Tuesday, February 28, 2006

Is Rahmatullah Hashemi a terrorist? Was Carl Schmitt a nazi?

It has been suggested by various folks who need not be named that incoming Yale Community College student Rahmatullah Hashemi is a terrorist. I have not read either the NYT article or the WSJ overview mentioned below by YLS '08; I probably won't, to be honest. But a terrorist at YCC? That seems unsafe for the Associate Degree seekers.

I think it might be illustrative to consider examples from history to see how far we're willing to allow apologists and ambassadors to take on or escape the taint of the regimes they serve. (I consider the Taliban to be a terrorist organization, in the sense that a group nurtured by them engaged in terrorism; the fact that the Taliban would have preferred things not to get quite so out of hand does not tug my heartstrings.) One example might be Saddam Hussein's ambassador to the UN,
Mohammed Al-Douri.

Perhaps a more interesting case is Carl Schmitt, a brilliant academic theoretician of political science who attacked liberal politics as naively having faith in discourse when real power is determined behind the scenes, and who established the "state of emergency" theory of government power which Agamben would later take up. Unfortunately, he was, as a professor at YCC said recently, a roaring Nazi. His defenses of the state, executive dictatorship as its proper archetype, and the supposed "suspension" of the Weimar constitution were influential in sustaining the National Socialists' facade of legitimacy. What responsibility does he bear for the Nazi atrocities?

We don't need to speculate about his own views: we have interviews. Below the fold are some transcripts of Schmitt's interrogations at Nuremberg. There are three days of interviews; the transcripts are taken from Long Sunday. I put these out to see if any of Mr. Hashemi's statements in defense of the Taliban are of the same nature as Schmitt's defenses of the Nazis. Thus, I offer only a conditional and analogical answer to the post-title's question. If you believe from the transcripts that Schmitt was a Nazi, and that members bear some responsibility for their group's atrocities, and you believe that Hashemi and Schmitt stand in the same relation to the regimes they served, then you should believe that Hashemi was a terrorist. If you don't affirm the two antecedents and the analogy, the picture is more complicated. Furthermore, what impact would any of the answers you gave have on your complicity in a democratically elected regime's misdeeds?

I should state that, absent my hearing any information which profoundly and directly indicts the man as intimately complicit in war crimes, I would disapprove of using his history as a disqualifier to his admission to Yale Community College. The philosophical reason is this document; the practical reason is that I do not trust Dean Koh with this power farther than I can throw him.

In any event, please comment away.

Kempner: You do not have to testify, Professor Schmitt, if you do not want to, and if you think you are incriminating yourself. But if you do testify, then I would be grateful if you would be absolutely truthful, would neither conceal nor add anything. Is that your wish?
Schmitt: Yes, of course.
K: And if I come to something you might find self-incriminating, you can simply say you prefer to remain silent.
S: I have already been interrogated by the C.I.C. [U.S. Army counter-intelligence] and in the camp. I would be glad to tell you all I know. However, I would like to know what I am being blamed with. All previous interrogations ultimately ended in academic discussions.
K: I do not know why anyone else has questioned you. I will tell you quite candidly what I am interested in: your participation, direct and indirect, in the planning of wars of aggression, of war crimes and of crimes against humanity.
S: Planning wars of aggression is a new and very broad concept.
K: I take it for granted that, as a professor of public law, you know exactly what a war of aggression is. Do you agree with me on the fact that Poland, Norway, France, Russian, Denmark, Holland were invaded? Yes or no?
S: Of course.
K: Did you not provide the ideological foundation for those kinds of things?
S: No.
K: Could your writings be so interpreted?
S: I do not think so - not by anyone who has read them.
K: Did you seek to achieve a new international legal order in accordance with Hitlerian ideas?
S: Not in accordance with Hitlerian ideas and not sought to achieve but diagnosed.
K: What is your attitude toward the Jewish Question, in general, and how it was handled by the Third Reich?
S: It was a great misfortune and, indeed, from the very beginning.
K: Did you consider the influence of your Jewish colleagues, who were teachers of international law, a misfortune?
S: With the exception of Erich Kaufmann, there were no Jewish legal scholars there [in Nazi Germany]. He was a belligerent militarist. He originally coined the phrase "The social ideal is the victorious war," in "Die Clausula rebus sic stantibus."
K: Now, however, Erich Kaufmann is not here, but you are.
S: I do not want to incriminate him. I also would not like to create the impression of incriminating this man.
K: Would you say there was a definite discussion between international and constitutional law influenced by Jews and that which you taught and advocated?
S: The standpoint of Jewish colleagues was not sufficiently homogeneous for that.
K: Have you ever written such things?
S: I wrote only once that Jewish theorists have no understanding of this territorial theory.
K: Where did you write that?
S: In a little essay in the Zeitschrift fur Raum-Forschung, 1940-41.
K: What was that essay called?
S: I cannot recollect the title.
K: Who published the journal?
S: The Reich Office for Raum Research.
K: How long is the essay?
S: Volkerrechtliche Grossramordnung had 50 large octavo pages.
K: How many editions?
S: I believe 5 or 6. The essay was reprinted there from the Zeitschrift fur deutsche Raumforschung, published by Deutscher Rechtsverlag, a press of the National Socialist League of Jurists.
K: It had a swastika on its publisher's insignia?
S: Yes, of course.
K: Reading your writings creates a completely different impression from the one you are now providing.
S: If one reads them completely, they have very little to do with the Jewish Question.
K: You admit, however, that it [Volkerrechtliche Grossramordnung] is clearly an international legal theory of Lebensraum?
S: I call it Grossraum.
K: Hitler was also for Grossraum.
S: All of them were probably for it, including the citizens of other countries.
K: A reading of this essay shows it was written in the purest Hitler syle.
S: No. I am proud of the fact that since 1936 I had nothing to do with that.
K: Previously, therefore, you wrote in the Hitlerian style.
S: No, I did not say that. Until 1936 I considered it possible to give meaning to these catchwords.
K: You assumed the editorship of various journals, which previously you had not. Die deutsche Juristenzeitung, for example?
S: From 1934 to 1936.
K: Would it not have been better to have avoided becoming involved with that?
S: Yes, now one can say that.
K: The accused is confronted with his publication Volkerrechtliche Grossramordnung, 4th Edition, and the following passage from page 63 is read to him: "The Jewish authors had, of course, as little to do with the previous development of Raum theory as they had with the creation of anything else. They were also here an important cause of the dissolution of concretely-determined territorial orders." Do you deny that this passage is in the purest Goebbels-style? Yes or no?
S: I do deny that the content and form of that is in Goebbels' style. I would like to emphasize that the serious scholarly context of that passage should be taken into consideration. In its intent, method, and formulation it is a pure diagnosis.
K: Do you want to say anything else?
S: I am here as what? As a defendent?
K: That remains to be determined.
S: Everything I stated, in particular this passage, was intended as scholarship, as a scholarly thesis I would defend before any scholarly body in the world.
K: Here, however, we are before a criminal court. You were the directing, one of the leading jurists of the Third Reich.
S: Someone who in 1936 was publicly defamed in Das Schwarze Korps [the S.S. journal] cannot be described in that fashion.
K: How does your interpretation fit with the fact that, after 1936, you delivered lectures financed by the Nazi Reich in Budapest, Bucharest, Salamanca and Barcelona; in the notorious espionage and propaganda institute, "The German Instiute in Paris," and other places. Did you deliver lectures? Yes or no?
S: Yes, I did deliver lectures. They were not paid for.
K: Who paid for the trip?
S: Part [was paid] by the inviting societies, part by German agencies.
K: Therefore: the Nazi Reich.
S: That was a forum for me; I had no other.
K: You see that there is in this fact of your defamation, on the one hand, and your lectures, on the other, a certain contradiction very difficult for me to comprehend.
S: If you are interested in an explanation, I would be pleased to give you one. This is the first conversation I have had about it since 1933. I would like to discuss that.
K: It is related to what extent you provided the scholarly foundation for war crimes, crimes against humanity, the forceful expansion and widening of Grossraum. We are of the opinion that the executing agencies in the administration, the economy and the military are not more important than the men who conceived the theory and the plans for the entire affair. Maybe you would like to write down what you have to say. To what extent did you provide the theoretical foundation for Hitlerian Grossraum policy?
S: I will write it down. This is thus the question to be answered.

K: Were you so kind to write your answers?
S: It took a long time, because I was given a table so late. May I give it to you?
K: I must, of course, read through this later. Who invited you to the German Institute in Paris?
S: The director, Dr. Epting, on the suggestion of certain gentlemen whom he knew. The lecture was a pretext for the trip. I was accompanied by Pierre Linn, a Jewish friend and his wife.
K: I am interested in the German Institute.
S: I had very little to do with that. The director was Epting. The motivating force behind my invitation was Dr. Bremer. He had many friends, including Frenchmen such as Alfred Fabre-Luce.
K: Would you be so good as to sign the pages with your initials C.S.? Are all the facts correct? Then please write: The truth of the above statements is pledged on my word of honor.
S: Yes. May I ask something else?
K: What questions do you still have?
S: You wanted to lend me Volkerrechtliche Grossramordnung.
K: You still have not received it?
S: No, I still have no answer from my wife. May I request that my wife send me the manuscript of the lecture on the "Lage der europaischen Rechtswissenschaft"? The manuscript is still with the publisher. The lecture was basically intended for a Fetschrift for Popitz. I have not said anything that is not contained in the manuscript. That provides perhaps the best account of the remarks I made in Bucharest, Budapest, Madrid, Barcelona Coimbra.
K: Have you now been able to reconcile yourself in any way to the role you played in the Third Reich and in the preparation of criminal offenses, as I interpret them?
S: Here we are not really disputing facts. I accept them. It is a question of interpretation and legal evaluation. As a long-standing professor of jurisprudence, I cannot stop thinking.
K: Nor should you. To clarify again what the theory of the public prosecutor is: Did you participate in the preparation, etc. of wars of aggression and in other punishable offenses related to these at the point of decision-making? What is your answer to that? Could you state it concisely in a single sentence?
S: I neither served in a decision-making capacity, nor did I participate in the preparation of wars of aggression.
K: Our theory about the term "point of decision-making" is as follows: is not one of the leading university professors in this field as least as important in the decision-making-process as other high state or party officials?
S: Also in a totalitarian state?
K: Yes, particularly in a totalitarian system. And furthermore: what we understand by wars of aggression is very clearly expressed in the decision of the IMT [International Military Tribunal in Nuremberg], with which you are familiar.
S: Yes, it would be good if I could have the complete text. I have no material at all. I have one final question, which is not connected with the preceding. You mentioned the name Radbruch. I hardly know him. If you want to inquire about my activity as a professor during the last 10 years, I would request that you question colleagues who really have known me.
K: Who, for example?
S: Carl Brinkmann. He was in Berlin until 1944 and is now in Erlangen.
K: I will be glad to question him. Was he a party member?
S: No, otherwise he would not now be a professor in Erlangen. I do not believe he was a party member. It may not be pleasant for him to do that. The Dr. Carl Schmitt myth is pure myth. Carl Schmitt is quite a peculiar individual, not just a professor; he is also a composite of various other individuals. I observed this when I was interrogated by Dr. Flechtheim. You can inquire about that.
K: I have my sources.
S: Radbruch is a politician. He sees things in a particular way and does not understand that a person can sit quietly at a desk.
K: Did Rousseau leave his desk?
S: No.
K: Who else did not leave his desk?
S: Thomas Hobbes.
K: It is very difficult to render a criminal judgment.
S: May I speak frankly? I have no been in solitary confinement for 3 weeks...
K: You do not want to be alone?
S: I would like to be even more alone. All possible questions were asked of me at the time I was placed under arrest. I said then only: I would like to be able to speak about my case from my own perspective. I desire only to clarify things to myself. But my name, my physiognomy is too famous for me to be left alone. I had hundreds of students in all countries, thousands of listeners.
K: To the extent that it relates to audience, your reputation vacillates in history.
S: That will always be the case when someone takes a position in such situations. I am an intellectual adventurer.
K: You have the blood of an intellectual adventurer?
S: Yes, that is how thoughts and knowledge develop. I assume the risk. I have always accepted the consequences of my actions. I have never tried to avoid paying my bills.
K: If, however, what you call the pursuit of knowledge results in the murder of millions of people?
S: Christianity also resulted in the murder of millions of people. One does not know unless one has experienced it oneself. I by no means feel, as do many others, an innocent victim to whom something horrible has happened.
K: But this is no comparison. And is it not, simply stated, a criminal investigation of your personal make-up?
S: I can tell you a great deal about that. If I were asked, I would be glad to express my honest opinion.
K: I would like to ask you something without touching on your own matters. Let us for a moment consider a case from another area. You are familiar with Mr. Lammers and, as a constitutional lawyer, his position. You know what a Reich Minister is?
S: Personally, I have only seen him once, in 1936. He was Chief of the Reich Chancellery, where everything was concentrated.
K: How do you explain psychologically that a man like Lammers, as an old professional civil servant, signed hundreds of horrible things?
S: I do not understand that. I have not done that.
K: That does not relate to you, you avoided such things? How do you explain that a diplomat like von Weizsacker, as a state secretary, signed hundreds of such things?
S: I would like to give you a nice answer. The question has great significance, a distinguished man like von Weizsacker... Only I must protect myself...
K: This theme could get us into constitutional matters. At present, I am not questioning you about Lammers personally, but about the position of Chief of the Reich Chancellery in a totalitarian state. I am asking you neither as a defendent nor as someone accused or as a witness, but as a constitutional lawyer. I am asking you here purely as an expert, why this position is more important than that of another Reich Minister?
S: Perhaps Bormann was more important.
K: That is not completely correct. The position of Bormann first became important in 41-42.
S: I would like to formulate this for you as best as possible in writing.
K: In the Bismarckian Reich I would have stated: Lammers had the key to lawmaking in his hand. In the dictatorship he had more in his hand: the handle to the door of the dictator. Does this explain the significance of his position?
S: Yes.
K: Write that up in a small essay.

K: How are your Professor Schmitt? Have you written something?
S: Yes. I have brought along both written elaborations and have signed them. I no longer recall the exact wording of your question: "Did you participate in the preparation of wars of aggression, etc."
K: Do you pledge the accuracy of your statements on your word of honor?
S: On my word of honor I pledge the accuracy of the statements from pages 1-17. That is a written elaboration, a legal opinion.
K: Please write at the end of your elaboration: I pledge that I have given the above legal opinion according to the best of my knowledge and conscience.
S: Yes. The legal opinion is on pages 1-15.
K: I will examine this very closely.
S: I am happy to have found a reader once again. In general, my writings have been read very poorly. I fear the superficial reader.
K: I will read through it not only form the standpoint of criminal law, but also from the standpoint of constitutional law.
S: I have written it with great interest. Can it be indicated that I did not do that on my own initiative?
K: Professor Carl Schmitt made the assessment of the constitutional position of the Reich minister and chief of the Reich chancellery at the instigation of the interrogator. Are you afraid of doing that on your own initiative?
S: Not that. Maybe it is improper in my circumstances.
K: Prof. Carl Schmitt submits, in addition, his own comments on the subject of participating in wars of aggression. Were you a member of the SS?
S: No.
K: To what extent did you participate in the ideological preparation of SS ideology?
S: Not at all. I was an opponent of the SS. [Bendersky notes that the feeling was mutual for the SS.] I was publicly assaulted and defamed in Das Schwarze Korps.
K: Do you know Gottlob Berger?
S: I have never seen him.
K: Were you not the idol of SS professors such as Boehm, etc.?
S: When a state concillor in a totalitarian system is publicly spat at by the Schwarze Korps, that cannot be said.
K: After you were spat at, did you not travel to Salamanca, Paris, Madrid, etc.?
S: That occrred in 1943 on special invitation from the faculties.
K: You had nothing to do with the SS?
S: I was strongly opposed to it. I was secretly observed and controlled by the SS.
K: Did you state that German legislation and the German administration of justice must be carried out in the spirit of National Socialism? Yes or no? Did you state that between 1933 and 1936?
S: Yes. I was from 1935 to 1936 head of the professional organization. I felt superior at that time. I wanted to give the term National Socialism my own meaning.
K: Hitler had a National Socialism and you had a National Socialism.
S: I felt superior.
K: You felt superior to Adolf Hitler?
S: Intellectually, of course. He was to me so uninteresting that I do not want to talk about that at all.
K: When did you renounce the devil?
S: 1936.
K: Are you not ashamed to have written these kinds of things at that time, such as, for example, that the administration of justice should be National Socialist.
S: I wrote that in 1933.
K: Do you deserve good or poor grades for that?
S: It was a thesis. The National Socialist League of German Jurists extracted it, so to speak, from my mouth. At that time there was a dictatorship with which I was not yet familiar.
K: You were not familiar with any dictatorship.
S: No. This total dictatorship was actually something new. Hitler's method was new. There was only one parallel, Lenin's Bolshevik dictatorship.
K: Was that something new?
S: Yes, certainly.
K: In your own library you have writings about totalitarian dictatorship.
S: Not totalitarian.
K: Are you not ashamed that you wrote these kinds of things at that time?
S: Today, of course. I do not consider it appropriate to continue to rummage around in the disgrace we suffered at that time.
K: I do not want to rummage around.
S: Without question, it was unspeakable. There are no words to describe it.
K: I consider it better if we converse about such matters outside, not here in custody.
S: That would be agreeable to me for reasons of health. I also consider it better in the interest of the case. This professional opinion suffers from this situation.
K: I want to see that you return home.
S: My wife gave up the apartment in Berlin. We have no other lodging that with my sisters in Westphalia. Could you see that I go there and not automatically be sent to Berlin?
K: That will be taken care of today.
S: I would appreciate it.

Monday, February 27, 2006

Danish cartoons, and the "religious right" vs. the "Christian right"

Great post by Garnett (yet again) over at Mirror of Justice. He discusses Beinart's article in the New Republic on the Danish cartoons, and praises the universalistic tendencies of Bush: recall how in late 2003 he claimed that Muslims and Christians worship the same God? That "conservative ecumenism" is what leads to the possibility of empathy, and thus communication:
Now, in the wake of the cartoon saga, the election of Hamas and the ongoing trauma in Iraq, that universalism is being challenged, and the older, more pessimistic conservatism is resurfacing. And that's a very bad thing. No matter what you think of the religious right's domestic agenda, the United States is much better off with a religious right than with a Christian right or a Judeo-Christian right. When conservative American Christians lose their ability to identify with conservative Muslims--to imagine their faith as in some basic way the same and deserving of the same basic respect--the United States will find itself less able to speak to the Muslim world, and less able to listen to it. It will find itself, in other words, in the place Europe is now. And that's a place no American should want to be.
Click on "Read comments..." for more. Good discussion; I could use a bit of explication of the Dignitatus Humanae reference, an encyclical that starts easy and gets notoriously hard. Also interesting: I think I've figured out what Mirror of Justice refers to. An author--I've lost the cite--calls Mary "Our Lady, the pure Mirror of Justice and Cause of our Joy, whose Fiat to the will of the Father is the Catholic’s only model for both personal and political life." I suspect "cause" might be a bit theologically inaccurate here, unless it's used in some technical sense I'm unaware of.

Sunday, February 26, 2006

Do we live under law, or do we possess rights?

The main tool in the modern Western legal world's toolkit is the right, which is a quasi-possession of the human. Locke and Kant were the most original developers of this theory in books, and the Americans set it in motion in politics. It has spread throughout the world.

But it aint necessarily so. Before natural rights was natural law. This is not just a matter of semantics. While one can express many ideas using either type of language--"I have a natural right not to be murdered" vs. "it is against natural law to murder"--they reflect very different worldviews.
  • In natural rights, the subject takes precedence; in natural law, the object is primary.
  • In natural rights, one may assert the right; in natural law, I am under the law.
  • In natural rights the actor is an autonomous agent with a tool he can use for his freedom, usually even alienating the right (Locke had to develop the idea of inalienability to protect his three basic rights); in natural law the actor is a participant in a larger order into which his autonomy must be joined to form a community.
These issues have been summarized often by the philosophical question: which is prior, the right or the good? Says Rawls in Political Liberalism:
We should not attempt to give form to our life by first looking at the good independently defined...For the self is prior to the ends which are affirmed by it...We should then reverse the relation between the right and the good proposed by teleological doctrines and view the right as prior.
Rawls's quintessential reason for this assertion of the self through its right to choose is to avoid metaphysical wars. The most obvious, and historically consequential, of these struggles were the religious civil wars of 16th and 17th century Europe which created the modern state. According to Jeffrey Stout, a modern historian of liberalism, the plethora of religions that sprung up in the wake of these wars produced appeals to incompatible metaphysical authorities--theories of the good--that could not be resolved rationally (or, to use Rawls's catchword, reasonably). The secularized state arose to keep peace between the warring factions.

This is what Rawls means when he says that liberal principles of justice should be
political and not metaphysical: they should be fundamentally pluralistic, avoiding any conception of the good, whether utilitarian, Marxist, Christian, or whatnot. Those particular philosophies then can find full expression inside of a tolerant liberalism.

But is liberalism truly neutral? I think not: in fact, Rawls has smuggled modern atomistic individualism into his premises just as cleverly as he did with his veil of ignorance argument.
Is the self prior to the ends that are affirmed by it?

If the self is the beginning, then rights and the right to choose are critical for autonomy and Rawls's lexically prior goods. But what if the
location of the self is fundamentally intertwined with its moral topography? What if identity must take place within a horizon of framework-definitions, without which we are disoriented--the more severe the lack, the more severe the pathology? One can rephrase this: Is autonomy a good for its own sake, or is autonomy only meaningful when used to pursue the good that is self-constituting?

There are two extremes in the relation between the self and the good. Nietzsche, always at one extreme of
some spectrum or other, here says that the self creates the good; Rawls would perhaps be surprised to discover his ancestors. Plato claims that the good life is the hegemonic dominance of reason over desire so as to acquire self-mastery and merge the self into the good. Aristotle's writings, always following the mean, have been interpreted by MacIntyre as involving a complex feedback of the self and the good in what MacIntyre has called the "quest." I find that this describes my life pretty well.

I'll try to summarize this. Who do we owe our ultimate loyalty to? To the state, or one's own understanding of the good? Let's say I am a Christian or a family-man or a Marxist. If I believe that God or my family or the proletariat
constitutes me in some sense, then I do not choose those goods as an autonomous self: I recognize them, and in doing so, recognize myself. In doing so, I live under the law. The self under that law can then go on to assert rights. But there can be no mistaking which is epistemically prior, the law or the right.

And what, then, of metaphysical wars? I'll tackle this sometime soon; but to start, I think the traditional story told by Stout is backwards. More later.

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Friday, February 24, 2006

Habermas: the new Hobbes? combat and controversy

There is a strange interpretation of Hobbes that he is in fact a natural law proponent. I think this fails eventually, but it's a good thought for a late night when you can't sleep. How can we combine Hobbes's subjectivism with a universal view of human goods?:
On subjectivist theories of the good, what makes it true that something is good is that it is desired, or liked, or in some way is the object of one's pro-attitudes, or would be the object of one's pro-attitudes in some suitable conditions. One might think that to affirm a subjectivist theory of the good is to reject natural law theory, given the immense variation in human desire. [And the critical metaphysical consequences of that.] But this is not so. For one might hold that human beings’ common nature, their similarity in physiological constitution, makes them such as to have some desires in common, and these desires may be so central to human aims and purposes that we can build important and correct precepts of rationality around them. This is in fact what Hobbes claims. For while on the Hobbesian view what is good is what is desired, Hobbes thinks that humans are similarly constructed so that for each human (when he or she is properly biologically functioning) his or her central aim is the avoidance of violent death. Thus Hobbes is able to build his entire natural law theory around a single good, the good of self-preservation, which is so important to human life that exceptionlessly binding precepts can be formulated with reference to its achievement.
The Enlightenment enclosure--from whose fold I expel Hobbes for reasons of decency--had a higher goal, and a more developed philosophical scaffold to reach it. Locke and Kant especially have linked autonomy and freedom to natural universal laws. But it is a truth often acknowledged that the Enlightenment project of justifying liberalism against relativism has failed--for the most convincing description of this see Alasdair MacIntyre's After Virtue. Critical Legal Studies folks are fond of discussing this too. Post-modernism, by critiquing the universalist pretentions of the Enlightenment, also torpedoes its emancipatory ideals: without universalism the danger of authoritarianism flares up, as Jürgen Habermas learned too well in his youth.

Habermas believes that we can be brought to agree as a community by the unforced force of discourse. This is because reason is universal, both as a capacity in man and in what it apprehends. This argumentation, with the intersubjectivity that implies, can take place even if God, or at least the metaphysics of morals, is dead. In attempting to convince, we engage in communicative action, criticizing reasons for holding positions, and thus we approach universal norms, despite the lack of any true ontological reality of these norms. Does this sound familiar?

Hobbes and Habermas both are concerned with the breakup of unifying narratives into localized traditions that can lead to violent conflict. Habermas believes the problem is authoritarianism; Hobbes believes that's the solution. But in both cases the radical freedom and equality of individuals in the human system is a prerequisite for the Hobbermasian theories: for Hobbes, freedom and equality mean anyone can kill anyone, and so all are vulnerable to swords and thus we must band together; for Habermas, freedom and equality mean anyone can convince anyone, so that all are vulnerable to rhetoric and thus we are bound together.

In both cases, solidarity-in-fact replaces solidarity-de-jure, and subjective contingency attempts to do the work of objective normativity. If you believe that God is dead, then Habermas is an incredibly attractive update of Hobbes. If you think God is on vacation, you might wonder whether the servant has power of attorney while the master is away.

Port security, national security, and economic security

James Lileks has an as-always effective post (two posts in reverse order) on the perceived threat to national security caused by UAE acquisition of an important port-security company.

I have been too busy to follow this much. But my sense is that cries of national security here usually are proxies for economic security worries. Exon-Flores is the statute allowing presidential review, without a judicial backstop, of foreign acquisitions that "threaten to impair national security," which is not defined. And the history of Exon-Flores has been one of mischief and misdirected fear. Most of the actions filed under Exon-Flores have been directed at countries not high on my scary-people list: the French, Germans, and Japanese. The French defense company Thomson's bids in the late '80s for missile business was a clear imbroglio, brought on by US defense conglomerates' lobbying. Senator Exon has suggested Exon-Flores could be used for social and environmental reasons, and Gephardt argued for applying Exon-Flores whenever American "competitiveness" was endangered, whatever that means.

The main problem is that these fears are usually ways of making economic nationalism respectable in a world in which mercantilism is mercifully out of fashion. This is an unfortunate gang-up because democrats have a short-sighted protectionist mindset they naively believe favors American workers, and republicans are similarly solicitous for American corporations, especially defense corporations. If you want a national industrial policy, government fingers in foreign direct investment is the way to go.

Bush's tough take on this seems to me a virtue.

Edward the Confessor, celibacy, and history

Our property casebook tells us that in 1066 Edward the Confessor, generally regarded as a legitimate saint in a field of kingly "saints-by-right," died. Since he was so saintly, he was celibate, and since he was celibate (sorry to explain this), he had no children. That meant a big fight, and William the Conqueror won.

Ever since studying Old English, taking Tolkien as a scholarly model-mentor (with his approach to life and his Sir Gawain and the Green Knight being a favorite of mine), trying to memorize passages of Beowulf, and reading Ivanhoe, I have had a hard heart towards the Normans. I believe that Alfred the Great provides a far better role model--aggressive saintliness, promotion of learning, diplomatic finesse, wild Christianity free from continental discipline--than a line of Franks, basically Germans without the competence, which produced John the Fool and couldn't make a space for Richard the Lionheart.

The fact that a king, so well regarded as holy and wise, could not understand the need to beget a son--in order to keep pure and safe from the bloody French what was surely one of the great and curious and heroic civilizations--makes me question his saintliness. A king has a higher responsbility than a pasty distaste for carnal knowledge. A whore, a whore, my kingdom for a whore. What would have become of the experiment of Alfred and the heirs to the Battle of Maldon had Edward indulged, and then confessed?

Monday, February 20, 2006

Self-defense, murder, and the doctrine of double effect

If you shoot someone in self-defense, do you have a responsibility (if it's safe) to then call an ambulance to help them out? This is an old question in ethics: it also pops up occasionally in the law; see, e.g., State ex rel. Kunst v Montana.

See this discussion of The Doctrine of Double Effect to see how some philosophers have tackled the issue.

Sunday, February 19, 2006

Dollarization: the view from the bottom in Ecuador

Interesting NY Times story on countries linking their currency to the dollar--or to the Euro, although it gives no examples of the latter. It notes that Ecuador is a good example of how this tends to help your economy a bit--6.6% growth last year, well above its neighbors--but I asked a lot of the people I met in Ecuador whether they were helped or hurt by trading in the sucre.

The results were about 100-0 that the dollar sucked. Not a single person supported dollarization. The country has gone from being a bargain to being considerably more expensive than its neighbors. This cuts down on tourism, and hurts those with fixed incomes. I like the idea of dollarization: it does seem likely that crappy money management really hurts the country's economy as a whole. But if switching currencies is so universally condemned by common folks who assert they suffer by it, who are the gainers? What policies can help fiscal responsibility without ending up hurting the poor? Sigh.

A primer on natural law

For those who just can't get enough, I suggest you pop open a bud and click on "Read..."

Natural Law

Natural law consists of two parts: first, ethical natural law, which
pulls out moral norms from facts about the world and about human
nature; second, legal natural law, which limits the discretion of
otherwise-legitimate lawmakers to not abridging the norms found in the
first part.

It is possible to try to avoid the second step, in which case you have
a sort of "incomplete" natural law: you might believe moral norms are
validly found from human nature, but then be a positivist, saying mere
social fact is both necessary and sufficient to give law its full

Both steps have questions to answer. How do we find moral norms from
human nature? There are two general views of this, both starting with
some idea of human flourishing and fulfilling the potentiality of
man's nature. The first method is derivationism--Aristotle and Aquinas
are usually taken to be examples. Derivationism holds that practical
judgments regarding the natural ends of human flourishing are not
self-evident, and need to be derived from theoretical proofs about
human nature. We know certain things about humans from speculative
reason. From these facts we can characterize what is good for humans
from an idea of the characteristic function. This uses analytical
truths to tightly link what "kind" of thing you are with what your
"good" is.

Inclinationism is the second method--most modern natural lawyers, like
John Finnis, Robert George, Germain Grisez, Mark Murphy, etc. (all
Catholic!:), think this is stronger. Inclinationism holds that the
basic forms of good can be adequately grasped by anyone who is of the
age of reason. So basic goods are per se nota (self-evident), and
since they are indemonstrable, one doesn't need a metaphysician to
demonstrate them. One becomes aware "by a simple act of
non-inferential understanding" that certain objects are goods to be
sought. (This is not exactly the same thing as intuitionism.)
Practical reason can grasp first principles, contra those who think
that all practical reason is about weighing means. One is inclined
towards something, and one then understands that the thing one seeks
is a specific example of a general good, such as knowledge.

The second step, legal natural law theory, brings up the most
important question: what happens if a law does not conform to the
norms previously found by moral natural law? Most natural lawyers say
some variation on the statement "an unjust law is no law at all."
Austin, of course, objected that tons of unjust laws are enforced qua
law by political bodies all the time. But this objection is useless:
given any theory of law, it is always possible to find some edict that
does not meet that theory's standards which is nevertheless enforced
by the courts as a law. (Unless you are a "pure positivist", someone
who believes strictly in Holmes's statement that law is what the
courts do.) There are two variations on the "no law at all"
formulation: either the law is simply invalid, as if Mickey Mouse had
said it, or the law is imperfect, lacking some of the force a law
normally has. Finnis, again, has the best account of this. A law which
is invalid provides a mere reason for action. A law which is valid
provides a "defeating reason" for action.

What if you want to do X--you have a justified reason to do X--but the
law commands you to not do it? The law defeats your other reason. It
does not destroy the other reason--there is a possibility of moral
tragedy, in the sense that two legitimate values may conflict. All
true laws are reasons for action, and they are conclusive, in the
sense that they defeat other reasons for action that are not
themselves legal norms. An invalid law provides a reason for action
(maybe you'll be shot if you don't obey it), but there may be no
reason to not try to cheat in private, since the invalid law lacks
what was doing the moral work to defeat your other reason. This is
Hart's distinction of "being obliged to do X" (because of a gun) and
"being obligated to do X" (because other reasons are defeated). Hart
believes that mere social facts move a demand (obliged) to a law
(obligated), so he is not a natural lawyer.

Finnis would conclude that law is a way of organizing society around
the basic goods derived by ethical natural law, like life, health,
knowledge, for the general common good:
The term 'law'
refers primarily to rules made, in accordance with regulative legal
rules, by a determinate and effective authority (itself identified
and, standardly, constituted as an institution by legal rules) for a
'complete' community, and buttressed by sanctions in accordance with
the rule-guided stipulations of adjudicative institutions, this
ensemble of rules and institutions being directed to reasonably
resolving any of the community's co-ordination problems (and to
ratifying, tolerating, regulating, or overriding co-ordination
solutions from any other institutions or sources of norms) for the
common good of that community.
This theory has combined
most of the strengths of natural law and positivism, and is often
regarded as the strongest modern variant. (By me, at least.)

Another author usually regarded as a natural lawyer, Lon Fuller,
concentrates more on the procedural constraints required so that the
law can fulfill its basic end, of organizing behavior. In his "The
Internal Morality of Law", he notes that laws must be (1) general, (2)
made known, (3) prospective, (4) understandable, (5) consistent, (6)
possible to obey, (7) stable, and (8) administered fairly. I would
view this as a subset of more general natural law theories: these
restrictions come from human nature in the sense that we can only
volunteer to conform to common-good commands if (1-8) are met. They
are not mere "efficacy conditions" as Hart has alleged: edicts which
fail to satisfy these conditions both are less effective and
do not have the full moral force of law.

Natural law is "perfectionist", in that it views law as a way of
cultivating a healthy moral ecology in which individuals can become
virtuous. Following Aristotle, it gives a strong role to the polis in
perfecting men. The polis is an "association for the good life, for
the sake of attaining a perfect existence", and any organization which
doesn't satisfy this is a mere trade organization or protective
arrangement. This is strongly against Rawls's "anti-perfectionist
argument". This does not mean that natural law strongly dictates
ends. Joseph Raz has written extensively on pluralism and natural
law. Since autonomy is a "constituent element of the good life", the
ability of an individual to create his own life through successive
decisions must be protected by the state. It is a fact of human nature
that individuals have different tendencies. Autonomous persons can
"develop relationships through which their personal integrity and
sense of dignity and self-respect are made concrete." This requires a
degree of pluralism. How much--and whether "victimless vices" can be
criminalized (Raz thinks they cannot)--I'll leave to another

But the last point I made brings us up against Roscoe Pound and Ayn
Rand. Pound gives too little credit to the arguments that freedom of
contract--autonomously creating promissory relationships that reflect
our dignity as persons--stems from human nature. Ayn Rand, perhaps,
gives it too much credit, setting contract above other common goods
that need to be protected by the state.

I have neglected Dworkin here, because I don't know anything about
Dworkin's beliefs about natural law.

Saturday, February 18, 2006

A philosophical argument for a middle ground on abortion

I would like to state an argument about abortion, without claiming that it is correct or even superior to other arguments on this difficult subject. I personally do not have a strong position on when a fetus becomes a baby. If I had to choose between the "viability" thesis (roughly 24 weeks, or just under 6 months) and the point of conception, I would choose conception. I have no idea why viability has any philosophical importance: it seems, just from looking at a fetus, that it is clearly a human being well before 6 months.

These thoughts are an attempt at something between those two numbers.

A human being is an animal with mental states. Of course, when sleeping or unconscious, a man might not be mentating ("having a mental state"), but a mere shift of an accidental characteristic will cause him to mentate, so he has the proximate potential to mentate. That is, he needs no substantial change before he can have thoughts, just a change in accidents--sleeping to waking.

What enables a person to have mental states? The brain. This is a generally accepted answer even among those, like me, who believe that the brain and the mind are distinct. Mental states supervene on physical states of a certain sort, and those physical states can only take place with a brain. Some physical arrangements of matter make possible a very strange circumstance, and that is mind. While it might be possible to have those physical arrangements and not have corresponding mental states, it is certainly the case that if the matter is not arranged correctly, there can be no mind. This is Searle's position, and I think it is very strong.

I think that when a fetus has a brain--has some neurons firing--there is a prima facie case that it has mental states which are supervening on the brain. Since the formal cause of man--the definition, or essence--includes at least the proximate potential to have mental states, the first possible time that a creature could satisfy this requirement would be when a brain has developed. This is a substantial change. Before the brain has developed, the mass of dividing and specializing cells is just that, cells: when it can mentate, it has personhood, and thus is a baby, and cannot be destroyed without the charge of murder.

So a fetus does not have the proximate potential to mentate: there is no set of mere accidents that need to change to cause the fetus to have a mental state, unlike the sleeping person. For the fetus to have a mental state, it will need to undergo a substantial change--get a brain--and become a baby. After the time of that substantial change, abortion is murder.

What this means on the time scale of a pregnancy, I do not know. The masses that will become the brain are developed as early as 5 weeks or so. Generally, the embryonic stage is said to end, and the fetal stage begins, at 8 weeks: all organs in a newborn are present at this point. This might be a good time to suggest that mental states might occur; another natural point might be week 13, when brain waves are said to be detectable. The most rapid development of the brain seems to take place largely in the 25-30th weeks, but that might just result in an increase in the capacity or type of mental states. Without a solution to the mind-body problem, of course, it's impossible to know.

Friday, February 17, 2006

How to punish those who commit atrocities in Darfur?

On the same subject as my post below, what do you do when demons plow over a church full of refugees and burn the rubble to kill those who survived? A new paper, "Atrocity and Punishment," by one Mr. Drumbl, addresses this issue of extraordinary crime and ordinary punishment. How do you treat a demon? As a person, as someone hors-le-loi, as a punishable example for other, future demons? Can we resurrect the category of barbarians and outlaws for the most atrocious actors? Do you execute extra-judicially (Churchill), use show-trials (Stalin), or make long trials aimed not at the defendants but at history (Truman)? Is evil one end of a continuous spectrum, as the liberal legalist paradigm asserts, or is it thought-defying, as Hannah Arendt believes?

What will become of Darfur when the demons are finally caught?

academic arbitrage: intertemporal transfer of contrariness

The "business cycle" is a fluctuation of stock inventory, fixed investment, infrastructure investment, and other macroeconomic variables. Aggregate demand gets out of sync from supply, and the reshuffling of capital from less- to more-productive uses occurs painfully. Fiscal and monetary policy can both be used to smooth out these cycles: inflationary and contractionary policies, for example, can be seen as intertemporally transferring investment from boom to bust periods.

Here's one way bloggers function the same way. Concepts also have cycles: the stock-value of a concept can go up as events in the world are interpreted, or as old proponents of these concepts die or are discredited and new generations have new fixations. Concept demand can change as consumer tastes vary. Speculators in the world bid on futures values of concepts, inflating some and deflating others. The spread of investors results in a mean value which fluctuates.

Arbitrage smooths fluctuations in economic markets by allowing those who believe a good is over or undervalued to transfer some of that mismatch from the future to the present, capturing the value. New information technologies do the same thing. The struggle between civil rights and security is one example, and bloggers have sped up the information cycle immeasurably. While two decades ago it may have taken a presidential administration for the pendulum of liberty and security to take a full swing, the concept cycle can now be a week or less, as bloggers make statements, other bloggers counter, and equilibrium is reestablished.

What's interesting is trying to predict the period of these swings. In the same way that academic economists use the properties of markets--depths of inventory, long-term response of short-term fixed costs--to try to model the Juglar and Kuznets cycles, the properties of information can be used to try to give substance to the Feiler Faster Thesis, and generate testable hypotheses of the news media cycle and how fast academic fads take to turn over.

As Ellickson says, there's a paper to be written here. Contrariness can be transferred in time, and the blogger captures the arbitrage: he gets read.

A Totally Made Up Idea About Auction Psychology

I've been playing around with this idea since Property today and reading Sean's post below. The ascending 'English auction' model seems to be preferred by many auction houses over the descending 'Dutch auction' model. The intuitive explanation I've heard is that bidding on an item somehow vests the bidder with a psychological stake in winning the auction, combined with what you discussed about spiraling revaluations as each bidder's willingness to go higher leads rivals to re-evaluate the objective/common value of the item.

But what about this as an alternative explanation: The English auction doesn't lead bidders to revise their overall subjective valuation. Instead, it diverts attention away from it by redirecting their focus to the bid margins, rather than on the the total bid price, leading them to implicitly and fallaciously treat their previous bids as quasi-sunk costs. They think in terms not of how much they are willing to pay for a certain item, but how much more they are willing to pay above the already revealed preference. It's the whole "if I'm willing to pay $10,000, then really $1,000 more is not a big deal." A familiar cognitive fallacy occures when people weigh total cost of an item against the total utility of the item, rather than against the marginal utility of the item relative to what they already have (like when I buy one new computer after another, thinking about the total utility of the new computer rather than the increase in utility over my current one). What I'm describing here is the converse - in deciding to bid as the ascending auction escalates, people mistakenly weigh the total utility of the item against the marginal bid price, rather than the total price.

The presumed advantage of the Dutch auction is that it plays on people's risk aversion - once the bid-price drops below the subjective valuation of the highest potential bidder, risk aversion presumably kicks in to force the subjective valuation information out, thus maximizing sale price. (An interesting side-question here is whether the risks associated with letting the bid-price descend below subjective value are appropriately risks taken in maximizing gains from trade, or in minimizing losses since the existence of gains from trade have already been revealed to the highest potential bidder and thus the option to accept the bid and purchase the item represents quasi-possession of the gains that exist at that bidprice.) However, the descending system keeps bidders directly focused on total bid-price, rather than the margin. Thus, it might get the highest valuer to reveal their true preference, but it won't get them to change it or disregard it.

The English system is hypothesized to get people to alter their valuation in the course of bidding. I've floated the idea that they lose sight of it by becoming focused on the margins rather than the total price. It may be a combination. Both would result in similar behavior, though my suggestion is perhaps less likely to explain behavior of institutional bidders. I'm thinking more along the lines of the people sitting in the chairs at Sotheby's. It would be fascinating to try to isolate the causes empirically.

Astounding anachronism: Was St. Thomas Aquinas a Whig?

Keep in mind that the following is an interpolation of various writings of Aquinas. I'll mention some more qualifications at the end.
Here are the sentiments of the most celebrated of all the Guelphic writers: -- "A King who is unfaithful to his duty forfeits his claim to obedience. It is not rebellion to depose him, for he is himself a rebel whom the nation has a right to put down. But it is better to abridge his power, that he may be unable to abuse it. For this purpose, the whole nation ought to have a share in governing itself; the constitution ought to combine a limited and elective monarchy, with an aristocracy of merit, and such an admixture of democracy as shall admit all classes to office, by popular election. No government has a right to levy taxes beyond the limit determined by the people. All political authority is derived from popular suffrage, and all laws must be made by the people or their representatives. There is no security for us as long as we depend on the will of another man." This language, which contains the earliest exposition of the Whig theory of the revolution, is taken from the works of St. Thomas Aquinas, of whom Lord Bacon says that he had the largest heart of the school divines. And it is worth while to observe that he wrote at the very moment when Simon de Montfort summoned the Commons; and that the politics of the Neapolitan friar are centuries in advance of the English statesman’s.
It's important to remember that Aquinas would replace one king only with another king, and that for him liberty does not trump order, as it does for a great many impractical libertarians.

But this latter is perhaps not a huge hurdle for practical libertarians. David Friedman is in the habit of noting that the average person does not reject anarcho-capitalism because he is afraid the mail will not be carried effectively or because of economies of scale in road-building or because he believes no internet governance would lead to inefficiently-many standards: he rejects anarchy because he is afraid of killing and pillaging in the streets. Those who cry "let justice (or liberty) be done, though the heavens fall" are usually secretly sure that the sky will stay in place--or they are crazy and not to be trusted with power. Rational people only believe liberty should trump order when that trump card is never played, or if they have never been to Haiti.

The former point--of believing a king is superior to democracy--is more problematic. He does suggest the monarch should be elective, and requires laws to made by the people's representative. Perhaps for Thomas the king is the most dangerous branch of government?

In any event, a provoking thought. The paragraph above was assimilated by Lord Acton.

Thursday, February 16, 2006

The musical Chicago, popping a cap in your husband, and legal research

An enigmatic calendar event noted by Legal Theory Blog:
Brooklyn Law School: Law: Marianne Constable, Professor of Rhetoric, University of California at Berkeley, Husband-Killing in Chicago in the Late 19th/Early 20th Century

Fears and Scruples: Browning

The poem noted below by Borges is available here. Pretty powerful--faith, shaken up, stirred, and served with a lime.

Hemingway's influence on Chaucer

An old English professor of mine (in many ways: it was a long time ago, he was fairly old, and I also had him for Old English, the language) once said he had the shortest PhD thesis of his university, titled "Hemingway's Influence On Chaucer."

Under post-modernism all things come to pass. In a typically brilliant and confusing essay, Borges in Kafka and his Precursors notes that time runs backwards as well. After listing a series of oddities that he feels somehow might have influenced Kafka, Borges notes this:
If I am not mistaken, the heterogeneous pieces I have enumerated resemble Kafka; if I am not mistaken, not all of them resemble each other. The second fact is more significant. In each of these texts we find Kafka's idiosyncrasy to a greater or lesser degree, but if Kafka had never written a line, we would not perceive this quality; in other words, it would not exist. The poem "Fears and Scruples" by Browning foretells Kafka's work, but our reading of Kafka perceptibly sharpens and deflects our reading of the poem. Browning did not read it as we do now. In the critic's vocabulary, the word "precursor" is indispensable, but it should be cleansed of all connotations of polemics or rivalry. The fact is that every writer creates his own precursors. His work modifies our conception of the past, as it will modify the future.
On this subject he cites T.S. Eliot, Points of View (1941), pp. 25-26. I'll be looking this up soon. I love this overall image. I found E.M. Forster's discussion in Aspects of the Novel of fiction as a conversation in a room, with all writers writing simultaneously, to be immensely powerful. Perhaps Borges's reversal of time is even more illuminating than simultaneity.

how to bid on blake's watercolors: auction theory

(Some of this is from an online auction theory primer.)

Auctions aren't just used to raffle off Blake watercolors: the govt sells t-bills, mineral rights, and the radio spectrum this way. So billions of dollars ride on auction theory every day.

The basic auction theory economic/game-theory model is a (1) fixed set of (2) symmetric (3) risk-neutral bidders with (4) independent information who bid (5) costlessly and (6) independently for (7) one object. Relaxing these assumptions is the main work of auction theory.

Consider the ascending-bid (English) and descending-bid (Dutch) auctions. It might seem clear that the Dutch auction will get thehouse a larger price. If bidders state their honest subjective values, this is true: an English auction will get the house the second-highest bidder's value (within an auction increment), while the Dutch auction receives the highest. Of course, if there are "many" bidders in some sense, then the results converge. Also, if the bidders behave strategically, rather than giving the independent bids in both types of auctions, there are circumstances in which a Dutch auction will bring a lower price than English. This can happen if bidders are very uncertain about the value of the good: the ascending auction can give signals, and encouragement, about the true value as bidders drop out. (Click on "Read..." to see more.)

Auctions depend strongly on asymmetric information. (If all bidders have equivalent information, most auction models are trivial.) There are two extreme models of information. The pure private-value model assumes that everyone has their own subjective value, and wouldn't care if they found someone else's value. The pure common-value model assumes the good has an objective market value which is only imperfectly known; each bidder has access to certain information, and finding out another's info might change your bid. The private-value model might be corrupted if you find out that others highly value the object: it might make you subjectively appreciate it more, or make you conscious of its possible resale value.

The winner's curse is a basic conundrum: auctions with simplifying behavioral models are usually shown to generate a sale price higher than the objective value of the good. If bidders take into account the bad news that others' signals generate (by dropping out), the winner's curse price and the objective value may converge. It's the auction house's job to hide some of this information, but without making the auction so uncertain that bidders (who are often risk-averse) low-ball the price.

Misfortune and Opportunism

The segment Jon Stewart ran on Monday night about the Cheney hunting accident drew stronger laughs from me than anything I've seen since ultimateshowdown.org. As of then, Mr. Whittington's injuries did not appear to be serious. No harm, no foul - the idea of a Vice President (especially one as cryptic, stodgy, and occasionally ill-tempered as Cheney) shooting someone is simply funny. Stewart and his crew played brilliantly on the idea of Cheney's error (somewhat misrepresented, as I explain below) as a metaphor for the mistake about WMD's in Iraq and some of the absurd responses the administration has come up with. All in very good humor.

Meanwhile, the story has snowballed into the stirrings of a real fake controversy in the mainstream press. It started with rancor over the how the manner and timing of the story's dissemination was handled. Next came murmors about the fact that Cheney had apparently failed to pay a $7 fee to the Texas Gaming Commission. Then on Tuesday, as some troubling developments in Mr. Whittington's condition came to light, speculation started to swirl about whether Cheney was truely blameless, or whether he might actually have some culpability. Additional "questions" were raised about the timing of the Vice President's interview with law enforcement, whether Mr. Cheney had apologized to Mr. Whittington and whether it would be appropriate for such apologies to be public. Commentaries about the secretiveness and extensive influence of the Vice President floated in the background throughout. Finally today, I'm reading stories to the effect that if Mr. Whittington (whose condition seems to have stablized and is busy doing his job from his hospital room) were to die from his injuries, the Vice President might be subject to a Grand Jury investigation and possible criminal charges for negligent or reckless homicide.

Now I am not a fan of the way Dick Cheney discharges his office, but this needs to stop. Metaphorical whimsy and humor aside, the incident has nothing whatsoever to do with Cheney's Vice Presidency, the decisions of the administration (past or present), or anything else of significance to the American polity. Every one of us knows this at heart, and anyone inclined to earnestly assert otherwise is either guilty of the worst sort of political opportunism, or needs to step back and get some perspective on why they think what they think.
Click here to read more.

The Small Stuff

The fixation of the press on the way in which news of the accident was released is misdirected anger. I agree with the sentiment that this administration has been improperly and even ominously resistent to legitimate inquiries by the press on a wide range of issues, failing in its obligation to be forthcoming that any group of elected officials bears. It has been this way about many important matters of national security, of policy, of professional conduct. The press is right to be angry about that. But that's not what was going on here. This was, at worst, bad management of the news cycle by the White House communications office. There was no thought of a cover-up (how could there be?), nor do I think the announcement necessarily needed to come from the White House Press Secretary, though it surely would have had they known what a headache the alternative was going to cause them. The Vice President had been involved in an accident that was not part of his official duties and at the time had not been thought to have resulted in serious injury. If someone can point out the significant consequence of it having hit the wires on Sunday morning rather than Saturday night, then please do. Until then, fetishizing over the 14 hours that transpired between the initial notification of the Chief of Staff that an accident not necessarily involving the Vice President had occured and the story's ultimate release to local news in Texas is energy that could be better spent.

The delay in speaking to law enforcement is similarly being blown out of proportion. Sure, he was not treated like an ordinary citizen. He's not an ordinary citizen. The Vice President is the second-ranking executive official in the nation. He must be ready to assume command over the United States military at a moment's notice, and is under the constant and vigilant protection of the Secret Service who, by the way, were the ones who negotiated the time and setting of the interview. To expect that he would have a casual conversation with some local sheriff right after the incident is simply unrealistic. Secret Service has to vet the law enforcement officers and secure any interview location. White House Counsel has to be consulted. It takes time. These are the realities that accompany life at the top of the Executive totem pole. It would have been the same in any other administration. We're talking about hours here people, not weeks.

Finally, the business about the $7 license fee is really quite laughable. Someone on the Vice President's staff is doubtless having his/her ears boxed for that little screwup, but if you really think it bears seriously on the moral conduct of the Vice President, seek help.

The Accident

The part that bothers me the most about this is the attempt by some to go beyond the process story and assert that there was some serious element of misconduct in the incident itself. This was an accident, and we all know it. Hunting is inherently dangerous, there was a mixup, and it resulted in Cheney accidentally hitting Mr. Whittington while firing at a moving bird from a distance of 30 yards. No one has suggested the Cheney meant to shoot Whittington, because it's entirely absurd. Yet, without any concrete understanding of what actually happened, and without actually asserting it (because that would actually require having something to back it up), some commentators have suggested that Cheney might have recklessly and negligently shot his friend (and to top it off, doesn't even feel bad about it).

Granting the benefit of the doubt, I think some people may be under the impression, whether from satirical accounts or just lack of background knowledge, that Whittington was somehow actually mistaken for a bird, or that Cheney was shooting at a stationary target and was too careless to note the blaring orange in his line of sight, both of which are misunderstandings. I've never been hunting myself, but I know roughly how bird hunting works and a little bit about eyesight. Let's think this through for a moment. First, consider that when you take aim at a moving target, your vision focuses in on the object as you track it and your brain 'filters out' from your perception much of what you see in background so as to keep that focus stable while the background moves (much in the same way you isolate the voice of a particular speaker in a room with a lot of background chatter).

Now let's turn the description of what happened and try to visualize the sequence of events. Whittington had shot a bird and was looking for it in some tall grass. He came up from behind Cheney and another fellow hunter - from a direction outside their visual field and partially obscured by the surrounding grass. He was 30 yards away - 90 feet. Think for a moment how far that is, remembering that distances seem much longer in the context of intervening foliage. Meanwhile, Cheney and his companion had spotted a covey (a small flock of birds) mingling in a hiding spot on the ground (usually discovered using specially trained bird-hunting dogs). The idea is to get the covey to "flush" - to scatter and fly out in the open - whereupon the hunter tries to hit one of them.

The covey flushed, and Cheney took aim at one of the birds as it rapidly moved horizontally and close to the ground, requiring Cheney to pivot in order to follow its arc while trying to maintain his aim. Cheney fired at the moment the bird's trajectory brought it on a line between himself and Mr. Whittington, missing the bird and hitting the partially concealed Whittington with some of the pellets. Recalling what I said earlier about tracking moving targets, it is likely that Cheney never actually 'saw' Mr. Whittington (even if Mr. Whittington had, to some extent, appeared in Cheney's visual field) until after he had fired and heard Mr. Whittington's cry. If any of you have ever seen the movie Master and Commander, think of the moment when the soldier accidentally hits the doctor while trying to shoot a bird flying around the deck of the ship, and you'll have a general idea of what happened.

It's a pretty textbook example of how most hunting accidents occur. This is why hunters are careful to communicate their location to other hunters, and why they wear orange clothing that sharply contrasts with the surrounding environment. To the extent that there was confusion about Mr. Whittington's location, the group was not optimally following the safety guidelines. This applies to both Cheney and Whittington. But in the reality of the sport (like any other), compliance with safety guidelines is virtually never perfect, and that's why accidents happen.

Moving On

Dick Cheney is an elderly man with a reputation for being highly calculating and meticulous. Whatever one may think about his political decisions, the notion that he was somehow cavalierly operating far outside the norms of the sport strikes me as unlikely. Every witness at the scene including the victim agrees that it was an accident plain and simple. The almost gleeful speculation with an ever so subtle twinge of hope at how Cheney might be criminally liable if Mr. Whittington dies is morbid, perverse, and frankly immoral. It's the sort of vindictiveness that latches onto anything it can, however benign or trivial, and at its root is really the hallmark of bitter impotence.

Furthermore, it's a waste of the public forum. Debating whether the administration waited too long in releasing the story or whether Cheney is sorry (and you have to be exceptionally cynical to think he's not) consumes time during which we could be discussing the President's domestic policy proposals, learning about what's happening in Sudan or the West Bank, cheering the Olympic athletes in Torino, or just watching re-runs of Seinfeld, all of which would be superior alternatives.

You might not like hunting. You might not like the Vice President. I don't really like either. But I don't for a minute think that this is symptomatic of some broader tendency, that it's an expression of the underlying character of the administration, or that it's some kind of poetic justice. As Jon Stewart said it in the course of his hilarous shtick, "Vice President Dick Cheney shot a 78-year-old man in the face while mistaking him for a small bird." Another way to say it is that a man accidentally hurt his friend, almost killing him. Many events in our lives are both comic and tragic, and balancing the two is part of how we stay sane. But let's keep it sane. Let's have our laugh, say a prayer for the poor guy in the hospital, and move on.

extensive research on "Blackacre" etymology...

...leads me to a secret source only available in a dusty library in Tripoli's Old City:

Jesse Dukeminier, author of one of the leading series of textbooks on property, traces the use of Blackacre and Whiteacre for this purpose to a 1628 treatise by Sir Edward Coke. Dukeminier suggests that the term might originate with references to colors associated with certain crops ("peas and beans are black, corn and potatoes are white, hay is green"), or with the means by which rents were to be paid, with black rents payable in produce and white rents in silver.

Blackacre is also the name adopted by a literary journal at the University of Texas School of Law. The journal is compiled and edited each year by the Texas Law Writers League, an organization co-founded by Meera George, Robert Love, and Michael Matthews in 2004.

"The law allows it, and the court awards it"

(Pre-script: a free drink to anyone who knows where the post-title comes from without researching it. You have to collect it at happy hour on friday.)

From a footnote to On the dividing line between Natural Law Theory and Legal Positivism, 75 Notre Dame L. Rev. 1613, Brian Bix:
One "internalizes" the law when one willingly, promptly, readily - and not merely out of "extrinsic" motivations of fear of punishment or hope of reward - complies with its requirements, not only according to the letter of the law but primarily according to the lawmaker's intention and plan for common good. Such states of affairs are the central case of law because they most fully instantiate the fundamental notion of law: a prescription of reason, by means of which rational and indeed conscientious and reasonable practical judgments about the needs of a complete community's common, public good, having been made and published by lawmakers, are understood and adopted by citizens as the imperium of their own autonomous, individual practical reason and will.
Three things out of this amazingly succinct paragraph. First, law is closely tied to virtue and doing the right thing for the right reason. Second, law is practical reason, providing justified reasons for action for the individual. Third, law has a "fundamental notion," or, equivalently, an essence, a definition, a central idea.Why is law a reason for action? Because it satisfies a set of not-optional requirements: it is (1) a general rule (2) promulgated by (3) a rulemaker who has care for the community (4) for the common good.

What if you want to--have a justified reason to--do X but the law commands you to not do it? The law defeats your other reason (usually). It does not destroy the other reason--there is a possibility of moral tragedy, in the sense that two legitimate values may conflict. All true laws are reasons for action, and they are conclusive, in the sense that they defeat other reasons for action that are not themselves legal norms. (Or, in some cases, moral norms.)

How does the law acquire this incredible power? By meeting the requirements (1-4) above. (See Joseph Raz, The Morality of Freedom.)

This is the natural law theory of the state. It may seem that (3) is a weak link: how do you determine who is a legitimately constituted authority? But in fact post-Thomistic scholars have carried this requirement to a level of sophistication and rigor never dreamed of by Thomas--see especially H.L.A. Hart, The Concept of Law, and his discussion of the internal perspective and the Rule of Recognition.

What seems to be a problem is (4). It's fairly clear that a strongman could seize power in a city-state, and dictate rules through a powerful apparatus which favored his cronies but which had, on the whole, malign consequences for the public. Positivism, the New Haven School, Legal Process, and Legal Realism would have no problem calling this a legal system. And yet it is unclear that his edicts provide a reason for action which defeats non-legal reasons. It provides a reason for action if you don't want to be shot, but if you can get away with it in secret, the quasi-law has lost the element that allowed it to have enough moral force to defeat your other reason.

Hart's distinction of "being obliged to do X" (because of a gun) and "being obligated to do X" (because other reasons are defeated) thus in fact is not explained by Hart's legal theories (and much less by Kelsen's or Austin's).

I think it is safe to say that the most important question since Weber is, once (4) has been dropped, how do you justify obedience to the state? The notion that the common good, moral and legal norms, and reasons for action are tightly intertwined has been called by Isaiah Berlin "the central tradition of western thought." As a libertarian he rejected it. What replaces it?

Reich and the New Property

This is an awesome band. They play a style of angular punk, with a layered sound that comes out uncharacteristically clean for the amount of noise they make. Plus they use a lot of cowbell.

Amazingly, it's also a really cool law paper, 73 Yale L J 733. Our property reader notes the existence of the paper without mentioning how hostile Reich is to the displacement of traditional property rights by unsecured government largesse. He establishes that the government controls far more of the nation's institutional capital than the typical "oh, divide government expenditures by total GDP" 30% figure I usually cook up. Licenses, subsidies, use of scarce public resources, govt jobs, services, franchises...

Reich then notes how little protection these forms of "property" usually have, despite Goldberg v Kelly. You are entitled to a mere administrative hearing before your use of an airwave frequency is revoked, the government may not be able to take away your driver's license for absolutely no reason, and an administrator has to have just some form of standards for deciding when benefits may be revoked. While we have moved a ways from the principle of "in accepting public largesse, the recipient has consented to the provisions of the law under which the gratuity is bestowed", we are still a long ways from even the moderately weak protection from the political system afforded to property.

Interestingly, the new property of public largesse has allowed the government to enact salutary reforms against racism--holders of licenses may be barred from discrimination, for example. But--oops--the government has also used its political power to pursue communists (recipients of low-income housing can't be commies) and try to enforce social views (through its control of resale of airwave rights).

Hegelians say that "civilization" is the displacement of the private by the public. If only bureaucracies could be half as nice as the meanest nun in catholic school, this displacement might not be such a bad thing.

Sunday, February 12, 2006

The first step in natural law

Here's the first step of Natural Law 101 for dummies. So: there are certain human goods arising out of human nature, and these goods are reasons for action: they make action intelligible. But how do you find out about these goods, these reasons for action, in the first place? There are two competing theories: derivationism and inclinationism.
  1. Derivationism holds that practical judgments regarding these natural ends of human flourishing are not self-evident, and need to be derived form theoretical proofs about human nature. We know certain things about humans from speculative reason. From these facts we can characterize what's good for humans. This tightly links what "kind" of thing you are with what your "good" is through analytical truths.
  2. Inclinationism, on the other hand, believes that the basic forms of good can be adequately grasped by anyone who is of the age of reason. So basic goods are per se nota (self-evident), and since they are indemonstrable, one doesn't need a metaphysician to demonstrate them. One becomes aware "by a simple act of non-inferential understanding" that certain objects are goods to be sought. Practical reason can grasp first principles, contra those who think that all practical reason is about weighing means. One is inclined towards something, and one then understands that the thing one seeks is a specific example of a general good, such as knowledge.
Aquinas and, to some degree, Aristotle, were derivationists. Inclinationism is generally the way most modern natural lawyers go. It states that the first principles of the good are indemonstrable, and relies on inclinations, or tendencies to act, for understanding what is the good. The goods thus discovered are part of a coherent system of ends, and one can affirm that something is a good because it renders other important claims intelligible. What sorts of object must be affirmed as good to render our acts intelligible? Inclinationism doesn't "derive" new knowledge about goods: it is a way of making explicit what we already know implicitly.

This is a summary of the first chapter of Murphy's Natural Law and Practical Rationality. He continues with discussions of how this process can go wrong, of objections to (1) and (2), and gets into a very elaborate, and important, discussion of the "function" of something, and how it relates to the functions of its parts. Can't summarize that now!

Easterly on Africa in Washington Post

Easterly writes poignantly about Africa today. If you have read Sach's The End of Poverty but have not read Easterly's The Elusive Quest for Growth, I suggest you get off yer Gerbil Wheel and pick it up, or perhaps erect a stand in front of your wheel so you can spin it and read at the same time. Reading the two books side by side is like listening to the defense and prosecution present their case--with the difference that lives are on the line, and Easterly has the numbers. There are few more important issues today than "what to do about Africa;" if Easterly is ignored, one will be able to say the exact same thing in thirty years.

The right to do wrong by changing timestamps

I put a small response to Bob's note on "The right to do wrong" below. I adjusted the timestamp so that mine follows directly after his for convenience.

Blogging tips from Busblog

A collection of idiosyncratic blogging tips from Tony Pierce at busblog. Careful: the latter page is not always totally work-safe. The pic at the top of the blogtips list is safe, but somehow slightly disturbingly suggestive. That's busblog all over.

Bundles of sticks and mineral rights -- chopping property

On the subject of disaggregating property rights, there are three articles I know of that attack the infinite divisibility of property into sticks. Thomas C. Grey, The Disintegration of Property in XXII Nomos 69, argues that chopping property up into too-fine parcels destroys its intelligibility as a category. Carol Rose has noted in her book Property and Persuasion (which I have not read) that the bundle-of-sticks metaphor does violence to the idea that certain central characteristics of property are more important than the easily lopped-off parts. Finally Merrill and Smith argue in The Optimal Standardization in the Law of Property, 110 Yale L J 1 (2000), that the usefulness of property depends on its standardization of expectations, and that chopping it up can make property, in fact, more of a hindrance than a help.

Read these and impress Ellickson. I can never remember any of this stuff. I do think this is another example of how modern analysis frequently misses the telos of a concept. From Legal Realism, Legal Formalism, and the Interpretation of Statutes and the Constitution, 37 Case W. Res. 179, Posner:
If you take the legs off of a table (permanently -- not just for storage or moving), it is no longer a table. But it doesn't follow that if you don't have an acceptance you don't have a contract. A contract is just a promise that courts will enforce, and if there is a good policy reason for doing so they can decide to enforce a promise even though it was not consciously accepted. Nor is it a good reply that a contract without acceptance is like a table missing only one leg; that no essential, defining characteristic of the concept of contract is missing, as would be the case if there were neither offer nor acceptance. What should count as the essential, defining characteristics of contract is not a semantic question; it is a policy question. We may enforce any promise we want, and call it a contract, just as we can punish a drug dealer for his agent's possession of illegal drugs by saying that the dealer has "constructive" possession.
This is a perfect example of the anti-essentialist position. And I think it truly screws with the idea of contract. No doubt some small things can come and go; but without acceptance, the central moral power that does the work of contract is missing. Treating it as optional is to miss the boat.

What minimalism looks like

If you have never heard Terry Riley's astounding In C, I suggest you go out and buy a copy of it (I have no recommendations on who to choose for aleatoric music: it's too personal) or get off yer Gerbil Wheel and buy Rhapsody. Here's what it looks like: the full score is available at OtherMinds, and Wikipedia has a good starting description of Riley. The basic idea is that of a tonic note repeatedly struck (C here, of course) around which everything swirls in a superficially-random but deeply-ordered way, so that you are perpetually centered yet are perpetually swept away, getting glimpses of where you are and where you're going, which is where you've been. It is in many ways the opposite of Bach's Perpetually Rising Canon from his musical offering, in which you are perpetually rising yet never move. Or maybe it's the same. I don't know.

Absorbing music

From Richard Powers's The Time of our Singing:
I worked through the Lyric Pieces, one every two weeks, a dozen bars every afternoon. I'd repeat the phrase until the notes dissolved under me, the way a word turns back to meaningless purity when chanted long enough. I'd split twelve bars into six, then shatter it down to one. One bar, halting, rethreading, retaking, now soft, now mezzo, now note for staggered note. I'd experiment with the attacks, making my hands a rod and striking each machine-coupled note. I'd relax and roll a chord as if it were written out arpeggio. I'd repeat the drill, depressing the keys so slowly they didn't sound, playing the whole passage with only releases. I'd lean on the bass or feel my hands, like an apprentice conjurer extracting hidden interior harmonies from the fray.
Hat tip to The Rest is Noise.

The future of affordable housing?

Aerial photos of Mexico City's Ixtapaluca region. Also, everyone knows about the Aztec temple beneath (now unearthed) the Zocalo. But I had not traveled to Teotihuacan, where there is a huge pyramid. I bet looking in the opposite direction of the second picture below would reveal Mexico City's madness, much like Giza abuts Cairo. There's a certain similarity to the two shots at right, and I wonder if the affront to human dignity represented by the two different extremes will have the same effect in the long run...

Sometimes I'm not very optimistic about humanity. Sigh.