the bibliographies on Marxism, “environmental and ecological politics, philosophies, and worldviews,” and “the sullied science & political economy of hyper-industrialized agriculture (or, ‘toward agroecology and food justice’),” found at my Academia page.

Reason in Action

Another book I recently read in conjunction with the bibliography on “philosophy, psychology and methodology for the social sciences” was the late Martin Hollis’s Reason in Action: Essays in the philosophy of social science (Cambridge University Press, 1996). While the directed reading regimen was intentional, it turned out to be serendipitous:

California is of course in a severe drought (to be sure, more rain than usual is expected this year, but I’ll believe it when I can’t ride my bike to school), and our household and condo. association have taken action in conjunction with the city’s quite reasonable requirements and recommendations on this score. And then I pick up Hollis’s book, the first chapter of which is a prologue and apologia, while the second chapter is titled “Three men in a drought” and opens as follows: “Water was short in the torrid summer of 1976 and there were soon calls for restraint. Where I live, the Anglian Water Authority quickly threatened to ban garden hoses if the calls went unheeded.” The first person narrative is used, along with a “realist” hypothetical or thought experiment to introduce and illustrate questions regarding collective goods and the nature of rational action, and those, in turn, in the light of important topics in epistemology and ethics. Much of it calls to mind the myriad and passionate—albeit far less rational—arguments I’ve read and heard during our drought, the principal arguments now sifted by the efforts of a creative, sensitive, and keen philosopher.

One more wonderful—and this time moving—piece from this collection is prefaced by a quote from Rainer Maria Rilke, part of which is the chapter title: “A death of one’s own.”* The words are those of Rilke’s character Malte from his only prose work, The Notes of Malte Laurids Brigge (1910): “The wish to have a death of one’s own is growing ever rarer. Only a while yet and it will be just as rare to have a death of one’s own as it is already to have a life of one’s own.”

In the course of this essay, Hollis treats with analytical acuity and intellectual charity if not generosity principles and values found in Liberalism, several ethical traditions (e.g., duty-based and consequentialist), as well as approaches common to bioethics. As Hollis well demonstrates, “Where policy meets patient, the doctor has moral choices to make which no code of medical ethics can reduce to routine.” While medical ethics is often be characterized by a “top down” approach, for example when it broadly aims to “maximize welfare subject to constraints of justice” (a goal he neither dismisses nor derides), Hollis suggests we complement such an orientation with a “bottom up” approach that focuses finely on—and thus can be empathetically sensitive to—the peculiarities of the patient as an individual person: her needs, wishes, beliefs, values, worldview. This invariably becomes a node of friction insofar as it is where “the system meets the patient.” I can vouch for that, albeit second hand, as my dear wife often brings home stories from the hospital that pivot around such points of friction (the parties in question remaining anonymous). The stories are sad, tragic, amusing, unsettling, disconcerting, and even frightening in an uncomfortably intimate way (perhaps because I am close in age to many of the patients who are the protagonists of these stories).

Hollis describes the doctor-patient relationship as “more than a bricolage of morally untidy choices but less than a systematic application of moral philosophy” (the latter route often preferred in bioethics). In his hypothetical sketch, based on all-too-real-life cases, the doctor, Henry, is overseeing George’s treatment and possible discharge from the hospital. The former’s decisions and judgments invariably involve others in subsidiary sundry ways, largely other professionals or bureaucrats (in a non-pejorative sense) of one kind or another. George of course is only one of the patients Henry is temporarily responsible for, while Henry is George’s only doctor and thus the person who decides to what degree George’s own wishes and desires will be granted a degree of deference, in other words, how much say, such as it is, George will have over the remainder of his life.

We’ll let Hollis fill out this hypothetical a bit more with regard to who George is, at least as it pertains to his stay at the hospital or who he has come to be (hence we can only make the slightest gesture in the direction of who George is as a person, with a biographical narrative, a life story, nearing its end):

“George is an old man, a widower, in hospital after a stroke. Although fairly well recovered, he still is fragile and has poor balance. But he is clear-headed, especially about his wish to go home. He says firmly that he could manage on his own; and so he probably could, if he had enough support. Otherwise there is a real danger of his falling, fracturing a leg and being unable to summon help. There is risk of hypothermia. He may easily become dirty, unkempt, emaciated and dehydrated, since it is not plain that he can dress, toilet and feed himself for long. He may not manage to comply with his medication. He might perhaps become a risk to others by leaving his fire unattended or causing a gas leak. None of this would be worrying, if there was a supporting cast. But his house is not suited to his condition. His only relative is a daughter, living elsewhere, with her own job and family and not willing to take George on [such a scenario is more common than we like to imagine]. His neighbors are unfriendly. Social services can offer something—perhaps home help, meals on wheels, a laundry service, day care, an alarm service. But this does not truly cover nights and weekends and, anyway, George is liable not to eat the meals and not to accept the day care. Meanwhile the advice from Social Services is that he should stay in hospital. It is good advice for the further reason that there will be no second chance. Often one can allow a patient a try at looking after himself, known that he can be scooped up and returned to hospital, if necessary. But George is too fragile and too alone for this to be a promising option. Yet he is in no doubt that he wants to go home and denies that he needs any of the missing support.”

Questions of self-determination (or ‘autonomy’ in the literature) and professional responsibility can be addressed, as Hollis suggests, in the context of George’s point of view, from the “bottom up,” which at some point confront questions of medical ethics posed from the “top down.” I will not attempt to catalogue or even summarize all of the lessons learned (or those one might learn) and the insights gleaned from this exquisite philosophical examination of topics within the scope of both bioethics and medical humanities, an examination at once incisive, humane, sophisticated but accessible, an artful combination of wisdom and compassion. Hollis endeavors to show “that patient centredness is not a clear guide to action and then that, even when it is, it may not be a good guide.” And he asks all the right questions, including some unexpected ones: “How much responsibility does Henry shoulder if he colludes with George’s wishes? The question is incomplete: how much responsibility to whom?” Hollis reminds us that “Henry is answerable for more people than George and to more people than George.” In brief, “Henry’s best efforts for George have a price paid elsewhere. ‘Patient-centred’ starts with George but cannot mean simply ‘George-centred’ and gives no guidance on where to stop.” An “intricate set of questions” that address Henry’s ethical and professional duties make vivid the fact that questions surrounding the possible scenarios that will likely determine the nature and cause of George’s death (at home or in the hospital) are not sufficiently faced if viewed solely and simply in the terms of the proper exercise of personal sovereignty or wholesale deference to George’s capacity for psychological and moral (or ‘rational’) “autonomy.”

In the end, Henry must decide, as a doctor and a person (his integrity hinging on the extent to which these indissolubly fuse together), whether or not George goes home, a decision that “varies with George’s insight” (which may not be constant) into his condition, situation, prospects—his life. In due course, Hollis explains why this insight cannot, or at any rate should not, be trumped by decisions and proclamations made by George’s earlier…and healthier “self.” Hollis concludes as follows:

“I imagine that most doctors will think it best to let George go, and will find this responsibility easier to shoulder. Indeed, I think they must, as more people live longer into a fragile and confused old age. But responsibility is not here lessened on the ground that letting die is not killing. Having learnt to postpone death, we have set ourselves problems of when to cut short the losses of an extended life. We have a collective responsibility for what Henry decides but Henry is responsible for his decision. Although he can cover his back by recording a clinical judgment that George’s insight and prospects were adequate, he knows that there is more to the moral question than clinical judgment.

At any rate, George goes home. He remains on his doctor’s conscience as he is carried out a month later to a forgotten grave. But so he would have done also, languishing on in a hospital bed. Without hoping to make it easier to see in the twilight, let me end with a patient-centered prayer, also from Rilke:

O Herr, gib jedem seinen eignen Tod,
    Das Sterben, das aus jedem Leben geht,
    Darin er Liebe hatte, Sinn und Not.

[O Lord, grant everyone a proper end,
    a passing that arises from a life
    that full of love and sense and need was spent.]

Even when a death of one’s own is a poor consumer choice, it is a proper exercise of human dignity.”

* This essay originally appeared in an edited volume by M. Bell and S. Mendus, Philosophy and Medical Welfare (Cambridge University Press, 1988).

Further Reading (for the second Hollis essay discussed above):

• Berg, Jessica W., et al. Informed Consent: Legal Theory and Clinical Practice. Oxford, UK: Oxford University Press, 2nd ed., 2001.
• Brody, Howard. Stories of Sickness. New York: Oxford University Press, 2nd ed., 2003.
• Cassell, Eric J. The Nature of Suffering and the Goals of Medicine. New York: Oxford University Press, 2nd ed., 2004.
• Fulford, K.W.M. Moral Theory and Medical Practice. Cambridge, UK: Cambridge University Press, 1989.
• Gillett, Grant R. Bioethics in the Clinic: Hippocratic Reflections. Baltimore, MD: Johns Hopkins University Press, 2004.
  
• Manson, Neil C. and Onora O’Neill. Rethinking Informed Consent in Bioethics. Cambridge, UK: Cambridge University Press, 2007.
• Montgomery, Kathryn. How Doctors Think: Clinical Judgment and the Practice of Medicine. New York: Oxford University Press, 2006.
• O’Neill, Onora. Autonomy and Trust in Bioethics. Cambridge, UK: Cambridge University Press, 2002.
• Quill, Timothy S. and Franklin G. Miller, eds. Palliative Care and Ethics. New York: Oxford University Press, 2014.
• Randall, Fiona and R.S. Downie. Palliative Care Ethics: A Companion for All Specialties. New York: Oxford University Press, 2nd ed., 1999.
• Schneider, Carl E. The Practice of Autonomy: Patients, Doctors, and Medical Decisions. New York: Oxford University Press, 1998.
• Tauber, Alfred I. Patient Autonomy and the Ethics of Responsibility. Cambridge, MA: MIT Press, 2005.

Heteronomous & Authoritarian Character Traits in a (homegrown) Fascist Political Environment

A Facebook friend asked me this morning, “Do you think the brownshirts may be coming?” Herewith my reply (composed before my first cup of tea):

They’re already here (indeed, they’ve been here for some time), although they’re of uniform mind not costume (apart from white hoods and robes). And now they’re leaving footprints in the muck and mire. They’re willing to render themselves more visible to the rest of us because social and mass media has both deliberately (owing to its uncritical fawning deference to any sort of fame or celebrity) and inadvertently fanned the flames of demagogic fascist leadership, exemplified most egregiously in the presidential campaign of Donald Trump. Their individual and collectively shameless motivational structures having been awakened, xenophobic nationalism and fascism finds sufficient fuel in the ever-increasing number of immature and developmentally distorted character-types. With ample ideological sanction from above, as it were, the unconscious libidinal and aggressive forces are now strong enough to thwart any potential for or tendency toward developmental individuation (i.e., the moral and psychological autonomy that makes for true sociality and humane fellowship or the kind of communities that foster and require the mutual cultivation and creative eudaimonistic expression of myriad and interdependent values): the insider-group trumps the individual (pun intended). The kind of social psychological soil being tilled in the current political climate provides propitious conditions for the emergence of harmful and deadly social-psychological bacteria: illusion and delusion, including individual and collective states of denial and self-deception, as well as passions untethered from moral reason and unconscious forces or drives incapable of sublimation.

At this juncture, an impartial and thus objective observer of our society will diagnose symptoms if not forms of widespread incipient and actual shared mental illness. At the very least, we discover the authoritarian (patriarchal?) character structures and proto-fascist and fascist tendencies among motley individuals and groups, not a few of whom were heretofore ostensibly “conservative” or “moderate,” perhaps even liberal in manifest orientation and outlook. And these tendencies are exhibited among several social classes, not just the so-called lumpenproletariat. Members of these classes respect, admire and envy those assuming or holding various types of power (apparent or actual: in word or deed).

Compassion toward, let alone solidarity or identification with strangers, the out-group, the weak or vulnerable, and so forth is suspect if not dangerous for these individuals, as it is perceived as an immediate threat to their fragile and artificial sense of individual and collective identity. Such identity is shorn of viable notions of human dignity and self-respect, or what it is to be a human person, in other words, we’re left with individuals incapable of incarnating all that is “bright and beautiful” or understanding what is sweetness and light in the Arnoldian sense. These psychologically stunted (in a developmental sense) and morally defective individuals evidence insufficient appreciation of the developmental processes of human nature that make for “perfectibility” in a Godwinian sense, either unable or unwilling to self-actualize or even attain moments of self-transcendence or human fulfillment in the deepest sense (this need not mean, nor in fact should we blame them or hold them fully responsible for this state of affairs). Such individuals are dispositionally or constitutionally afflicted with feelings of worthlessness, self-doubt if not impotence, and anxiety, a noxious brew that gives rise to identification with those who display power and aggression, a will to dominate, hurt and humiliate or control members of out-groups, thereby exhibiting the darkest traits of heteronomous and authoritarian character.

In short, the current political climate makes for what Fromm termed “the pathology of normalcy” (a locution that, conceptually speaking, has long-standing religious and philosophical pedigree), or the consensus, conformity and false consciousness that provide the necessary if not sufficient conditions for fascism.

Further Reading:

• Burston, Daniel. The Legacy of Erich Fromm. Cambridge, MA: Harvard University Press, 1991.
  
• Friedman, Lawrence J. The Lives of Erich Fromm: Love’s Prophet. New York: Columbia University Press, 2013.
• Fromm, Erich. Escape from Freedom. New York: Avon Books, 1965 (1941).
• Fromm, Erich (Barbara Weinberger, tr. and Wolfgang Bonss, ed.) The Working Class in Weimar Germany: A Psychological and Sociological Study. Cambridge, MA: Harvard University Press, 1984.
• Griffin, Roger. The Nature of Fascism. New York: Routledge, 1993.
• Griffin, Roger, ed. Fascism. New York: Oxford University Press, 1995

The Injustice of the California Bar Exam and the Right to Work

One of the great differences between progressives and libertarians is that progressives favor economic regulation and libertarians oppose it. As a constitutional matter, it has long been settled that economic regulation is ordinarily not subject to any serious due process objection. One of the disquieting developments of recent years has been the misuse of the First Amendment to disrupt economic regulations involving speech.

Many years ago, Kenneth Karst, one of the great progressive scholars of his generation, argued that some economic regulations involved important human rights that deserved to be subject to serious scrutiny under the due process clause. He had in mind the right to pursue an occupation, and he objected in particular to unnecessarily burdensome occupational licensing requirements.

To my mind, the California Bar examination is an outstanding example of an excessively burdensome requirement. It is not just that fewer than half of the applicants passed the examination this past summer. The Bar likes to claim that its low passage rate is caused by the number of applicants from unaccredited schools. The fact, however, is that the California bar is graded more strictly than the overwhelming majority of states in the nation. Only Delaware is as strict if not stricter. See here.

I once participated in a debate before the California Board of Bar Governors. I was then the Chair of the Admissions Committee of the UCLA Law School. UCLA then had the largest affirmative action program in the United States. I observed that the examination had a disproportionate impact on people of color. In the summer before the debate in which I participated, 40% of Latinos had passed the bar in California. But, given their scores on the multistate exam (and the essay exams were scaled to match the multistate), if the same group of people had taken the exam in New York or Pennsylvania or the District of Columbia, more than 80% would have passed the exam! I didn’t see why our qualified students should be screened out of California.

This would have been acceptable if California could justify the stringency of its screening device. But it cannot do so. The use of written tests by employers to determine employment at the time (I don’t think this has changed) was impermissible unless the tests met certain validation requirements. The Bar is not governed by these standards, but it is telling that if it were, it could not come close to meeting them. Put simply, there is no evidence that attorneys in Los Angeles or San Francisco are better than those in New York, Philadelphia, or D.C.

My opponent in the debate was the Chairman of the California Board of Bar Examiners. It turned out not to be a debate because to my surprise he agreed with me. This left the ball in the hands of the members of the Board of Bar Governors. I think their sentiment was captured by the public member of the Board – a Mercedes dealer. He said: “Professor Shiffrin, I can see how [bringing the bar exam in line with other states] could lower prices for consumers. But California is a sun state, and I want to assure that lawyers make a decent living.” In other words, the exam is calculated to protect the guild, limit competition, and has the effect of excluding hardworking young people of all races and ethnic backgrounds from practicing law. Law is not just an occupation. It is a license to fight for justice. It is a moral outrage that the Bar uses its monopoly for protectionism. I think Kenneth Karst was right about the right to pursue an occupation. That right is a human right and it should be given greater respect in our Constitution.  

Philosophy, Psychology, & Methodology for the Social Sciences: A Select Bibliography

My latest bibliography, on “Philosophy, Psychology, & Methodology for the Social Sciences,” is here. If you cannot access it, drop me a note and I will send a PDF version through cyberspace.

The capabilities approach to health and social justice: moving from the individual/bio-medical or natural scientific level of causation to supra-individual/social or social scientific causal pathways

In a previous post, I promised we would examine Sridhar Venkatapuram’s “impressive and urgent book,” Health Justice: An Argument from the Capabilities Approach (Polity Press, 2011). I’m not prepared to do that quite yet, but I do want to share with you something from him on the limitations of the “bio-medical” model of health and the corresponding need to change the prevailing epidemiological paradigm in modern medicine, which is “substantively linked to the notion of disease.” The “bio-statistical theory of health” ensconced in this epidemiology “is the informational engine of medical care and public health.” Venkatapuram’s “capability approach” to health and health justice (which entails a ‘conception of health as a meta-capability to achieve a cluster of basic capabilities and functionings’) endeavors to transcend (thus not eliminate) the “dominant biomedical and risk factor model of disease causation and distribution” in its role as the overarching theory that, in turn, governs this epidemiology. In his words,

“…as it currently stands, the dominant explanatory model in epidemiology is significantly constrained even in explaining diseases. It is not able to explain fully the causation and distribution of diseases most prevalent in developed economies, namely chronic and degenerative conditions. The current paradigm is not providing satisfactory explanation for all the observable facts of disease and its social distribution patterns. [….]

Three specific limitations of the prevailing model of disease aetiology are often at the centre of debates about the ‘paradigm crisis’ in epidemiology. These include its level of analysis, its inability to recognize distribution patterns, and its partially informed recommendations for policy. The current model, which evolved from the late-nineteenth-century germ theory of disease, recognizes three categories of causal factors. These factors include biological endowments, behaviours and external exposures to harmful substances or ‘agents.’ The resulting limitation of this model is that it operates only a single level, at the individual level, and expresses a form of explanatory individualism. Short causal pathways confined to the human body are studied, while the model precludes recognizing and supra-individual level factors or social processes as part of the longer causal chain in the production of disease. As a result, the model studies individuals in a vacuum and disconnected from other individuals; it is only focused on what happens on and within the skin of individuals.”

The significance of the “level” of causal analysis, in this case, as “supra-individual level factors or social processes,” was in fact appreciated in some quarters in the early nineteenth century. In doing research for my latest bibliography on “philosophy, psychology and methodology for the social sciences,” I came across the following passage from Richard W. Miller’s unduly neglected or under-appreciated work (inferred from the comparatively few references found in the literature), Fact and Method: Explanation, Confirmation and Reality in the Natural and Social Sciences (Princeton University Press, 1987).

“In the organized pursuit of explanation, practical concerns may…dictate choice of a standard causal pattern. In the early nineteenth century, many investigators had come to explain the prevalence of certain diseases in certain places as due to filth and overcrowding. For example, the prevalence of tuberculosis in urban slums was understood this way. In these explanations, the microbial agent was not, of course, described. But the causal factors mentioned were actual causes of the prevalence of some of those diseases. If Manchester had not been filthy and overcrowded, tuberculosis would not have been prevalent. On the purely scientific dimension, acceptance of accurate environmental explanations probably did not encourage as many causal ascriptions as would a standard requiring explanation of why some victims of filth and overcrowding became tubercular, some not. Those who pressed the latter question were to lead the great advances of the germ theory. But in a practical way, the environmental explanations did a superior job, encouraging more important causal accounts. Guided by those accounts, sanitary measures produced dramatic reductions in tuberculosis and other diseases, more dramatic, in fact, than the germ theory has yielded. A perspicacious investigator might have argued, ‘We know that some specific and varied accompaniment of filth and overcrowding is crucial, since not every child in the Manchester slums is tubercular. But we should accept explanations of the prevalence of disease which appeal to living conditions. For they accurately, if vaguely, describe relevant causal factors, and give us the means to control the prevalence of disease.’” [emphasis added]

Incidentally, Paul Thagard’s fairly sophisticated model of “disease explanation” as “causal network instantiation,” elaborated in his book How Scientists Explain Disease (Princeton University Press, 1999), includes a possible causal role for environmental factors, but the concept and meaning of health as such is not addressed, the implication being that disease (along with illness or, socially speaking, sickness) is simply the converse of health, namely, “ill-health” (understood as an instance of a clinically identifiable biological pathology). As we will see at a later date, Venkatapuram’s capabilities approach to health spells out a normatively robust conception of health and well-being that is more than the mere converse of “ill-health,” however important that life condition remains indicative of a considerably significant social achievement.

 

Jon Elster on “qualitative social science” (which trumps both the ‘soft’ and ‘quantitative’ varieties)

Jon Elster on “qualitative social science”:

“I believe the best training for any social scientist is to read widely and deeply in history, choosing works for the intrinsic quality of the argument rather than the importance or relevance of the subject matter. Here are some models: James Fitzgerald Stephen, A History of the Criminal Law of England; E.P. Thompson, The Making of the English Working Class; G.E.M de Ste Croix, The Class Struggles in the Ancient Greek World; Joseph Levenson, Confucian China and Its Modern Fate; Paul Veyne, Le pain et le cirque; G. Lefebvre, La grande peur; Keith Thomas, Religion and the Decline of Magic…. What these writers and others of their stature have in common is that they combine utter authority in factual matters with an eye both for potential generalizations and for potential counterexamples to generalizations. By virtue of their knowledge they can pick out ‘telling detail’ as well as ‘robust anomaly,’ thus providing both stimulus and reality check for would-be generalists.

The same is true for authors of ‘case studies,’ among which one of the greatest remains Tocqueville’s Democracy in America. Although it does not fit neatly into the category, I would also include Joseph Schumpeter, Capitalism, Socialism, and Democracy. A seemingly eccentric but, I believe, compelling candidate is Arthur Young’s Travels in France, covering the years 1787, 1788, and 1780. These are ‘character portraits’ of whole societies or regimes, all of them with a comparative perspective. Marc Bloch, La société féodale, also belongs here.” [….]

* * *

“…[T]he classics are not obsolete. I would find it hard to take seriously someone who claimed that classical works are not worth taking seriously today because their findings, when accurate, are fully incorporated into current thinking. They have much more than antiquarian interest. I do not claim, though, that a dialogue with past masters is the only or the best way of generating new insights. Thomas Schelling, for instance, does not seem, in any obvious way at least, to have been standing on anyone’s shoulders. Kenneth Arrow may have rediscovered and generalized Condorcet’s insight, but he was not influenced by him. The work of Daniel Kahneman and Amos Tversky was as far as I know not generated by knowledge of any precursors. When I once had the occasion to point out to Tversky that one of his distinctions (between the ‘endowment effect’ and the ‘contrast effect’) had been anticipated by Montaigne and by Hume, he replied only that he was happy to be in such good company. Since the scholars I have just named are responsible for what were arguably the most decisive advances in social science over the last fifty years, one obviously cannot argue that the dialogue with the past is the only road to new insight. [….]

This being said, the dialogue with the past can be immensely fruitful, if only to identify the positions one has to refute. It is hard to imagine that non-Marxists such as Weber or Schumpeter could have written what they did if they had not read Marx closely. Direct or positive influence is also common, of course. It seems likely that some recent theories of the evolution of property systems were directly influenced by David Hume, rather than simply claiming him as a precursor. Paul Veyne’s work on the psychology of tyranny in antiquity owes much to Hegel’s analysis of the master-slave relation. George Ainslie, who has done much to render one of Freud’s basic insights analytically persuasive, might not have arrived at his ideas but for Freud’s earlier, inchoate version. I suspect that Bentham’s Political Tactics is still insufficiently mined. In these cases…the ideas inspired by the classics have to stand on their own once arrived at. The good use of the classics does not include an argument from authority.” — From Elster’s indispensable volume, Explaining Social Behavior: More Nuts and Bolts for the Social Sciences (Cambridge University Press, 2007): 447-48 and 454-55 respectively.

I am preparing a bibliography on “Philosophy, Psychology, & Methodology for the Social Sciences,” and came across the above from my notes and thought to share it.