ReligiousLeftLaw.com

How might we distinguish legal rights for human beings (or persons) from legal rights applicable to the natural world (with ‘legal personhood’ for some nonhuman animals in the liminal ethical space between human beings and the rest of nature)?

“Should trees have lawyers?”

Around the world, campaigners are successfully arguing that mountains, trees and rivers should have legal rights.

By Nicola Cutcher for the New Humanist (26th October 2020)

[….] “In 2017, the government of New Zealand passed legislation which recognised the Maori’s Whanganui river as a legal person. The Maori see all forms of nature as their kin. This is encapsulated in their saying: ‘I am the river and the river is me.’ The new legislation recognises the Maori’s holistic concept of the river as Te Awa Tupua (river of sacred power), defining it as ‘an indivisible and living whole from the mountains to the sea, incorporating the Whanganui river and all of its physical and metaphysical elements.’ Two individuals will serve as the river’s official guardians, one chosen by the Maori and one by the government, and they will speak on behalf of Te Awa Tupua.

The river’s newfound legal status prompts the question of where it begins and ends. For the Maori, it begins in the mists swirling above the mountains and valleys. In David Freid’s beautiful short documentary The River Is Me, there is a remarkable exchange between the director and the government minister who negotiated the treaty, Christopher Finlayson, who says: ‘The fact of the matter is you can’t divide a river up into the bed, the water column, and the air above the river – I think you can get hung up on these western concepts of ownership.’

Freid posits that since the river’s water comes from the rain and the rain falls through farmland and city streets, now that the river is indivisible, perhaps everything that water touches along the way might eventually gain the same personhood. ‘I suppose that’s right,’ Finlayson says, ‘in so far as the water is part of this indivisible entity that will flow in and flow out.’

So then the larger idea, Freid suggests, is that all of nature in some way or another gets spoken for. Finlayson looks unabashed. ‘When you think about it, why not?’ It’s a thought that hangs heavy in the air.

Other victories for the rights of nature have sprung up all over the world. In 2019, Bangladesh became the first country to grant all of its rivers the same status as humans, and decreed that the National River Conservation Commission will speak for the rivers. Ecuador and Bolivia have enshrined the rights of nature in their constitutions. Communities across the US, starting in Pennsylvania, have also put in place rights for nature at a local level by passing local ordinances (akin to British bylaws). David R. Boyd documents many of these moments in his book The Rights of Nature: A Legal Revolution That Could Save the World [ECW Press, 2018].” [....]

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While I understand the motivation and (metaphysical and/or moral and legal) reasons for wanting to grant rights to “natural” objects or ecological processes (or webs) or the natural world, the language of legal rights should, I think, be distinguished from the various kinds of rights we accord human beings as well as (increasingly) those nonhuman animals (including our pets, apes, chimpanzees, dolphins, and perhaps a few other animal families, like corvidae!) we might or should designate as “legal persons,” in other words, those animals we accord aspects, properties, or features of personhood so as to grant them some basic legal rights. We might also consider a corresponding roster of duties and obligations as inextricably tied to such rights. In other words, we need an adjective that rules out confusion and conflation with regard to these myriad legal rights in the human and natural worlds. Although I’m not sure which one is most appropriate, morally, legally, and rhetorically, a handful of concepts come to mind: trustee, beneficiary, conservator, stewardship, or rights of respect or care, or “natural regard” rights. I need to think more about this, but I welcome your suggestions, preferences, comments.

An early argument worth re-visiting along these lines is Paul W. Taylor’s Respect for Nature: A Theory of Environmental Ethics (Princeton University Press, 1986), in particular his chapter, “Do Animals and Plants Have Rights?” Taylor believes an environmental ethics can suffice without invoking a notion of “moral rights.” In his words,

“The concepts of the good of a living thing, of the inherent worth of a living thing, of the attitude for nature, and the traditional idea of moral principles as validly binding upon all moral agents [‘autonomous’ persons], are fully adequate. To add the notion of moral rights to this conceptual structure is not to add anything ethically significant. And since people will naturally tend to think of moral rights according to the paradigm provided by rights of person, confusion is like to be engendered by the use of the language of [moral] rights in the domain of environmental ethics.”

The confusion Taylor refers to here is analogous if not identical to the sort of confusion I believe can occur with the granting of legal rights to all animals, plants, trees, rivers, and so forth. Although that does not prevent me from agreeing with Taylor:

“As long as we consider animals and plants to be entities that have a good of their own which can be furthered or damaged by the actions of human agents, it is logically conceivable for them to have the legal status of bearer-of-rights in a given society. Thus we can speak meaningfully of protecting their good by laws that entitle them to be treated in certain ways. Just as is the case with humans, their life and well-being can be made secure by laws that confer on them certain rights. [….] In such a system the laws give public recognition to animals and plants as having legitimate claims against humans. The fact that those who have the claims cannot assert them, insist on them, or even understand them does not take away their legitimacy.”

Thus while in the human world moral rights have been historically, conceptually, and legally related in one way or another to legal rights, this linkage does not exist in the case of the natural world, therefore it suffices to have a strong (or deeply green or ecologically sound) environmental ethics [one not wedded to any particular metaphysical worldview, even if a few metaphysical presuppositions are, strictly speaking, unavoidable] alongside—with proper adjectival qualification—legal rights for animals, plants, and other parts or processes of the natural world. 

Relevant bibliographies

• North American Indians: History, Culture, Politics, and Law
• Animal Ethics, Rights, and Law
• Ecological and Environmental Politics, Philosophies, and Worldviews
• Human Nature and Personal Identity

Recent posts of related interest

• Indigenous Peoples
• Teaching children about animals: “inconsistency” and “confusion mixed with hypocrisy”
• Possible logical constraints on principles in animal ethics that entail vegetarianism or veganism
• An imminent global environmental apocalypse
• Thomas Nagel’s review of Christine Korsgaard’s argument on the nature of our moral obligations to nonhuman animals
• Toward Red-Green Socialism: Recommended Reading

Stolen Judicial Seats

The Republicans refused to consider more than 100 judicial nominees by President Barack Obama, including 19 Court of Appeals nominees and the nomination of Merrick Garland to the Supreme Court. All of those seats are stolen seats. Thieves should not be rewarded.  Expand the federal courts.

The above is from my cousin Brian Shiffrin

My suggestion would be the addition of two seats for each stolen judge to discourage future thefts.

Donald Trump’s administration embraces “herd immunity”

“Herd immunity,” i.e., a Malthusian Social Darwinist “strategy” (this is not, from a public health perspective, an actual or possible strategy) has become the de facto policy of the Trump administration for dealing with our nation’s share of the COVID-19 pandemic. As I’ve said before, this is criminal behavior of the highest order, a “crime against humanity” as that is defined in international criminal law.* It is the most conspicuous symptomatic evidence to date of the President’s psychopathy and sociopathy.

* For a concise introduction to crimes against humanity in international criminal law and justice, please see the entry in Antonio Cassese, editor-in-chief. The Oxford Companion to International Criminal Justice (Oxford University Press, 2009): 284-288. For foremost philosophical treatment of crimes against humanity, please see Larry May’s Crimes Against Humanity: A Normative Account (Cambridge University Press, 2005).  

Individual & Group Psychosis in a Capitalist Liberal Democracy: a symptomatic diagnosis of what ails us

(Bracketed comments, which I trust you will not find too annoying, are from yours truly.)

While I join those who believe that we need to question Donald Trump’s psychological fitness to be president, my focus is less on individual psychopathology than on the interface between Trump and the American collective psyche. There are ways in which Trump mirrors, even amplifies, our collective attention deficit disorder, our sociopathy, and our narcissism. [….] Trump has mesmerized our national psyche like no other public figure in recent memory. There is no doubt that his appeal (his wealth, power, celebrity status, and his brash willingness to shoot from the hip) resonates powerfully with the collective psyche of many Americans, while these same qualities are repulsive to many others. The more vulgar, bullying, impulsive, and self-congratulatory Trump’s behavior and rhetoric [among the symptoms of malignant narcissism and present hedonism], the more some people worship him, while others fervently denounce him as a grave danger to our republic. [….]

I hypothesize a direct link between Trump’s personal narcissism and the collective psyche of those American citizens who embrace his perception of America and who feel that he understands and speaks to them. This is not a political analysis. It is a psychological analysis of what we can think of as the group psyche, which contributes enormously to and fuels political processes. This analysis is based on the notion that there are certain psychological energies, even structures, at the level of the cultural or group psyche that are activated at times of heightened threats to the core identity of the group…. [….] It seems clear that Trump’s narcissism and his attacks on political correctness dovetail with deep needs in a significant portion of the American population to enhance their dwindling sense of place in American and of America’s place in the world. Trump’s narcissism can be seen as a perfect compensatory mirror for the narcissistic needs and injuries of those who support him—or, stated another way, there is a good ‘fit.’ [….] It is quite possible that Trump’s personal inflation, arrogance, and hubris represent a compensatory antidote in our group psyche that is beginning to suffer severe self-doubt about our inability to navigate a highly uncertain future—the nostalgic longing of which is perfectly articulated in the phrase, ‘I want my country back.’ [….]

Trump is at his best when he is at his most awful: this willingness to be politically incorrect became a sign, to many, of his ‘truth-telling.’ Amidst a most dangerous battle between the ‘alternative facts’ of the alt-right [now the core identity of the GOP] and ‘fake news’ came an outpouring of the paranoia and hostility embedded in the cultural complex of those who loathe ‘the deep state.’ Collective emotion is the only truth that matters. A group caught up in a cultural complex has highly selective memory—if any historical memory at all—and chooses only those historical and contemporary facts that value their preexisting opinion. Evidence of this is that no matter what Trump does or how many lies he tells, his base remains steadfast in its support of him, as the polls tell us [things have grown precipitously worse since this was written, as it is no longer a question of a biased selection of self-serving ‘facts,’ but widespread belief in illusions, delusions, and phantasies, as the increasing numbers of adherents to QAnon conspiracy phantasy (including a twenty-four followers running for Congress, several of whom have a good chance of winning a seat in the House) attest]. This kind of shadow energy [a Jungian idea] is available for exploitation if a group that previously saw itself as having a solid place in America (such as white middle-class Americans in the Rust Belt or coal miners in West Virginia) finds itself marginalized and drifting downward, both socially and economically. How easy it is for such a group to see recent immigrants to this country as stealing the American dream from them.

Donald Trump uncovered a huge sinkhole of dark, raw emotions in the national psyche for all of us to see. Rage, hatred, envy, and fear surfaced in the forgotten, despairing, growing white underclass who had little reason to believe that the future would hold the promise of a brighter, life-affirming purpose. Trump tapped into the negative feelings that many Americans have about all the things we are supposed to be compassionate about—ethnic, racial, gender, and religious differences. What a relief, so many must have thought, to hear a politician speak their unpleasant resentments and express their rage. — From Thomas Singer’s essay, “Trump and the American Collective Psyche,” in Bandy Lee, ed. The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President (Thomas Dunne Books, 2017): 281-297

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The symbiotic psychoses of the leaders and the led in the messianic nationalist cult of Trump and the Republican Party are at once an immanent and imminent threat to our Liberal democracy and its constitutionally-mandated welfare state,* or so I would argue. That argument (which is not made in full here) necessarily contains what we can call “psychoanalytic premises,” and thus I am sharing several passages from the beginning of James M. Glass’s book, Psychosis and Power: Threats to Democracy in the Self and the Group (Cornell University Press, 1995) because they are remarkably prescient and thus apropos of our current political situation and climate, particularly insofar as we are inclined to characterize it as “frightening,” “crazy,” and “nightmarish” (it is that … and more).

In my lifetime at least, I cannot recall a time when it appeared so many people (tens of millions?) were dispositionally or habitually afflicted with debilitating psychological phenomena and mental states: denial, self-deception, wishful thinking, illusions, delusions, and phantasies. Being human, we are all in varying degrees and at different times vulnerable to these phenomena and states, but ours is a time and place in which they’ve become ubiquitous at the level of both individual and group psychology. There is of course historical precedence, hence the familiar locution from Erich Fromm: the “pathology of normalcy.” As Daniel Burston¹ informs us, this phrase, while used in reference to the “pervasive alienation of postwar industrial society,” and “[l]ike the very idea of a sane society,” in fact “derives from a broader anthropological and historical outlook Fromm termed ‘normative humanism.’ Its controversial premise [one shared by Gandhi in Hind Swaraj²] is that society as whole can be sick or ‘insane,’ inasmuch as it fails to address existential needs that are vital to the growth and development of the human individual.” We can, like Fromm himself on occasion (and like Marx before him), view this in reference to the denial or distortion of more basic material and psychological needs as well.

Glass begins by speaking of “psychotic disintegration” and “psychotic selves” before shifting to exclusive reference to the “schizophrenic self,” although I prefer the first diagnostic designation if only because it is broader in scope.

“It may seem odd to draw inferences about the operation of power from the parables and stories of individuals who suffer from psychotic disintegration. [….] I take these stories to be real experiences described by human beings who suffer, who know something about the structure and reality of power as it affects their lives, perceptions, and values. The feel of power, the reality of power for psychotic selves, suggests a firsthand knowledge of tyranny. In this sense, I believe, the raw, primitive, archaic quality of the schizophrenic experience demonstrates how power works.

What the schizophrenic self suffers is a microcosmic representation of the political form of power as tyranny and domination. Power is exercised on the self; it defines the world of knowledge and meaning in rigid terms of absolute good and evil [as in the populist cult of Trump]. This power derives not from social or consensual bases but from narcissism and solipsism [hence the shared and mutually reinforcing pathologies between the leader(s) and the led]. It seeks omnipotence [on the collective plain, the ‘power’ of those powerless is thus vicariously realized in the power of the authoritarian demagogue; the religious analogue found in the notion of ‘vicarious’ or ‘substitutionary’ atonement’]. It [i.e., that which is psychologically regressive and more sub- or un-conscious than not] is destructive, parasitic, and violent. It pushes the self into masochism and physical mutilation.” [….]

“The fragility of secondary process³ restraints perhaps implies that only a thin line separates a so-called democratic or participatory politics from equally powerful and dangerous tendencies within the culture to institute the infantile world of unlimited entitlement in the form of tyrannical power. What is repressed, as Freud discovered a century ago, refuses to disappear; it lingers; it affects action; it transforms life; it reappears.

Regression destroys secondary process structures, pushes the self into a state of boundlessness, releases enormous amounts of aggression and intensifies feelings of anxiety and panic. Living without limits, possessed by a delusional epistemology, the self faces a loss of continuity and being. What emerges in both the self and the group are actions or forms of power that have nothing to do with tolerance, respect for rights [such right are morally and legally limited at that point where they cause harm to others or when they interfere with the exercise of the joint or shared rights of others], or what John Stuart Mill calls liberty [Mill’s conception of liberty does not denote or imply, let alone exemplify, the predominant contemporary ‘libertarian’ picture⁴].

Psychosis threatens democratic forms of conflict resolution by attacking a sense of limitation and those boundaries between groups which, while allowing each to pursue its own cultural ends, nonetheless protects the group’s integrity. What psychosis releases—intense vulnerability, rage, and hatred, Kristeva’s ‘unnameable space of need’—finds itself contained within [Liberal] democratic approaches to conflict resolution and negotiation, particularly acknowledgment of and respect for rights. A liberal democratic polity requires renunciation and sublimation and the willingness to endure restraint in the pursuit of self-interest.⁵[….] The willingness to sustain conflict without resort to tyranny requires, to use Peter Gay’s words, ‘a capacity for tolerating delays, disappointments and ambiguities attendant upon any open society, an unimpaired capacity for reality testing, for curbing one’s aggressiveness without turning against oneself, for reliance on defensive stratagems that remain moderates in scope and flexible in application.’ Democracy that respects rights and liberty is indeed fragile. [….]

[Liberal] [d]emocracy is, in its politics as well as in its epistemology, a defense against more extreme (what I call psychotic) modes of being and power. It acts as a protection against regression, the tendency to embrace unyielding and totalizing ideological positions. And its method of conflict resolution functions much the same way as the mother/container does for her infant’s split-off, raging self. A resilient democratic culture (one embracing participatory modes of action) will hold or contain the rage of its constituent groups without allowing it to annihilate either the constitutional structures maintaining the community or the respect for rights which allows conflict to flourish with endangering individuality. Conflict is the lifeblood of democracy, but it consistently circulates around the respect for the capacity of the other to contain and detoxify disruptive aspect of the self or group emotion. Democratic institutions, from this perspective, do not eliminate conflict; rather, they detoxify anarchic or annihilating presence and consequence. Power becomes supportive and creative or, to use Erik Erikson’s concept, ‘generative;’ it fosters growth. Conflict is talked about and legislated rather than imposed and forced. Rage is held by institutional and cultural processes that work to bind the entropic tendency present in all expressions of political interest. [….]

A democratic theory of rights and participation protects against the fragility of human defenses against regression (the psychotic substratum to all human experience, Kristeva’s ‘hole’ that threatens to engulf the ‘subject’), the unbinding of the self, the refuge in solipsism, a kind of political variant on what Otto Kernberg calls ‘pathological narcissism.’ Democracy respects conflict, works to contain its entropy; the dynamic is dialectical, and the relationship between container and contained is reciprocal. Hobbes and Machiavelli fear conflict and its effects and desire to suppress or enchain its consequences; the push is to close off communication, to repress, hold down, crush.

Democracy as a political theory protects the values of liberty and autonomy, which at the level of individual psychology are parallel to the acceptance of boundary, proportion, limitation. Democracy opposes the affect or symptom of nonreciprocal power: unrestrained narcissism, unlimited entitlement, perceptions of omnipotence, delusions or images of grandeur and dominance. As Peter Gay puts it: ‘Cultures … regress just as individuals do …. Jingoism is a triumph of the primary process.’ It is one political equivalent of narcissistic rage.”

These introductory remarks fit rather well within the tradition of psychoanalytic psychology, especially insofar as that was—and occasionally still is—integrated (at times uneasily or inconsistently yet no less coherently) within Leftist worldviews (communist, socialist, and social democratic) from the earliest history of Freudian and later Kleinian psychoanalysis. (This reminds me of why I’ve found much of the political science literature unavailing.)

Erich Fromm, Arno Gruen, Wilfred Bion, Nancy Chodorow, C. Fred Alford, Michael Rustin, Eugene Victor Wolfenstein, Julia Kristeva, and Jessica Benjamin come quickest to mind as well-representing this, or something very close to this kind of psychoanalytically grounded exploration of “the political.” I am not a fan of (meaning, I have reasons not to endorse) “Lacanian” approaches to this subject, which are quite fashionable in some quarters of the academic world, including among those of Marxist suasion. I won’t here attempt a full-bodied explanation of why, but of course I might be mistaken and others remain perfectly free to work on or experiment with the relevance of Lacanian ideas to understanding many-things-political, even if I think one’s discretionary attention is best directed elsewhere.  

* On this, see Sotirios A. Barber, Welfare and the Constitution (Princeton University Press, 2003). On the regnant types of welfare states in North America and Europe, see Robert E. Goodin, et al., The Real Worlds of Welfare Capitalism (Cambridge University Press, 1999).

Notes (by me, not Glass)

1. Daniel Burston, The Legacy of Erich Fromm (Harvard University Press, 1991): 133.
2. As Raghavan Iyer explains, Gandhi held “that a man laboring under the delusions engendered by modern civilization I like a dreamer who revels in the seeming reality of his dream. Man today is an emasculated—a favorite word of Gandhi—victim of a vast humbug that is kept alive by schools, legislatures, armies, churches, prisons, and hospitals [not much later Ivan Illich would echo much of this selfsame sentiment]. Our civilization has the seductive color of a consumptive who clings to life but is doomed to die. The analogy is reminiscent of Fourier’s comparison of civilization to a sick person yearning to be healed by some miracle and seizing feverishly upon every fresh panacea, or of Tawney’s image of a hypochondriac who is so absorbed in the process of his own digestion that he goes to his grave before he has begun to live. In our own time, Eric Fromm has argued that just as there is a folie à deux, so there is a folie à millions; ‘the fact that millions of people share the same forms of mental pathology does not make these people sane.’” From Iyer’s The Moral and Political Thought of Mahatma Gandhi (Santa Barbara, CA: Concord Grove Press, 2nd ed., 1983/Oxford University Press, 1973): 25-26. For a concise and incisive summary of Gandhi’s critique of modern civilization, see Bhikhu Parekh’s Gandhi’s Political Philosophy: A Critical Examination (University of Notre Dame Press, 1989): 21-35.
3. This refers to one of the two modes of functioning of the psychical apparatus specified by Freud: (a) “from the topographical point of view, primary process is characteristic of the unconscious system, while the secondary process typifies the pre-conscious and conscious system; (b) from the economico-dynamic point of view: in the case of the primary process, psychical energy flows freely, passing unhindered, by means of the mechanisms of condensation and displacement, from one idea to another and tending to completely recathect the ideas attached to those satisfying experiences which are at the root of unconscious desires (primitive hallucination [and phantasy]); in the case of the secondary process, the energy is bound at first and then it flows in a controlled manner: ideas are cathected in a more stable fashion while satisfaction is postponed, so allowing for mental experiments which test out the various possible paths leading to satisfaction. The opposition between the primary and the secondary process responds to the between the pleasure principle and the reality principle.” This later explication may be a bit clearer for those not well-acquainted with the Freudian corpus: “In Freud’s view … the primary process is the earliest, most primitive form of mentation; it seeks immediate and complete discharge by recathecting the iconic memory trace of the need-satisfying object in accordance with the pleasure principle (this is called hallucinatory wish fulfillment). The freely mobile cathexis in the Unconscious allows one idea within the wish-related associative network to symbolize another idea (a process known as displacement); one idea can also symbolically express several others (condensation); thus unacceptable ideas can evade the censorship of the Preconscious-Conscious system. On a more descriptive level, the concept of the primary process embraces such characteristics of unconscious mentation as the disregard of logical connection, the coexistence of logical contradictions, the absence of a temporal dimension and of negatives, and the use of indirect representation and concretization (imagery). From a developmental perspective, the primary process is gradually (albeit never completely) inhibited in the normal waking state by the secondary process. The latter operates with bound cathexis and verbal, denotative symbols. Governed by the reality principle, it accounts for reality-attuned, logical thought, exemplified by delayed, modulated drive gratification through problem-solving (the internal activity of trial and error). In contemporary psychoanalytic theory, the primary and secondary process modes of thought lie on a continuum, all thought products (dreams, symptoms, slips, fantasies, daydreams, directed problem-solving) show varying degrees of organizational structure and admixtures of primitive, regressive, defensive, and mature mechanisms.” In brief, largely rational thought and conscious action exemplify secondary process mentation. Our two sources, respectively: Jean Laplanche and Jean-Betrand Pontalis (Donald Nicholson-Smith, trans.), The Language of Psychoanalysis (London: Karnac Books, 1988; first published in French in 1967, with the first English translation by Hogarth Press, 1973); and Burness E. Moore and Bernard D. Fine, eds., Psychoanalytic Terms and Concepts (New Haven, CT: Yale University Press and The American Psychoanalytic Association, 1990).
4. Please see Nadia Urbinati’s Mill on Democracy: From the Athenian Polis to Representative Government (University of Chicago Press, 2002).
5. On this notion of self-interest (which is not synonymous with selfishness or crude egoism) as it developed in the Liberal tradition of political philosophy, please see Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy (University of Chicago Press, 1995).

Further Reading

• Alford, C. Fred. What Evil Means to Us (Cornell University Press, 1997).
• Anderson, Benedict. Imagined Communities: Reflection on the Origin and Spread of Nationalism (Verso, revised ed., 1991).
• Auestad, Lene, ed. Nationalism and the Body Politic: Psychoanalysis and the Rise of Ethnocentrism and Xenophobia (Karnac Books, 2014).
• Breuilly, John. Nationalism and the State (University of Chicago Press, 2nd ed., 1994).
• Coady, C.A.J. Morality and Political Violence (Cambridge University Press, 2008).
• Cohn, Norman. The Pursuit of the Millennium: Revolutionary Millenarians and Mystical Anarchists of the Middle Ages (Oxford University Press, revised and expanded ed., 1970).
• Cohn, Norman. Cosmos, Chaos and the World to Come: The Ancient Roots of Apocalyptic Faith (Yale University Press, 1993).
• Collins, Adela Yarbro. “The Book of Revelation,” in John J. Collins, ed. The Encyclopedia of Apocalypticism, Vol. 1: The Origins of Apocalypticism in Judaism and Christianity (Continuum, 2000): 384-414.
• Gruen, Arno. The Insanity of Normality—Realism as Sickness: Toward an Understanding of Human Destructiveness (Grove Press, 1992).
• Hedges, Chris. Empire of Illusion: The End of Literacy and the Triumph of Spectacle (Nation Books, 2009).
• Hobsbawm, E.J. Nations and Nationalism since 1780: Programme, Myth, Reality (Cambridge University Press, 1990).
• Keane, John. Violence and Democracy (Cambridge University Press, 2004).
• Lee, Bandy, ed. The Dangerous Case of Donald Trump (Thomas Dunne Books/St. Martin’s Press, 2017).
• Mann, Michael. The Dark Side of Democracy: Explaining Ethnic Cleansing (Cambridge University Press, 2005).
• McGinn, Bernard, ed. The Encyclopedia of Apocalypticism: Vol. 2: Apocalypticism in Western History and Culture (Continuum, 2000).
• Rustin, Michael. The Good Society and the Inner World: Psychoanalysis, Politics and Culture (Verso, 1991).
• Storr, Anthony. Human Destructiveness (Grove Weidenfeld, 1991).
• Tismaneanu, Vladimir. Fantasies of Salvation: Democracy, Nationalism and Myth in Post-Communist Europe (Princeton University Press, 1998).
• Urbinati, Nadia. Democracy Disfigured: Opinion, Truth, and the People (Harvard University Press, 2014).
• Vetlesen, Arne Johan. Evil and Human Agency: Understanding Collective Evildoing (Cambridge University Press, 2005).

Relevant Bibliographies

• Beyond Inequality: Toward Welfare, Well-Being and Human Flourishing
• Beyond Punitive Liberal Capitalist Society
• Democratic Theory
• The Deformation and Perversion of Education in a Capitalist Democracy
• The Emotions
• Human Nature and Personal Identity
• Toward an Understanding of Liberalism
• Marxism
• Marxism and Freudian Psychology
• Psychoanalytic Psychology and Therapy
• Toward a Realist Social and Political Psychology
• Utopian Imagination, Thought and Praxis

Fasting and Hunger Strikes: preliminary comments in light of the Palestinian struggle for collective self-determination

This post is in honor of the Palestinian political prisoner, Maher al-Akhras, who has been on a hunger strike for 86 days.

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“Administrative detention has constituted a core of Israel’s 1,500 occupation laws that apply to Palestinians only, and which are not subject to any type of civilian or public review. Derived from British Mandate laws, administrative detention permits Israeli Forces to arrest Palestinians for up to six months without charge or trial, and without any show of incriminating evidence. Such detention orders can be renewed indefinitely, each time for another six-month term.”—Richard Falk

“Palestinian civil society is now mainly opting for explicit acts of collective nonviolent resistance to register their dissatisfactions with the failures of the United Nations—or inter-governmental diplomacy in general—to produce a sustainable peace that reflects Palestinian rights under international law. The main expression of this embrace of nonviolence is the adoption of tactics used so successfully by the anti-apartheid campaign to change the political climate in racist South Africa, yielding a nonviolent path to multiracial constitutional democracy. At the present time the growing BDS movement is working to achieve similar results.

Let us recall that successful global nonviolent movements are not restricted to fasts and marches, but include the boycott, non-cooperation, and civil disobedience tactics deployed by Palestinians today. [….] In solidarity with the hunger strikers, civic allies should address the institutional edifice upholding administrative detention. It extends from a discriminatory core and therefore its requisite treatment includes ensuring the enjoyment of internationally guaranteed rights; rights enshrined by the BDS call to action and reified by the movement’s steady and deliberate progression.”—Richard Falk, writing about a hunger strike in 2012 by Palestinian political prisoners

Perhaps it goes without saying, but I’ll say it: no nation-state or group of such states has legal and political—let alone moral—authority, to ask or demand (as part of one or more of the conditions for negotiations, or ending a belligerent occupation, aggression or repressive forms policing or ‘security’) political groups or organizations struggling to realize their international legal right to collective self-determination to renounce all use of violence to achieve their ends—all the more so if the denial of self-determination is, as is often the case, part and parcel of collaboration with outside and more powerful parties systematically failing to enforce or recognize human rights violations, be they civil, political, social, cultural or economic. Adding insult to injury, we note those states in the post-colonial or imperial habit of “demanding” such relinquishment have themselves more often than not achieved their collective self-determination through violent means (war, rebellion, revolution, terrorism, what have you), while now resorting to means of violence when conventional and nonviolent political methods (diplomacy, negotiation, sanctions, etc.) fail, ruthlessly exploiting a gross asymmetry in various forms of power while employing violence to assert their political will on others (for whatever reason: ideological domination, regime change, resource exploitation, a more congenial economic environment…).

Conceding this does not amount to an implicit or roundabout moral justification or warrant for the particular means of violence such groups or organizations may choose in their struggle (although it’s not difficult to understand why those who are frequently subject to state terror often defend themselves with terrorist means readily available to them). Indeed, I think humanitarian-inspired constraints of just war theory (especially jus in bello) should apply to groups like the Palestinians in their struggle for collective self-determination (this applies as well to those seeking to secede from existing states which, with Allen Buchanan, I believe should viewed as a remedial right, thus a ‘last resort response to serious injustices’).

Speaking of the Palestinians, it’s useful to remind ourselves that, under international law, and in the words of Richard Falk, “Palestinian resistance to occupation is a legally protected right,” one that arises in the first instance from two documents: the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples and the Fourth Geneva Convention and its subsequent protocols. As argued in a couple of articles Falk co-authored with Burns Weston,

“Israel’s failures as a belligerent occupant to abide by international law amount[s] to a fundamental denial of the Palestinian right of self-determination, and more generally of respect for the framework of belligerent occupation—therefore giving rise to a Palestinian right of resistance.”

In short, Palestinians have an inalienable moral and legal right to resist an illegal and violent military occupation.

For its part, Israel has reacted to all manner of Palestinian resistance, be it violent or non-violent, with routine reliance on “excessive and disproportionate use of lethal force, including the apparent targeting of civilians and children [including the demolition of housing, torture and various forms of indiscriminate ‘collective punishment’].” Both the creation of “facts on the ground” (e.g., ever-expanding settlements) “and the use of such force … constitute repeated and fundamental violations of the Fourth Geneva Convention, violations that amount to war crimes and crimes against humanity.”

Prisoners (political or not) engaged in “extra- or para-legal” nonviolent protest have a short menu of means from which to select from, and the hunger strike is one of the more prominent and time-honored such means.

A hunger strike is similar to “fasting,” as one is deliberately refusing to eat (and to some extent, drink) but of course they need to be distinguished, as the latter is typically motivated by medical, health, or religious/spiritual reasons, while the former is more frequently undertaken in a socio-economic and political context of rebellion or resistance of some sort; the hunger strike being of one of the more—if not the most—dramatic and dangerous tactics in the arsenal of nonviolent struggle. Nonetheless, the conceptual and activist lines drawn between a hunger strike and fasting are sometimes blurred if not effaced. In India, a hunger strike (dhurna), has long been a weapon of “passive resistance” (the adjective here is unfortunate), employed by entire communities to shame a ruler into granting their just demands, for example, or by creditors sitting “at the door of debtors who ignored legitimate claims on them.” In more intimate spheres like the family, a fast has frequently been used as “a means of arousing the conscience of a loved one,” a practice that begins to blur the boundaries between a hunger strike and a fast. Moreover, a “fast” can take on deliberate political dimensions, as was the case with Mahatma Gandhi (who set quite stringent standards for employing this ‘fiery weapon’ of last resort from the armory of satyāgraha) and later, with César Chávez, who co-founded (with Dolores Huerta) the National Farm Workers Association, better known later as the United Farm Workers (UFW). While Chávez, like Dorothy Day, fasted under a justificatory religious rubric of “spiritual personal transformation” and thus for Catholic penitential reasons, there was often an ineluctable political aspect involving nonviolent protest and “preparation” for civil disobedience campaigns. Consider this example from Day: “A week from now I shall begin the ten-day fast for peace, initiated by Chanterelle del Vasto, in which a score of women from all over the world will take part. Certainly prayer and fasting are needed today, our own work to overcome the spirit of violence in the world.”

Fasting was likewise employed by the revolutionary and reformist democratic opposition in Poland from 1976-1981. Members of KOR, the Workers’ Defense Committee (later: Komitet Samoobrony Społecznej KOR/Social Self-Defense Committee, KSS-‘KOR’) engaged in several fasts believed to reflect a “Christian ethos” even among majority of its non-religious member: hence, for example, the title of Jacek Kurón’s essay (published in Znak under the pen name Elzbieta Borucka), “A Christian without God.” In this case, such an ethos meant refusing to make a distinction between “private” and “public” ethics, a refusal perversely reinforced within an authoritarian society wherein ostensibly private or intimate behavior often has, for better and worse, political reverberations. Recall that it was KOR that played a direct “service” role in the emergence of Solidarity (Solidarność, the first non-Communist party-controlled trade union in the Warsaw Pact countries) in 1980. Fasts in which KOR and other opposition members participated occurred in the first instance at Catholic churches (which provided some measure of political ‘protection’), although sympathizers unable for one reason or another to frequent the churches also fasted in support of these collective nonviolent protests. Fasts were undertaken on behalf of the release of imprisoned workers and in solidarity with Czech activists fasting in defense of political prisoners. The “spillover” or “by-product” effects of such fasts are intriguing, as in the exemplary case of one such fast cited for its capacity to

“create an atmosphere of seriousness and deep concentration, which was achieved not at the price of isolation, but in relation to others, to the human ties and feelings among friends. In addition, the fast united both believers and non-believers around common values and the goals ensuing from them, and therefore it became a great event of what might be called ethical ecumenical significance.” Please see Jan Jósef Lipski (Olga Amsterdamska and Gene M. Moore, trans.), KOR: Workers’ Defense Committee in Poland, 1976-1981 (University of California Press, 1985).

One might correctly infer from my full name that I’m Irish (in part!). Thus, although it may be true (for better and worse) that “[h]unger strikes have deep roots in Irish society and in the Irish psyche,” my Irish brothers and sisters may be puzzled by the failure to discuss the well-known 1981 Irish hunger strike by Irish republican prisoners in Norther Ireland (the culmination of a five-year protest during ‘The Troubles’). But the fact that it is fairly well-known (and for reasons left unsaid) will have to suffice as reason enough for the omission. However, should these and/or other hunger strikes interest you, I have some reading suggestions that follow the bibliography immediately below.

Recommended Reading

• Awad, Mubarak. Nonviolent Resistance in the Middle East. Philadelphia, PA: New Society Publishers, 1985.
• Awad, Mubarak E. and R. Scott Kennedy. Nonviolent Struggle in the Middle East. Philadelphia, PA: New Society Publ., 1985.
• Barghouti, Omar. BDS: Boycott, Divestment, Sanctions—The Global Struggle for Palestinian Rights. Chicago, IL: Haymarket Books, 2011.
• Ben-Eliezer, Uri (Shaul Vardi, trans.) War over Peace: One Hundred Years of Israel’s Militaristic Nationalism. Oakland, CA: University of California Press, 2019.
• Cypel, Sylvain. Walled: Israeli Society at an Impasse. New York: Other Press, 2006.
• Dunsky, Marda. Pens and Swords: How the Mainstream American Media Report the Israeli-Palestinian Conflict. New York: Columbia University Press, 2008.
• Gordon, Neve. Israel’s Occupation. Berkeley, CA: University of California Press, 2008.
• Hajjar, Lisa. Courting Conflict: The Israeli Military Court System in the West Bank and Gaza. London: University of California Press, 2005.
• Hiltermann, Joost R. Behind the Intifada: Labor and Women’s Movements in the Occupied Territories. Princeton, NJ: Princeton University Press, 1991.
• Kattan, Victor, ed. The Palestine Question in International Law. London: British Institute of International and Comparative Law, 2008.
• Kaufman-Lacusta, Maxine, ed. Refusing to be Enemies: Palestinian and Israeli Nonviolent Resistance to the Israeli Occupation. Reading, UK: Ithaca Press/Garnet, 2010.
• King, Mary Elizabeth. A Quiet Revolution: The First Palestinian Intifada and Nonviolent Resistance. New York: Nation Books, 2007.
• Kretzmer, David. The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories. Albany, NY: State University of New York Press, 2002.
• Makdisi, Saree. Palestine Inside Out: An Everyday Occupation. New York: W.W. Norton and Co., 2008.
• Maoz, Zeev. Defending the Holy Land: A Critical Analysis of Israel’s Security and Foreign Policy. Ann Arbor, MI: University of Michigan Press, 2009.
• Pappe, Ilan. The Ethnic Cleansing of Palestine. London: Oneworld Publications, 2006.
• Pappe, Ilan. The Biggest Prison on Earth: A History of the Occupied Territories. London: Oneworld Publications, 2017.
• Pappe, Ilan. Ten Myths about Israel. London: Verso, 2017.
• Quigley, John. The Statehood of Palestine: International Law in the Middle East Conflict. Cambridge, UK: Cambridge University Press, 2010.
• Ring, Kenneth, with Ghassan Abdullah. Letters from Palestine: Palestinians Speak Out about Their Lives, Their Country, and the Power of Nonviolence. Tucson, AZ: Wheatmark, 2010.
• Roy, Sara. Hamas and Civil Society in Gaza: Engaging the Islamist Social Sector. Princeton, NL Princeton University Press, 2011.
• Said, Abdul Aziz, et al., eds. Peace and Conflict Resolution in Islam: Precept and Practice. Lanham, MD: University Press of America, 2001.
• Stephan, Maria J., ed. Civilian Jihad: Nonviolent Struggle, Democratization, and Governance in the Middle East. New York: Palgrave Macmillan, 2009.
• Tilley, Virginia, ed. Beyond Occupation: Apartheid, Colonialism and International Law in the Occupied Palestinian Territories. London: Pluto Press, 2012.

On Hunger Strikes (by Irish political prisoners* and others): a very select compilation

• Armbruster-Sandoval, Ralph. Starving for Justice: Hunger Strikes, Spectacular Speech, and the Struggle for Dignity (University of Arizona Press, 2017).
• Bardacke, Frank. Trampling Out the Vintage: César Chávez and the Two Souls of the United Farm Workers (Verso, 2011).
• Bargu, Banu. Starve and Immolate: The Politics of Human Weapons (Columbia University Press, 2014).
• Beresford, David. Ten Men Dead: The Story of the 1981 Irish Hunger Strike (Atlantic Monthly Press, 1987).
• British Medical Association. Medicine Betrayed: The Participation of Doctors in Human Rights Abuses (Zed, 1992) See Chapter 7: Hunger strikes and other human rights issues involving prisoners: 119-131.
• Cansiz, Sakine (Janet Biehl, trans. and ed.) Sara: Prison Memoir of a Kurdish Revolutionary (Pluto Press, 2019).
• Flynn, Barry. Pawns in the Game: Irish Hunger Strikes, 1912-1981 (The Collins Press, 2011).
• Goodman, Ryan and Mindy Jane Roseman, eds. Interrogations, Forced Feedings, and the Role of Health Professionals: New Perspectives on International Human Rights, Humanitarian Law, and Ethics (Human Rights Program at Harvard Law School, 2009).
• Grant, Kevin. Last Weapons: Hunger Strikes and Fasts in the British Empire, 1890–1948 (University of California Press, 2019).
• List of hunger strikes: https://en.wikipedia.org/wiki/List_of_hunger_strikes
• McConville, Seán. Irish Political Prisoners, 1848-1922: Theaters of War (Routledge, 2003).
• McConville, Seán. Irish Political Prisoners, 1920-1962: Pilgrimage of Desolation (Routledge, 2013).
• McConville, Seán. Irish Political Prisoners, 1960-2000: Braiding Rage and Sorrow. (Routledge, 2021).
• Miller, Ian. A History of Force Feeding: Hunger Strikes, Prisons and Medical Ethics, 1909–1974 (Palgrave Macmillan, 2016).
• Morrison, Danny, ed. Hunger Strike: Reflections (Brandon Books, 2007).
• O’Rawe, Richard. Afterlives: The Hunger Strike and the Secret Offer that Changed Irish History (The Lilliput Press, 2011).
• O’Rawe, Richard. Blanketmen: An Untold Story of the H-Block Hunger Strike (New Island, 2016).
• Pawel, Miriam. The Union of Their Dreams: Power, Hope, and Struggle in Cesar Chavez’s Farm Worker Movement (Bloomsbury Press, 2009).
• Pawel, Miriam. The Crusades of Cesar Chavez: A Biography (Bloomsbury Press, 2014).
• Ross, F. Stewart. Smashing H-Block: The Popular Campaign against Criminalization and the Irish Hunger Strikes, 1976-1982 (Liverpool University Press, 2000).

* “The use of a hunger strike as a means of protest in Ireland is a tradition dating to pre-Christian times. There [have] been hunger strikes by Irish republican prisoners since 1917….”

See too the following bibliographies at my Academia page: (i) The Modern Arab World, (ii) Radical Catholicism, (iii) Conflict Resolution and Nonviolence, (iv) The Life, Work, and Legacy of Mahatma Gandhi, (v) Human Rights, (vi) International Criminal Law, (vii) Israeli-Palestinian Conflict, (viii) Nonviolent Resistance in the Middle East, (ix) Punishment and Prison, (x) Terrorism, (xi) Torture, (xii) Violent Conflict and the Laws of War, and (xiii) Zionist Ideologies.

Notes on Presumption(s): Epistemic (or Inferential), Argumentative, and Legal

Apologia

Well over fifteen years ago I wrote to the general editor of the online Stanford Encyclopedia of Philosophy (SEP), Ed Zalta, as well as to several subject editors, asking them to consider an entry on “presumption.” A terse response informed me that it was not considered a topic worthy of inclusion in the encyclopedia. I’ve perhaps perversely persevered in the belief, however, that philosophers should analytically address the role of presumption as found in several kinds of reasoning and various argument fora. The following are some of the notes I collected at the time (at least those I’ve found), along with recently added material, which I’m proffering, once more, as evidence on behalf of the philosophical (and legal) significance of the concept—and conceptions—of “presumption.” Such an examination would profit by comparison with the role of assumptions and presuppositions in these same contexts. The SEP does have an entry on “presupposition.”  

My belief in the significance presumptive reasoning finds support in the work of a handful of philosophers (there may be others): Douglas Walton, Nicholas Rescher, Michael Williams, Stephen Toulmin, and Robert Brandom.  In Nicholas Rescher’s Cognitive Pragmatism: The Theory of Knowledge in Pragmatic Perspective (2001), presumption plays a pivotal role in epistemic justification as a more than plausible alternative to exclusively foundationalist, coherentist, or causal accounts (wherein epistemic mediation between sense experience and beliefs is not inferential but praxial, affording thereby an indispensable part for presumption): “Presumption is the epistemic analogue of ‘innocent until proven guilty.’” Rescher goes on to outline the requisite principles of presumption in what Avrum Stroll rightly describes as a “coherent picture of how classical epistemological problems can be viewed through the lens of a sophisticated, contemporary, pragmatic point of view.”

The importance of (defeasible) presumptions is pivotal to Robert Brandom’s “default and challenge” model of epistemic justification (again, on analogy with the legal presumption of innocence, but here ‘innocent until indicted on the basis of reasonable suspicion’): one is entitled (entitlement means ‘positive justificatory status’) to a belief or assertion—knowledge claim—in the absence of reasons (‘defeaters’) to think that one is not so entitled. Here prima facie or default (presumptive) entitlements avoid foundational regress (the critique from skepticism) and at the same time remain open to criticism, as the pragmatist insists that “[o]ne must start with a notion of taking or treating inferences as correct in practice” (from Brandom's Making it Explicit). Interestingly, Alvin Goldman seems to acknowledge, if only in a backhanded or indirect way, something like this when he notes that “humans cannot mount any effective track record argument for the reliability of human cognition without using human cognition.” The epistemic circularity here (or possibility of regress) being virtuous or necessary rather than vicious or avoidable. Defeaters, as Michael Williams (in Problems of Knowledge) has explained, are of two sorts: those invoking evidence and those concerning epistemic responsibility (the route of belief acquisition). The sharing of “justificatory responsibilities” between claimants and challengers appears to be an attractive, if not novel, feature of this model.

According to Goldman (in Knowledge in a Social World), something similar if not identical is found with regard to testimony in epistemology in the work of Tyler Burge and Elizabeth Fricker: “A hearer has a presumptive epistemic right to believe what a speaker (baldly) asserts even without positive independent reasons for trusting the speaker on this occasion. This presumption is defeated, however, if the hearer has negative evidence that renders the speaker’s assertion untrustworthy.”

Finally, Stephen Toulmin has shown how presumptive reasoning is integral to everyday argumentation, a theme later taken up in a more thorough if not systematic fashion by Douglas Walton. Both Toulmin and later Walton have also addressed the meaning and role of presumption in legal reasoning.

What follows are snippets from my notes on this topic (my research in this regard is ongoing) which I hope will provide the reader with a taste of this topic (one you might nevertheless savor if not relish).

*           *           *

Epistemic

• Epistemically speaking, “even if there is no hard evidence showing that a proposition can be proved true, it can be presumed (tentatively) true, subject to later rejection if new evidence proves it false.”
• A definition of presumption in terms of an inference typically has three components (i) the presumption-raising fact in a particular case at issue, (ii) the presumption formula, a (special type of) defeasible rule that sanctions the passage from the presumed fact to the conclusion, (iii) the conclusion is a proposition that is presumed to be true on the basis of (i) and (ii).
• Presumptions are inherently defeasible, that is, subject to rebuttable or refutation
• Philosophically speaking, we can speak of several kinds (or epistemic foundations) of presumption: rational, causal, inductive and dialogical.
• Presumptions vary in degree from weak to strong.
• Presumptions cannot prove a conclusion; on the contrary, they intervene when it is not possible to demonstrate a conclusion.
• Presumptions should be clarified in relation to assumptions and presuppositions.
• “Presumptions can be distinguished from assumptions or ordinary statements because the respondent in a dialogue cannot simply reject them; in order not to be committed to a presumption, the interlocutor needs to provide a rebuttal.” (Douglas Walton)
• Dialectically speaking, presumptions involves three elements: (i) it must be based on a generally accepted principle of inference (otherwise it would be an assumption); (ii) it is used in conditions of lack of evidence to meet a standard of proof (otherwise it would be an ordinary defeasible inference of any kind), and (iii) it is used to shift a burden of proof in types of dialogue characterized by an opposition of viewpoints and argumentation, such as persuasion dialogue.

Argumentative

• “For both theoretical and practical reasons … it is helpful to think of most practical warrants as holding in general rather than necessarily. Where good practical reasons exist for enumerating explicitly the specific (though rare) exceptions and exclusions that limit the application of such a warrant, we can legitimately state the resulting claim as a presumption, setting the exceptions and exclusions on one side to be dealt with separately as rebuttals when and only when they arise” (Toulmin, Reike and Janik).
• There are different theories of presumption in argumentation, but in general we find two main types or levels: inferential and dialectical.
• The notion of presumption is essential to an analysis of argument base on informal logic.
• Douglas Walton’s dialogue-based approach to argumentation “explains presumption as a kind of speech act that is stronger than a pure assumption, in respect to how it affects commitment in dialogue, but weaker than assertion.”
• “The key characteristic of presumption as a speech act in dialogue on this theory is that it reverses a burden of proof by switching the roles of the two participants in the dialogue. Normally, the burden of proof is on the proponent asserting a proposition, but in the case of a presumption, a burden of disproof falls onto the respondent, once it has been accepted as a commitment in the dialogue.”
• Presumptive reasoning, according to Walton and in the words of Christian Kock, “creates a special kind of inference, different from both deductive and inductive inference, and characterized in particular by the shifting of the burden of proof. [….] Walton has shown that presumptive reasoning is widespread in real-life argumentation of any kind.” Kock has in fact written a compelling critique of particular features of Walton’s conception “argumentation schemes” with presumptive reasoning as these bear upon practical reasoning in general. (Thus an appreciation of Walton’s elucidation of presumption and presumptive arguments should be complemented by Kock’s evaluative critique.)

Legal (criminal law)

• Presumptions are common in legal reasoning (where it is used, for example, to shift the burden of proof) generally and of course it is conspicuous in the criminal law’s principle of “presumption of innocence.”
• Presumption of innocence in criminal law is epistemically linked to a coherent conceptual cluster that includes, first and foremost: reasonable doubt, the benefit of the doubt, the standard of proof, the prosecutorial burden of proof, and relevance and reliability (and due process more generally). This conceptual cluster makes for what Larry Laudan calls the “error distribution doctrine” in a criminal trial, all of which are said to “safeguard the fate of the defendant by making it hard to convict any but the most obviously guilty.”
• “ … [T]he presumption of innocence does not hold that individuals should be considered not guilty until proven guilty—much more strongly, they must be treated as innocent until proven guilty.” (George P. Fletcher)
• According to Larry Laudan, “the presumption of innocence” precludes jurors from attaching any significance to the fact that the defendant has already been found probably guilty [i.e., is more guilty than innocent] in a series of prior hearings and tribunals.”
• “…[T]here is little consensus about precisely what the presumption of innocence means, [thus] there is ardent debate about to whom and when it applies, and … courts and legal scholars disagree about whether it stands on its own legs doctrinally or is simply an obvious, if nontrivial, consequence of the standard (or perhaps the burden) of proof.” (Laudan)
• “In science, the null or default assumption is (for example) that there is no causal link between one thing or another. In law, the default position is the claim that the defendant is innocent. There is a less obvious, but no less important, analogy between the two forms of inquiry. It amounts to this: Just as, in the clinical trial of a drug, the failure to prove a drug’s efficacy is not proof that the drug is nonefficacious [in the instant or other therapeutic applications], so the failure to prove a defendant’s guilt is not proof that he did not commit the crime. In each case, the evidence shows only that the pertinent standard of proof was not satisfied. Put in its simplest terms, failure to prove X is never a proof of not-X.” (Laudan) To drive this point home, Laudan suggests that “almost the only way a criminal defendant can secure a decision that actually implies his innocence is first to win an acquittal in a criminal case and then to bring and win a suit for malicious prosecution. No other judgment in the justice system represents the finding of innocence.”
• According to Laudan, the notion of presumption of innocence in criminal law is muddled or mistaken because it fails to make a fundamental distinction between “material” innocence and “probatory” innocence, according undue weight to the former. This is one of several ways Laudan illustrates that argument: “The assumption of material innocence is no more appropriate than it is necessary. After all, a juror, at the outset, has no basis for either affirming or denying the material innocence of the defendant, nor has she any idea what sorts of exculpatory and inculpatory evidence will arise in the course of the trial, and so on. Worse, the assumption of material innocence requires the juror to deny what she already knows: to wit, that persons do not get the trial state in a criminal proceeding if the probability of their material guilt is vanishingly small [I believe this to be arguable with several classes of defendants]. Insisting that the juror must go into a trial utterly convinced that the defendant is materially innocent belies the elaborate winnowing structure of the legal system [I doubt people of color, especially Blacks, as well as those either absolutely or relatively poor would characterize this as a ‘winnowing structure.’ They might, on the contrary, see it as a ‘collaborative structure’ that gives form to systematic biases of one kind or another.] In the end (or in the beginning), “[t]he crucial point is that the juror must be willing to accept, without reservation, the thesis of probatory evidence, regardless of what tentative hypotheses she may have entertained about material guilt and innocence.”
• The Supreme Court of the U.S. had made it clear that the presumption of innocence “applies only to the trial itself and, within the trial, only to the jury or other trier of fact.” (Laudan)
• The presumption of innocence, it has been argued, “has been progressively eroded by broad offence definitions, shifts in burdens of proof, and the use of strict liability.” R.A. Duff states that our traditional conception of this presumption involves (or involved) a “broader principle of trust: we should presume each other to be ‘free of harmful intentions;’” and it even provides for a presumptive trust of offenders not to commit future crimes. As Duff explains: “An essential feature of a liberal penal system is that punishment is finite and limited: what the offender is to undergo is determined in advance by a sentencing process structured by the question of what constitutes an appropriate response to his crime. His sentence might involve restrictions on his liberty, including imprisonment, and forms of supervision that would normally be illegitimate; but once it is over, he is free from those restrictions and from such supervision, without having to prove that he will refrain from future crimes; having served his sentence, he is once again entitled to the broad presumption of innocence. Provisions for ‘dangerous’ persistent offenders that allow for their indefinite or life-long detention abandon this aspect of liberal criminal law, and imply that a persistent offender can lose his right to that presumption—not just for a limited time, but indefinitely or for life.”
  
• George P. Fletcher writes that “it is not entirely clear to common law thinkers whether the term ‘innocence’ [in the ‘presumption of innocence’] refers to innocence relative to the actus reus and mens rea or, alternatively, to innocence from any form of culpability relative to the commission of the offense.”
• Further evidence of the erosion of the presumption of innocence can be indirectly inferred from the fact that the criminal justice system often operates in a manner that forgets or ignores that fact that “the focus of punishment should be the act alone and not the actor’s moral character or criminal record. It is fundamentally unjust to convict a defendant for a specific crime just because it is known that he has committed many crimes in the past. If the presumption of innocence means anything in contemporary criminal law, it means that we must judge the alleged criminal act in abstraction from experience with the suspect and his history of criminal conduct.” (Fletcher).
• Fletcher reminds us that “[t]he presumption of innocence is one of the minimal conditions of due process, In common law jurisdictions, we express this standard as ‘proof beyond a reasonable doubt.’ Continental lawyers make the same point by stressing the maxim in dubio pro reo—all doubts about guilt or innocence should be resolved in the favor of the accused.” Moreover, the centrality or importance of this principle to liberal criminal law can be seen in in the oft-repeated proposition that “it is better to let ten guilty defendants go free rather than to convict one innocent. If justice requires the punishment of the guilt, then the principles of fair trial, skewed as they are [or should be] to the interests of the defendant, permit some injustices to occur.”
• Presumptions in law are distinguished in three categories: presumptions of fact, or presumptio hominis (or conclusions drawn from principles from everyday experience and past facts), presumptions of law (or inferences grounded on legal rules), and irrebuttable presumptions, or praesumptio iuris et de iure (or conclusions from principles of law).

In Indian/Indic philosophy (alas, this is a cursory introduction as I am not a specialist in this area)

• Arthāpatti is translated as either “postulation” or “presumption” (Pradeep P. Gokhale prefers ‘explanatory implication’), and “is broadly recognized as a pramāṇa,* whether as a sui generis one, as by Mīmāṃsā and [Advaita] Vedānta, or as a type of anumāna [inferential reasoning], as by Nyāya.” (Malcolm Keating) It is also “an important pramāṇa for the interpretation of Vedic texts and its purported non-reducibility to anumāṇa raises interesting questions about the relationship between epistemology and logic.” (Keating) As a presumption it is, as in Western philosophy, rebuttable, and is characterized in one definition as “the process of knowledge [or knowing] which makes something intelligible by assuming something else.” (John Grimes)
• “The Prābhākhara school [of Mīmāṃsā] says that it involves an element of doubt and postulation’s job is to remove the doubt. [….] Advaita Vedānta says that there is neither a doubt nor a conflict, but merely an inexplicable fact which needs explaining. Presumption is the framing of an explanatory hypothesis on the basis of the knowledge of the fact to be explained.” (Grimes)
• A common example from the literature: “If fat Devaddata [‘the Sanskrit version of John Smith’] does not eat by day, [presumably] he must eat by night.” “Bhāṭṭa [Mīmāṃsaka] authors claim that there is a variety of arthāpatti called śrutāarthāpatti in which one supplies words, not meanings. The example they mention invokes Devadatta again and says: ‘The fat Devadatta does not eat during the day.’ One does not just conclude with the thought that he must eat at night … but rather supplies the actual sentence ‘He eats at night.’ At that point the postulated sentence conveys its meaning.” (Elisa Freschi)

* In other words, a reliable method or means of knowing or knowledge; other means, not all of which are accepted by all the “schools” of philosophy: sense perception, inference, verbal testimony, comparison or analogy, and ”non-cognition” (the last, for the Bhāṭṭa Mīmāṃsakas and Advaita Vedāntins, is the means whereby one knows non-existence or abhāva, for the absence of an object is known due to its non-perception, the presumption here being that non-existence is a separate ontological or metaphysical and epistemological category).

References & Further Reading

• Brandom, Robert B. Making It Explicit: Reasoning, Representing, and Discursive Commitment. Cambridge, MA: Harvard University Press, 1994.
• Duff, R.A. “Who Must Presume Whom to be Innocent of What?” University of Minnesota Law School, Duff (December 17, 2012). Netherlands Journal of Legal Philosophy, Forthcoming; Minnesota Legal Studies Research Paper 12-65. Available: https://ssrn.com/abstract=2190593
• Duff, R.A. and Stuart P. Green, eds. Philosophical Foundations of Criminal Law. Oxford, UK: Oxford University Press, 2011.
• Fletcher, George P. The Grammar of Criminal Law: American, Comparative, and International—Vol. 1: Foundations. New York: Oxford University Press, 2007.
• Freschi, Elisa. “Meanings of Words and Sentences in Mīmāṃsā,” in Alessandro Graheli, ed. The Bloomsbury Research Handbook of Indian Philosophy of Language. London: Bloomsbury Academic, 2020.
• Godden, David M. and Douglas Walton. “A Theory of Presumption for Everyday Argumentation,” Pragmatics & Cognition, 15:2 (2007): 313-346.
• Grimes, John. A Concise Dictionary of Indian Philosophy: Sanskrit Terms Defined in English. Albany, NY: State University of New York Press, 1996 (revised ed.).
• Keating, Malcom. “What is arthāpatti?” The Indian Philosophy Blog (5 June 2015).
• Kock, Christian. Deliberative Rhetoric: Arguing about Doing. Windsor, Ontario: University of Windsor, 2017.
• Laudan, Larry. Truth, Error, and Criminal Law: An Essay in Legal Epistemology. New York: Cambridge University Press, 2006.
• Macagno, Fabrizio and Douglas Walton, “Presumptions in Legal Argumentation,” Ratio Juris, Vol. 25, No. 3 (September 2012): 271-300.
• Rescher, Nicholas. Cognitive Pragmatism: The Theory of Knowledge in Pragmatic Perspective. Pittsburgh, PA: University of Pittsburgh Press, 2001.
• Toulmin, Stephen, Richard Rieke, and Allan Janik. An Introduction to Reasoning. New York: Macmillan Publishing Co., 1984.
• Walton, Douglas N. Plausible Argument in Everyday Conversation. Albany, NY: State University of New York Press, 1992.
• Williams, Michael. Problems of Knowledge: A Critical Introduction to Epistemology. New York: Oxford University Press, 2001.

Toward outlining the philosophical, political, and legal folly of Originalist constitutional theory

Let us take a brief look at two passages from Larry Solum’s defense of “Originalism” as a legal approach to interpreting our constitution in an op-ed the other day for the Los Angeles Times:

(i) “Originalists believe that judges are bound by the constitutional text and that its words should be read as the public would have understood them at the time each provision was written.”*

(ii) Two hundred and forty years ago John Adams wrote of the importance of “a government of laws and not of men.” This ideal is not some musty platitude whose time has passed. If the events of recent years show anything, it is that we should fear the arbitrary rule of individuals, who do what they want and not what the law requires. The core of originalism is the rule of law. And that is not something we should fear.”

Re: (i) We should consider long and hard what it means for a secular democratic polity to be bound, in the first instance, as a fundamental hermeneutic principle, to a “text.” This approach to the constitution renders it much like a religious text, with its corresponding aura of holiness, indeed, I would argue it makes it virtually indistinguishable from a “sacred” text, and thus we have religious-like emotions, attitudes, and approaches associated with this text. As with religious texts, there will be all sorts of interpretations: from the most literal and simple-minded to the most metaphoric or allegoric or convoluted, and these interpretive approaches will find their leading lights and juridical “sects,” both in the courts and in the legal academy. The saving grace here is that we can add amendments to the constitution, although that process is rather cumbersome and difficult. This, too, is much like the canonical texts of a religious tradition, which are often accompanied by theological and philosophical commentary, some of which may take on a life of its own (examples abound here, but consider the role of the Talmud in Judaism which has uncanny similarities with legal decision-making and judicial rulings, including the role of dissenting opinions, in our legal system).

Let’s say we can live with the constitution construed metaphorically as a “sacred text” central to the governing of a democratic polity in a nation-state. For me, the most troubling component of Solum’s description is that the words of the constitution “should be read as the public would have understood them at the time each provision was written.” I cannot summon any definitive or sound reason to account for why this should be so. To do so is akin to interpreting “our” religious texts in the manner understood by adherents at the time they were written! Do we really want to do that? I would prefer we identify the regnant constitutional values and principles within the constraints of democratic theory and practice, including human dignity and human rights (all of which have moral presuppositions and assumptions) to be our foremost guide in interpreting the constitution so as to make it relevant to our time and place. So much more might be said in defense of this but I am not willing to attempt it here, preferring instead to defer below to the observations and critiques of brighter minds than mine on this topic.

Re: (ii) To avoid “rule by individuals” through adherence to the “rule of law” in a would-be democratic polity, we need not subscribe to “originalism” unless we cannot imagine any compelling alternative. I think it is possible to imagine—and others have argued for—alternative ways to read and interpret the constitution which, while not ignoring the words, give pride of place to principles and values, all in keeping with the open-texture of our concepts. On occasion, our moral awareness, legal, and political judgments will jointly conclude that it may be necessary to let the spirit of the text trump its letter, especially if the latter is “as the public would have understood [it] at the time … [it] was written.”

* In Judge Amy Coney Barrett’s words, “I interpret the Constitution as a law,” she said, “and … I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time....” In brief, the Constitution means what it meant in the 18th century, full stop! But we live in the 20th century and how can this reading of the text be determinate under such conditions and circumstances? [emphasis added]

Cf. what Professor Michael Dorf has said about Judge Barrett’s views on “originalism” (he first characterizes her remarks from a panel they were both on):

“[She] says that she is not defending originalism as determinate (not ‘what's on offer’). She then says that originalism isn’t more indeterminate than other constitutional methodologies. Notably she does not say that it’s more determinate.

Now take a moment to reflect on what Judge Barrett has been saying since she was nominated to the Supreme Court. In her opening statement on Monday she said: ‘A judge must apply the law as written, not as the judge wishes it were.’ She then repeated that sentiment, stating that as an appeals court judge, she has done her ’utmost to reach the result required by the law, whatever [her] own preferences might be.’

What exactly does that mean when, as Judge Barrett said during our panel, the level of generality of the original meaning is too abstract to provide concrete guidance? Two justices can disagree over whether the Second Amendment protects a right to carry semi-automatic weapons in public. They can disagree over whether race-based affirmative action denies equal protection. They can disagree over whether the First Amendment protects a right to make unlimited campaign expenditures. Etc. Because of the generality of the text and its original meaning, both justices are applying the law as written. Accordingly, a promise by an originalist to apply the law as written does not preclude resort to that judge’s preferences. The under-determinacy that Judge Barrett acknowledges in the Constitution as construed by every method of interpretation, including the one she favors, invites recourse to her own preferences. [emphasis added]

Now, to be clear, I do not mean to be suggesting that Judge Barrett is more likely than any other judge or justice to see what she wants to see in the Constitution (or statutes). She isn’t. But neither is she less likely. The contrast she draws between the law as written and her preferences is bogus—and for reasons she herself has acknowledged. If, based on what we know about her record and values, you think you’re going to like Justice Barrett’s preferences, you can support her confirmation so long as you’re untroubled by the rank hypocrisy of filling this seat under these circumstances. But if you fear that Judge Barrett’s preferences will move the law in the wrong direction, then even apart from the procedural objections, she has given you all the reason you need to oppose her confirmation.”

The following remarks on aspects of Originalist constitutional theory are from Jack Balkin several years ago at his group blog, Balkinization:

“’Meaning’ is a capacious concept, and indeed, it has many different meanings, including semantic content, purposes, intentions, practical entailments, and cultural associations.  Conceived most broadly, ‘meaning’ includes a vast array of cultural associations, traditions, conventions, and background assumptions.  Any version of ‘original meaning’ in legal interpretation must inevitably carve out a subset of these cultural meanings and treat this portion as remaining in legal force over time.  Therefore, any version of ‘original meaning’ will necessarily be anachronistic, because it will insert some portion of the vast array of past cultural meanings into a contemporary setting without bringing the other parts along with it.

Inevitably, then, we face a choice in the present about what aspects of cultural meaning should constitute ‘original meaning’ for purposes of constitutional interpretation.  There is no natural and value-free way to make this selection.  It cannot be settled by the meaning of ‘meaning,’ much less the meaning of ‘original.’  It is a choice that is informed by the purposes of a constitution and the promotion of the kind of legitimacy (democratic, social, procedural, or moral) we want our government to have.”

“When you dig deeper into the weeds of our theories, none of our versions of originalism is truly neutral or value-free. They are premised on important values that originalism should serve, just different values. I think that it’s very important to be upfront about the normative goals implicit in any theory of interpretation, much less a theory of originalism.”

“[W]e often look to the intentions, purposes, and understandings of the framers and adopters as legal resources for constitutional interpretation (i.e., constitutional construction) but we do not always have to accept them as legal commands. In contrast, we continue to accept the constitutional text as law.”

Finally, this delightful blog post by Eric Segall at Dorf on Law gets to the heart of the “folly” of Originalism as well as the “surreal” nature of Judge Amy Coney Barrett’s testimony at the Senate Judiciary Committee hearing on her nomination to the Supreme Court.

QAnon: Theory or Phantasy?

QAnon is typically described as “a far-right conspiracy theory.” I think we should get rid of the word “theory” in this description or definition (at best, it is a pseudo-theory). It accords this specific (and ever-changing) cluster of socially or culturally and politically incoherent and irrational ideas with some semblance of respectability: calling to mind the rationality, facts, hypotheses, evidence, abstract or principled thinking that bear upon or directly involved in explanation and understanding, not only in the sciences, but in everyday life and practical reasoning as well (e.g., no part of this putative ‘theory’ is based on fact). QAnon is not a theory, a term that accords this clusterfuck too much credence or plausibility when it is, in fact, completely bereft of same. It is rather a full-fledged collective phantasy (unfortunately, there is comparatively little literature on this subject) … and that is how it should be described. I hope to post at a later date more about collective phantasies, assuming a distinction between benign, harmless, or creative fantasies (which, unlike phanatasies, occur largely if not exclusively at the level of individual persons, while phantasies can take individual and/or collective form) and psychologically baneful phantasies (the lines drawn here may of course be a bit fuzzy and porous, as they often are in such boundary marking), although both could be said to function by way of making sense of our perceptions and feelings or emotions, the latter being more deeply rooted in the unconscious and of a regressive character with regard to moral and psychological development and individuation. And thus there is something stronger than an elective affinity between the sociopathic cult of Trump and the QAnon conspiracy phantasy that has spread like wildfire across several social media platforms.

For an introduction the distinction between “fantasy” and “phantasy” (although often ignored or the meanings sometimes conflated), I’ve found the following useful:

• Arlow, Jacob A. “Unconscious Fantasy,” in Moore, Burness E. and Bernard D. Fine, eds. Psychoanalysis: The Major Concepts (Yale University Press, 1995): 155-162.
• Brakel, Linda A.W. Philosophy, Psychoanalysis, and the A-rational Mind (Oxford University Press, 2009).
• Hinshelwood, R.D. Clinical Klein: From Theory to Practice (Free Association Books, 1994).
• Segal, Julia. Phantasy in Everyday Life: A Psychoanalytical Approach to Understanding Ourselves (Penguin Books, 1986).
• Segal, Julia. Phantasy (Icon Books, 2000).
• “Unconscious Phantasy,” in Spillius, Elizabeth Bott, et al. The New Dictionary of Kleinian Thought (Routledge, 2011): 3-15.

The first-person avowal of humility: a pragmatic contradiction … or a “state that cannot without ridicule be invoked in the first-person singular?”

In reading Amy Barrett’s “opening statement” today before the Senate Judiciary Committee Hearing, I came across the following standard or ritualized utterance made on such occasions: “I come before this committee with humility about the responsibility I have been asked to undertake, and with appreciation for those who came before me.” The word that jumps out at me is “humility,” because when used in this manner under these circumstances and on these occasions, it suggests to me a “pragmatic contradiction,” the contradiction arising from the very act of the (performative?) utterance itself. The putative possession of humility by the speaker is undercut by a claim made under these sorts of circumstance and on these kinds of occasions.

Understood as a ritualized linguistic utterance of deference, it is intended to ingratiate oneself to members of the committee and indeed to all those viewing the confirmation hearings (and that is not pertinent to, let alone evidence of, one’s humility, although it might be considered an expression of manipulative meekness). One of course may desire or wish to be humble, to have humility, but that is something a bit different, is it not? Notice my comment is not peculiar to Barrett, for I have simply used her remarks by way of making a brief argument. The contradiction here is analogous to those attached to conative or intentional mental states that fall under the description of “willing what cannot be willed” because they are essentially “by-products,” as Jon Elster’s explains in his chapter in Sour Grapes (1983) on the subject. Thus “I can,” in the words of the late psychologist Leslie H. Farber quoted by Elster, “will knowledge but not wisdom; going to bed but not sleeping; eating but not hunger [fasting would not be an exception as hunger is not object of the desire; similarly, I’m not quite sure about the case of one going on a ‘hunger strike,’ for the principle reason or aim of this nonviolent form—with regard to others, perhaps, however, not with respect to oneself—of protest is not in the first place to achieve a state of hunger but to communicate to others the sincerity and urgency of the cause one is fighting for by engaging in deliberate self-suffering involving a refusal to eat, the result of which is of course a state of hunger]; meekness but not humility; scrupulosity but not virtue; self-assertion or bravado but not courage….”

After writing this I returned to Elster’s invaluable discussion of this topic in Sour Grapes: Studies in the subversion of rationality (which is largely beholden to Farber, but treats additional matters in rationality and moral psychology) and came across this exquisitely delightful passage:

“Some of Farber’s other instances suggest the notion of ‘states that cannot without ridicule be invoked in the first person singular.’ It is sometimes said that to invoke dignity is to forfeit it [I do not happen to believe that this is always or even often true, although I can imagine instances in which it amounts to forfeiture]; the same holds essentially for such states as romantic irony, humility or innocence [not in the juridical sense]. This is a major theme in Stendhal’s writings throughout his life. He notes ‘how great is the silliness of Voltaire, when he has a person saying: I feel such and such. It is as great as possible.’ Similarly one invites disbelief by saying: I remember that I felt such and such. ‘It is very difficult to describe from memory what was natural in your behaviour; it is easier to evoke what was artificial or affected since the effort needed to put on an act also engraves it in memory.’”

References & Further Reading

• Elster, Jon. Sour Grapes: Studies in the subversion of rationality (Cambridge University Press, 1983).
• Farber, Leslie H. (Robert Boyers and Anne Farber, eds.) The Ways of the Will: Selected Essays (Basic Books, 2000).
• Miller, William Ian. Faking It (Cambridge University Press, 2003).

Sage-rulers and philosophers, on the one hand, the “common man” on the other

In reading afresh Roger Ames’ Art of Rulership: A Study of Ancient Chinese Political Thought (1994; I first read it in the late 1990s), I came across a wonderful passage which makes a comparison between morally and spiritually noble or ideal-typical “sage-rulers,”* as well as canonical Chinese philosophers, with the proverbial “common man” in society, that is, the ruler’s subjects, a comparison that, one could say, insinuates (as it does in other passages of this text) the dependence of the ruler on his people. In the case of our two philosophers, it could be said to illustrate the epistemic condition of being well-versed in “knowing that” does not necessarily encompass a “knowing how” (that is, non-propositional knowledge or ‘knowledge by acquaintance’):

‘Even sage-rulers such as T’ang and Wu would be unable to match the Yüeh people in maneuvering a small craft on the rivers and lakes. Even an outstanding minister such as Yi Yin would be unable to match in breaking to harness the fine horses of the north. Even men as broad in understanding as Confucius and Mo Tzu would be unable to match the mountain people in foraging about the thicket and scaling perilous slopes.’ (In reading the last sentence I thought of the Dalai Lama fleeing Tibet in 1959 with the help of Tibetans soldiers and some CIA-sponsored troops, being granted political asylum upon their crossing into India!)  

These sage-rulers possess neither the omniscience and omnipotence of the theist’s God, nor the omniscience of the Buddha or that of the Jaina kevalin, an omniscient, enlightened being (‘competition’ with Jains on this subject spurred Buddhist philosophizing about the precise nature of the Buddha’s omniscience). But one point of this passage (I’ve only shared part of it, so there are a few other points as well) is that the human intellect or simply rational knowledge and understanding ‘is not adequate to the task of bring proper order to the world.’ Only ‘practicing the Way [Dao]’ can bring about such order.

* The sage-rulers are both historical and perhaps mythical, going back to a utopian ”Golden Age” in China. In Chinese history, utopian imagination and thought is—and with apologies to Edward Bellamy—“looking backward”—while in European history and lands in which Abrahamic religions are predominant, utopias are “looking forward.”

Relevant bibliography: Classical Chinese Worldviews

Relevant study guides: (i) Daoism and (ii) Confucianism.

Transactional and Transformative Leadership in a Democratic Polity

   

The Confucian ruler, regulating his conduct so that his activities reflect a commitment to the expression of his moral stature, is able to influence his subordinates and transform his people. This is the political principle of the guidance and transformation of the people through moral example. — Roger T. Ames

While the passage that follows below from the Analects of Confucius represents, in the form of the ruler, a strikingly benevolent form of paternalistic governance, it might or perhaps should be viewed as useful in addressing the subject of moral and psychological individuation or “self-rule” (in democratic theory, which often uses the language of ‘autonomy’ here, this can be understood to apply to both the individual and the group or society), in particular, for those who’ve yet to make sufficient progress on what, in Confucian terms, is the path of self-cultivation. As Roger Ames explains in The Art of Rulership: A Study of Ancient Chinese Political Thought (State University of New York Press, 1994), the “ruler, cultivating and giving expression to his fundamental moral endowment, serves as an example to emulate in the development of their own natures” (Analects 12.17): “Lord K’ang asked Confucius about governing, and Confucius said, ‘Utter rectitude is utter government. If you let rectitude lead the people, how could anyone fail to be rectified.” In Ames’ words, this and similar passages add up to a political principle for the guidance and transformation of the people through moral example.

Without going into detail as to precisely what this means in the Analects and Confucian traditions more widely (as when it entails, for instance, wu-wei, or ‘non-action’), one can see a similar assumption and moral psychological concern at work when people are rightly aghast at the rhetoric and behavior of the President, having to explain to their children, for example, why these words or that behavior is not something one should imitate or emulate. While many of us don’t expect our politicians to be moral saints or even of strong moral fiber or character, at the same time we don’t expect their actions in public fora to be grossly illegal, unprincipled, morally repugnant or evil. Cynicism, feelings of powerlessness, and even apathy may have caused too many of us to become complacent with politicians practicing what James MacGregor Burns famously described (in his 1978 book, Leadership) as “transactional” leadership (hence the role of ‘power-broker’ or ‘wheeler-dealer’ and Trump’s view of himself as having mastered ‘the art of the deal’). Burns compares this to a rather different type of leader, one capable of creating progressive social change through a transformation of public attitudes and values (or a through a transcendence, sublimation, or transformation of spontaneous or expressed preferences), one whose “leadership becomes moral in the sense that it raises the level of human conduct and ethical aspiration of both leader and led, thus [having] a transformative effect on both.” If we are capable of modulating our political cynicism, or overcoming our jadedness about most-things-political, perhaps we might accord some consideration to the importance of politicians, especially those granted a national stage, acting in the manner of a Confucian or Confucian-like ruler, one whose “relationship with … subordinates is characterized by a total absence of compulsion.”

I’ve opened quite a can of worms with this brief post, and to mix metaphors, we’ve only skimmed the surface. To mitigate this somewhat, I’m appending a few titles here, all of which presuppose or assume that democracy is not simply a matter of aggregating naked preferences, that democratic procedures, representation, deliberation, and participation are capable of assiduously “laundering” and transforming our “dirty” or “selfish” or morally regressive preferences in the direction of enlightened or “true” self-interests and the common good, in the service of individual and collective welfare, well-being and possibly even human happiness or flourishing (eudaimonia). I’ve not included below works from the Confucian tradition; should you be interested in those, you can consult my study guide for same as well as browse through its bibliography. If all goes as planned, I will soon post a short discussion of Ames’ book, The Art of Rulership: A Study of Ancient Chinese Political Thought (1994), a translation and philosophical analysis of the ninth essay (‘book nine’) of the Huainanzi (Huai-nan Tzu). This ancient Chinese text “consists of a collection of essays that resulted from a series of scholarly debates held at the court of Liu An, Prince of Huainan, sometime before 139 BCE. The Huainanzi blends Daoist, Confucianist, and Legalist concepts,” resulting in a “remarkable synthesis” in the words from Harold D. Roth’s Foreword. Thus this text goes beyond Confucianism proper while incorporating some invaluable insights from the Analects and other works important to the Confucian tradition(s).

The titles listed here make different arguments but it is not unreasonable to believe they have strong family resemblance to each other. While they do not typically or directly address questions of national leadership as such, I think the careful reader can make the requisite inferences or draw appropriate conclusions from the material germane to those questions. In any case, they should help one examine the relevant comparisons (similarities and differences) between several lines of compelling Liberal democratic theory and some species of political philosophy found in classical Chinese worldviews. Finally, see too our earlier post on the Confucian concept of li.

   

Suggested Reading

• Conley, Sarah. Against Autonomy: Justifying Coercive Paternalism (Cambridge University Press, 2013).
• Dworkin, Gerald. The Theory and Practice of Autonomy (Cambridge University Press, 1988).
• Elster, Jon. Ulysses Unbound: Studies in Rationality, Precommitment and Constraints (Cambridge University Press, 2000).
• Fontana, Benedetto, Cary J. Nederman, and Gary Remer, eds. Talking Democracy: Rhetorical Perspectives on Rhetoric and Democracy (Pennsylvania State Press, 2004).
• Garsten, Bryan. Saving Persuasion: A Defense of Rhetoric and Judgment (Harvard University Press, 2006).
• Garver, Eugene. Rhetoric: An Art of Character (University of Chicago Press, 1994).
• Gilbert, Alan. Democratic Individuality (Cambridge University Press, 1990).
• Goodin, Robert E. Utilitarianism as a Public Philosophy (University of Chicago Press, 1995).
• Goodin, Robert E. Reflective Democracy (Oxford University Press, 2003).
• Goodin, Robert E. Innovating Democracy: Democratic Theory and Practice after the Deliberative Turn (Oxford University Press, 2008).
• Holmes, Stephen. Passions and Constraint: On the Theory of Liberal Democracy (University of Chicago Press, 1995).
• Kock, Christian. Deliberative Rhetoric: Arguing about Doing (University of Windsor, 2017).
• Norton, David L. Democracy and Moral Development: A Politics of Virtue (University of California Press, 1991).
• Sher, George. Beyond Neutrality: Perfectionism and Politics (Cambridge University Press, 1997).
• Urbinati, Nadia. Mill on Democracy: From the Athenian Polis to Representative Government (University of Chicago Press, 2002).
• Urbinati, Nadia. Representative Democracy: Principles and Genealogy (University of Chicago Press, 2006).

Indigenous Peoples: Culture, Law and Politics — Suggested Reading

[Indigenous Peoples’ Day on the second Monday in October is in reference to the indigenous peoples of the Americas. It is distinguished from the global celebration of International Day of the World’s Indigenous Peoples, 9 August.]  

Adoption of the United Nations Declaration on the Rights of Indigenous Peoples: 13 years later (12 September 2020)

• The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the General Assembly on 13 September 2007, with 144 countries voting in support, 4 voting against and 11 abstaining.
• Thirteen years have passed since the UN Declaration was adopted by the General Assembly. Since then, the four countries voting against have reversed their position and now support the Declaration.
• Today the Declaration is the most comprehensive international instrument on the rights of indigenous peoples. It establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples.

Some highlights of the Declaration

• Seventeen of the forty-five articles of the Declaration deal with indigenous culture and how to protect and promote it, by respecting the direct input of indigenous peoples in decision-making, and allowing for resources, such as those for education in indigenous languages and other areas.
• Fifteen of the forty-six articles of the Declaration are about indigenous peoples’ participation in all decisions that will affect their lives, including meaningful participation in a democratic polity.
• The Declaration confirms the right of indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress. Essentially, the Declaration outlaws discrimination against indigenous peoples, promotes their full and effective participation in all matters that concern them, as well as their right to remain distinct and to pursue their own visions of economic and social development.

See too the bibliographies on (i) The Bedouin, (ii) North American Indians, (iii) Alternative and Complementary Medicine, and (iv) Genocide at my Academia page. 

        

• Åhrén, Mattias. Indigenous Peoples’ Status in the International Legal System. Oxford, UK: Oxford University Press, 2016.
• Allen, Stephen and Alexandra Xanthaki, eds. Reflections on the UN Declaration on the Rights of Indigenous Peoples. Oxford, UK: Hart Publishing, 2011.
• Anaya, S. James. Indigenous Peoples in International Law. New York: Oxford University Press, 1996.
• Balick, Michael J. and Paul Allan Cox. Plants, People, and Culture: The Science of Ethnobotany. Boca Raton, FL: CRC Press, 2^nd, 2021.
• Barelli, Mauro. Seeking Justice in International Law: The Significance and Implications of the UN Declaration on the Rights of Indigenous Peoples. New York: Routledge, 2016.
• Bisaz, Corsin. The Concept of Group Rights in International Law: Groups as Contested Right Holders, Subjects and Legal Persons. Leiden: Martinus Nijhoff, 2012.
• Buchanan, Allen. Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law. New York: Oxford University Press, 2004.
• Curci, Jonathan. The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property. Cambridge, UK: Cambridge University Press, 2010.
• Gilbert, Jérémie. Indigenous Peoples’ Land Rights under International Law: From Victims to Actors. Leiden: Brill|Nijhoff, 2^nd, 2016.
• González, Roberto J. Zapotec Science: Farming and Food in the Northern Sierra of Oaxaca. Austin, TX: University of Texas Press, 2001.
• Hohmann, Jessie and Marc Weller, eds. The UN Declaration on the Rights of Indigenous Peoples: A Commentary. Oxford, UK: Oxford University Press, 2018.
• Keal, Paul. European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of International Society. Cambridge, UK: Cambridge University Press, 2003.
• Kornfeld, Itzchak. Mega-Dams and Indigenous Human Rights. Northampton, MA: Edward Elgar Publishing, 2020.
• Mgbeoji, Ikechi. Global Biopiracy: Patents, Plants, and Indigenous Knowledge. Ithaca, NY: Cornell University Press, 2006.
• Niezen, Ronald. The Origins of Indigenism: Human Rights and the Politics of Identity. Berkeley, CA: University of California Press, 2003.
• Novic, Elisa. The Concept of Cultural Genocide: An International Law Perspective. Oxford, UK: Oxford University Press, 2016.
• Posey, Darrell A. and Graham Dutfield. Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities. Ottawa, ON: International Development Research Centre, 1996.
• Rombouts, S.J. Having a Say: Indigenous Peoples, International Law and Free, Prior and Informed Consent. Oisterwijk, Netherlands: Wolf Legal Publishers, 2014.
• Saul, Ben. Indigenous Peoples and Human Rights: International and Regional Jurisprudence. Oxford, UK: Hart Publishing, 2016.
• Warren, D. Michael, L. Jan Slikkerveer, and David Brokensha, eds. The Cultural Dimension of Development: Indigenous Knowledge Systems. London: Intermediate Technology Publications, 1999.
• Watson, Irene. Aboriginal Peoples, Colonialism and International Law: Raw Law. New York: Routledge, 2015.
• Young, Stephen. Indigenous Peoples, Consent and Rights: Troubling Subjects. New York: Routledge, 2020.

The above is also available for viewing or download here.

Introducing the concept of rasa in Indian aesthetics and philosophy of art

                                                                          
   

[I should  note that while my interest in Indian philosophy of art was first awakened upon learning about rasa (a port of entry, as it were), there is much more to Indian/Indic philosophy of art and aesthetics than this concept.]

rasa: taste; flavor, savor; nectar of delight; aesthetic emotion; a central concept in Indian or Sanskrit aesthetics. The earliest systematic treatment of this concept is found in Bharata’s Nātyaśastra (2^nd century BCE), the oldest surviving treatise on music and dance. The properly aesthetic portions of the treatise, however, were added several centuries later. Rasa characterizes the audience’s affective response to the drama. It is dependent upon situationally particular personal emotional experience or bhāva (here, ‘basic’ and durable emotions as well as transitory and ‘accessory’ emotional states, with a focus on the significance of the former). Thus the love I feel for my spouse is in some sense the basis of, but not identical to, the ‘love’ I sense when viewing a dramatic performance of Romeo falling for Juliet (in keeping with the fact that in the time of Bharata the theater-going rasika was the prototype of the aesthete).

In contrast to a direct emotional experience or state, aesthetic rasa is more contemplative and vicarious, a ‘fictive’ emotional state that is shared and universal, all features that contribute to making its experience delightful or enjoyable. According to Bharata, rasa is the product of three objective, interacting elements (i.e., they are its ‘efficient’ cause): 1) vibhāva, the understanding that makes ‘representations’ (words, gestures, and internal feelings) capable of being sensed, or the indicative signs of the emotions; 2) anubhāva, the actual sensing of these elements as evidenced in their physiological effects or manifestations, most of which are immediate and involuntary; and 3) vyabhicāribhāva, subsidiary emotional elements or feelings that reinforce one’s experience. These objective factors combine with a subjective factor (the ‘material’ cause) to arouse rasa. The subjective factor is the essence of the (basic) emotion(s) at the heart of a work of art that is at the same time latent in the spectator (sahrdaya) the qualified appreciator or aesthete) as a powerful disposition(s) or impression(s) (cf. samskāra). A play, for instance, heightens, celebrates and crystallizes the truths of emotional experience through idealized representations or embodiments of generalized types in a way that effaces the distance between what is witnessed in the performance and the spectator’s own life. This effacement of distance (spatial, temporal, psychological, etc.) allows the spectator to ‘objectify’ what is otherwise subjectively experienced (one reason we can speak of ‘losing ourselves’ in a book, play or piece of music). It is this process of ‘objectification’ that raises an emotional tone to the status of a ‘delectation, that is, an enjoyable or delightful experience more contemplative and ‘distanced’—hence more objective—than our direct (and egocentric) emotional experiences. Ideally speaking, the emotions treated in, say, a poem, are not the private feelings of the poet nor are they dominated by the emotional projections of the reader’s own mental states, rather they objectively abide in the poem as its cognitive content (rasa objectified). As the great Kashmiri Śaiva philosopher Abhinavagupta (c. 950-1015) noted, it is the poem’s cognitive content that 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; compare, for example, Advaita Vedānta philosophy of mind and metaphysics, wherein 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).                                                                    

       

Rasa theory claims there are eight—and 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). In Sanskrit poetic criticism, the Rasa school was one of four major schools: the ‘Figurationists,’ the Rīti or ‘Stylists,’ and the Dhvani (‘suggestion’). The rasa aesthetic was soon applied beyond the literary arts (of drama and poetry) to music and dance, the fine arts in general, and later the plastic arts as well (e.g. temple construction).

Suggested Reading

• Deutsch, Eliot. Studies in Comparative Aesthetics. Honolulu, HI: University of Hawaii Press, 1975.
• Bilimoria, Purushottama and Aleksandra Wenta, eds. Emotions in Indian Thought-Systems. New Delhi: Routledge, 2015.
• Chakrabarti, Arindam, ed. The Bloomsbury Research Handbook of Indian Aesthetics and the Philosophy of Art. New York: Bloomsbury Academic, 2016.
• Chari, V.K. Sanskrit Criticism. Honolulu, HI: University of Hawaii Press, 1990.
• Masson, J.L. and M.V. Patwardhan. Śāntarasa and Abhinavagupta’s Philosophy of Aesthetics. Poona: Bhandarkar Oriental Research Institute, 1969.*
• Masson, J.L. and M.V. Patwardhan. Aesthetic Rapture: the Rasādhyāya of the Nātyaśāstra. Poona: Deccan College Postgraduate and Research Institute, 1970.
• Pollock, Sheldon, trans. and ed. A Rasa Reader: Classical Indian Aesthetics. New York: Columbia University Press, 2016.
• Schwartz, Susan L. Rasa: Performing the Divine in India. New York: Columbia University Press, 2004.

* Some intellectual trivia: One of the authors here is Jeffrey Moussaieff Masson (b. March 28, 1941 as Jeffrey Lloyd Masson), perhaps now better known for his controversial and somewhat perfervid (and I believe mistaken) views on Freud’s putative “abandonment” of his seduction theory. His early work, such as the two titles here, reflects his background in Sanskrit and Indian Studies. Masson, like yours truly, happens to be a vegan, and has co-written a book with Susan McCarthy that should interest anyone who cares about our relations with our nonhuman animal kin: When Elephants Weep: The Emotional Lives of Animals (Delta, 1995). He’s since published a number of books about animals. I rather belatedly came to the realization that Masson’s intellectual pursuits and passions roughly coincide with some of mine: Indic philosophy, psychoanalytic theory, and animal ethics and rights, although of course I am nowhere close to the scholar and writer Masson is!

See too this podcast: https://aestheticsforbirds.com/2017/05/23/indian-aesthetics-rasa-theory/

       

Toward an understanding of ritual(s) commencing with the Confucian conception of li

   

… [T]he work accomplished through ritualization is very inadequately grasped by the notion of social control. Ritualization is not a matter of transmitting shared beliefs, instilling a dominant ideology as an internal subjectivity, or even providing participants with the concepts to think with. The particular construction and interplay of power relations effected by ritualization defines, empowers, and constrains. Ritualized practices, of necessity, require the external consent of participants while simultaneously tolerating a fair degree of internal resistance. As such they do not function as an instrument of heavy-handed social control. Ritual symbols and meanings are too indeterminate and their schemes too flexible to lend themselves to any simple process of instilling fixed ideas. Indeed, in terms of its scope, dependence, and legitimation, the type of authority formulated by ritualization tends to make ritual activities effective in grounding and displaying a sense of community without overriding the autonomy of individuals or subgroups. [….] Ritualization will not work as social control if it is perceived as not amenable to some degree of individual appropriation. — Catherine Bell

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… [F]rom the beginning, governing by the rites, as opposed to the ‘two handles’ of punishments and rewards, was identified as the distinctively Confucian Way [Dao] to rule. In the Analects, for example, Confucius asserts the self-evident superiority of rule by ritual: ‘If it is really possible to govern countries by ritual and yielding, no more need be said,’ since ‘love for other humans’ constitutes ‘the greatest part’ of good government. For several reasons, Confucius and his early followers believed ritual rule would not only assure subjects of a just and benevolent reign, but also prove a boon to the ruler, who would find it the most effective way to govern. Training in ritual, after all, habituated persons to strict order and hierarchy while providing periodic indulgences and spectacles that gave people welcome release from their daily drudgery. At the same time, it served to preclude or regulate unhealthy and unrealizable desires, making the expression of human feelings both refined and satisfying. Finally, the aesthetic coherence of individual rites made them deeply pleasurable to participants and audiences alike, which tended to reinforce the desire to behave well. By contrast, the penal code hardly guaranteed better conduct. Written laws, which did nothing to reform the person from within, would more likely spur men to look for legal loopholes or to turn litigious. Rites worked to instill morality, in other words, while penal law could only define the illegal, notify people that crimes are to be avoided and punish crimes after the fact. For Confucius, then, rule by ritual is manifestly better than rule by law, not only because it is inherently more humane, but also because it is more effective. Whereas rule by law at best can only deter crime, rule by ritual can preempt the impulse to crime by fostering in humans, through symbolic systems, the desire to create and enhance community, and so teach humans to satisfy their basic needs without hurting others.

Second, if ritual is a tool for perfecting the self and harmonizing society, the performance aspect of the rites rendered this tool particularly effective. Correct performance of the rites, after all, required the complex coordination of gesture, facial expression, and verbal formulae, an integration that in turn required thorough attunement to the ideas embodied in the rites. [….] But ritual accomplished more than the absolute integration of mental and physical activities designed to give visible form to the virtues. Always the assumption was that the sheer artistry of the ritual performance, displaying an imposing, yet graceful nobility of spirit than had become virtually second nature, made ritual a powerful educator of all who witnessed it.

Third, the rites confront, address, and appear to explain many troubling aspects of human existence. It is hardly coincidental that the most important rites mark crucial transitions—birth, puberty, marriage, and death—for rites are designed to help participants and onlookers embrace change rather than resist it. [….] Preparation for the rites (fasting, purification, lustration, meditation) begins the process … by interpreting the normal, numbing routines of daily life, the better to induce in participants a deep receptivity to change. — Michael Nylan

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Nylan here notes some of the apparent contradictions or paradoxes at the heart of Confucian learning and self-cultivation:

(1) that the full development of each person’s singular nature depends, at least initially, upon strict adherence to that seemingly most conformist of activities, ritual, which stresses relatedness rather than uniqueness; (2) that the realization of one’s human potential through the distinctively human institution of ritual results in the acquisition of a second nature that is godlike (shen) in its transformative powers; (3) that the Confucian emphasis on the ritual expression of integrity (cheng) pulls the person outward and inward, as the salutary union with Heaven-and-Earth corresponds to the same ability to unify one’s thoughts and deeds; and (4) that the true sage in ritual activity engages simultaneously in miraculous ‘creation’ (zuo) and faithful ‘transmission’ (shu) through ritual, the only tool or system capable of merging the aesthetic with the instrumental. — Michael Nylan

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The following is a brief introduction to the notion of li as found in the Analects of Confucius. To put this material into a wider and (one hopes) deeper Chinese historical and sociological (or anthropological) context with a corresponding requisite appreciation of philosophical, psychological, and moral (here intended to embrace the ‘ethical’ as well) dimensions of same, I recommend Michael Nylan’s book, The Five “Confucian” Classics (Yale University Press, 2001), in particular, the Introduction and the chapters on “The Odes” and “The Three Rites Canons.” I am, perhaps mistakenly, convinced that any philosophical and social scientific accounting and explanation of ritual should accord pride of place to the notion of li in Confucian traditions and the history of China. After a thorough examination of li, a study of Vedic ritual (and its ‘defense’ in Pūrva Mīmāmsā, Prior Exegesis [or Inquiry, or Investigation] School, also known as Dharma Mīmāmsā) is in order. A thorough exploration of these two civilizational traditions of ritual completed, as it were, one is ready to embark on cross-cultural studies of ritual from vantage points provided by the social sciences (with an anthropological bias). I have appended two reading lists: the first is on “Confucianism,” and the second is an all-too-brief guide “on ritual(s),” from which I recommend especially the work of Catherine Bell as well as the edited volume by Kevin Schilbrack.

   

li: ritual, rites, etiquette, customs, conventions, social norms, propriety. An early instance of li is in reference to a bronze cauldron used in sacred ceremonies. Later it refers to holy rituals, such as sacrifices to the ancestors or divination practices. Confucius widens and deepens the meaning of li (reflecting knowledge of the ‘Five Classics’) to apply to social norms, conventions, etiquette, rituals, gestures, in short, to the myriad forms of scripted or patterned behavior performed on a routine basis in daily life that are ultimately sanctioned by tian (somewhat misleadingly translated as ‘heaven’) and reflect the proper ways (daos) of living exemplified by one’s cultural ancestors or ancient sage-kings. In the word of Ames and Rosemont, ‘Li are those meaning invested roles, relationships, and institutions which facilitate communication, and which foster a sense of community [and thus common good]. The compass is broad: all formal conduct, from table manners to patterns of greeting and leave-taking…from gestures of deference to ancestral sacrifices, all of these, and more, are li.’ An animating assumption here is that social behavior should be choreographed according to divine or sacred archetypes (e.g., tian) or models as practiced by the Sages of the past and exemplified by the junzi. Generally speaking, li is the proper or right way to do things, given a proper consideration of tradition, by the right kind of person. Everyday social interaction can be suffused with a holiness or sacredness that comes with the actualization of dao provided it is correctly—harmoniously and spontaneously—performed by individuals possessed of ren (‘humaneness,’ ‘goodness,’ ‘authoritative’—because virtuous—conduct’). This results in human behavior being in accord with the rhythms and patterns of tian, with its sacred cosmological and natural processes (or daos). Li performed by individuals lacking in the requisite amount of ren is akin to mindless habit, it is lifeless, mechanical, meaningless, awkward, self-conscious or egocentric and profane. Li bereft of ren and dao, accounts for the fetters or shackles of tradition, for the veneration of tradition for tradition’s sake, for the uncritical appropriation of and thus irrational deference to tradition. More specifically, processes of reification or ossification will infiltrate li performed by individuals not sincerely committed to self-cultivation, hindering the truly personal and creative appropriation of tradition. Li amounts to a social grammar learned through (1) socialization and acculturation (beginning with the family), (2) the emulation of the right kind of persons (e.g., the junzi and the Sage), and (3) and the informal and formal appropriation of the material found in the ‘Five Classics’ (Odes, Documents, Rites, Changes, and the Spring and Autumn Annals). The junzi critically and creatively appropriates the li of tradition assessed in the light of ren, a process that entails making the tradition one’s own. Because of the integral relation between li and ren, it seems one might speak here of the moralization of human behavior with Confucius, in other words, the scope of ‘the ethical’ is not confined to infrequent or special situations or acts but refers in some sense to the entirety of one’s conduct, insofar as all of one’s behavior is capable, in degree, of influencing, shaping, or contributing to an ethical disposition, to ethical character. Ames and Rosemont well appreciate the uniqueness of this view: ‘For Westerners, there is ostensibly a distinction to be made between being boorish and being immoral. For Confucius, however, there are simply varying degrees of inappropriate, demeaning, and hurtful behavior along a continuum on which a failure in personal responsiveness is not just bad manners, but fully a lapse in moral responsibility.’ The writer and philosopher Iris Murdoch perhaps comes closest to the Confucian perspective on the scope of ethics, one with a central affective and moral psychological orientation. Murdoch believed that all our states of consciousness and action presuppose cognitive and affective discrimination and that any such discrimination is subject to moral appraisal, as evidenced here in a passage from her book, Metaphysics as a Guide to Morals (1992):

“The moral life is not intermittent or specialised, it is not a peculiar separate area of our existence. [….] Life is made up of details. We compartmentalise it for reasons of convenience, dividing the aesthetic from the moral, the public from the private, work from pleasure. [….] Yet we are all always deploying and directing our energy, refining or blunting it, purifying or corrupting it, and it is always easier to do a thing a second time. ‘Sensibility’ is a word which may be in place here. Aesthetic insight connects with moral insight, respect for things connects with respect for persons. (Education.) Happenings in the consciousness so vague as to be almost non-existent can have moral ‘colour.’ All sorts of momentary sensibilities to other people, too shadowy to come under the heading of manners of communication, are still parts of moral activity. (‘But are you saying that every single second has a moral tag?’ Yes, roughly.) [….] [M]uch of our self-awareness is other-awareness, and in this area we exercise ourselves as moral beings in our use of many various skills as we direct our modes of attention.”

Li thus has everything to do with what Murdoch refers to here as the proper directing of our modes of attention. Finally, Michael Nylan has nicely explained the egalitarian quality in the Confucian conception of li as enshrined in the three Rites canons:

“they promote a kind of egalitarianism in three senses: they assume that everyone can be perfected [perhaps a better was of stating this is that, in principle, all of us are ‘perfectible,’ which by definition rules out arriving at a state of ‘perfection’]; they stipulate that a code of manners, aristocratic in origin, be learned by and applied to all humans; they advocate the assignment of social rank according to virtue and merit, defining both in terms of relative contributions to the larger society; and they aim to school each person, through theory and praxis, in the very social skills that facilitate effective interaction. Accordingly, it should come as no surprise that non-elites in early, medieval, and late imperial China were at times more eager than social and political elites to embrace the precepts set forth in the Rites canons.”