Dear Men, Shut Up About ‘Due Process’ Already

From sea to shining sea, on social media pages nationwide, brave men are taking up cudgels on behalf of their brothers-in-sex-and-gender, the ones whose lives are facing ruination because of this country’s #MeToo moment, as accusation after accusation of sexual harassment and assault issue forth from women who’ve previously remained silent. In each case, their defense takes an exceedingly simple form: it is to insist on ‘due process,’ to assert that every ‘accused’ has a ‘presumption to innocence,’ that they are ‘innocent until proven guilty,’ that they fear this business of identifying the men who harass and assault in impunity is all too likely to morph into that most dreaded of social epidemics: the witch hunt. Cease and desist, they say; let us wait till ‘the facts are in,’ till a ‘trial’ has taken place and ‘guilt’ has been conclusively established.

There are several–deliberate, I suspect–confusions at play here. Most prominently, this kind of response confuses the standards for a criminal conviction by the state in a court of law with the usual evidentiary standards that underwrite our usual social judgments of misbehavior. A courtroom furnishes one epistemic context; it addresses the imbalance of power that exists between the state and the accused, and puts the burden on the state to prove its point. This standard of proof is relaxed in civil cases, which only require a ‘preponderance of the evidence’ and do not require guilt to be established ‘beyond a reasonable doubt.’ Our day-to-day social encounters furnish yet other epistemic contexts; within them, we are, on a daily basis, subjected to ‘evidence’ of varying  levels of reliability, submitted by sources whom we trust to varying degrees; we act on the basis of these sorts of claims, assessing them using our socially acquired and developed skills of evidence evaluation; we often act on the basis of incomplete or only partially verified evidentiary claims; indeed, we have to, for stasis and inaction are not options more often than not. That is, we do not sit around, waiting for the standards of a criminal court to be satisfied before we act; social ends, desirable ones, have to be met.

Critical legal studies scholars have, for a long time now, identified one dishonorable ideological function that the law and its institutions–among which is legal language–play in our society: the establishment of a kind of ‘rationality’–the legal kind, which ostensibly aspires to the value-free, fact-laden-and-dependent kind of reasoning followed in the sciences–which can then be used to discredit other kinds of reasoning. The invocation of deployment of criminal law’s standards of evidence and its methodology for determining ‘guilt’ in social contexts outside of courtrooms is a good example of this kind of ideological maneuver. This invocation is particularly problematic when it is realized that courtroom deliberations themselves are anything but value-and-bias-free; determinations of guilt in courtrooms are as socially and politically riven as those that take place elsewhere; it is just that legal decisions lay claim to a presumption of having cleansed themselves of prejudice thanks to their supposed circumscription by ‘legal method.’

This particular technique of obfuscation has a long and dishonorable history–and it looks likely to continue for the established future. After all, maintaining this confusion is necessary for the maintenance of established power relations and for the continuance of bad behavior by serial offenders.

Anita Hill, Harvey Weinstein, And National Amnesia

In October 1991, I, along with millions of other curious viewers, watched the Senate nomination hearings for the Supreme Court nominee, Clarence Thomas. My curiosity, like that of many others, had been piqued by the presence of Thomas’ former assistant, Anita Hill, who had accused him of sexual harassment at her workplace. On the second day of her testimony, I was joined in my viewing by my girlfriend; we worked together at AT&T’s Bell Laboratories in New Jersey–she as a technical writer, I as a systems analyst. As we watched the hearings, my girlfriend grew increasingly animated–she commented time and again on Hill’s ‘bravery,’ her ‘courage,’ on how difficult it must have been for her to speak up. She spoke too, of the many incidents of harassment–major and minor–she herself had suffered at her workplace; she told me how all around her, women were talking–to each other, and to anyone, men included, who would listen–about how Anita Hill was giving voice to a complaint all too often ignored. And indeed, over the next few days, in newspapers, on talk shows, in usenet newsgroups, you could hear women talking about how Anita Hill’s testimony had blown the lid off the modern workplace’s biggest and most enduring scandal: the daily rituals of intimidation, humiliation, harassment that women had to undergo within its precincts. All around me, everyone agreed: this was a national ‘conversation’ we needed to be having; the world was not going to be the same again after these kinds of ‘revelations’; boyfriends and husbands were listening. (On the night Thomas’ confirmation was received, I was at my girlfriend’s house. When we heard the final 52-48 vote to confirm, she kicked the bed in disgust and anger; no one would listen to women; despite all that Hill had said, despite her transparent sincerity, the usual fog of obfuscation and denial–and in Thomas’ case, an astonishing self-pitying rant–had derailed her claims.)

It is now 2017, some twenty-six years on. The years have rolled on, much has changed, but yet more endures. We have been assured, thanks to La Affaire Harvey Weinstein and the #MeToo campaign, that we are at a national watershed moment when it comes to the problem of sexual harassment, that we now have unprecedented awareness about the problems that women face in the workplace–and elsewhere–when it comes to the business of being able to simply maintain some kinds of boundaries around themselves and their bodies. Back in 1991, in my workplace, there had been many employee seminars for ‘sensitivity training’ and the like–all to increase workplace awareness about the problem of sexual harassment. The men hadn’t liked it then; the current evidence seems to suggest all those seminars, at workplaces nationwide, had little effect–the Weinstein scandal is merely the most publicized of the many sexual harassment ‘scandals’ since. There is reason for pessimism again: the #MeToo campaign is already old hat, and business is returning to normal all too soon.

We’ve been here before; we might yet find ourselves at these crossroads again. Our memories are all too fragile, all too easily effaced.

Catharine MacKinnon’s Feminist Jurisprudence In The Classroom

Next week, students in my Philosophy of Law class will read and discuss Catharine MacKinnon‘s ‘Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence‘  (Signs, Vol. 8, No. 4 (Summer, 1983), pp. 635-658). MacKinnon’s writings have featured once before on my reading lists–for my graduate ‘Nature of Law’ seminar at the City University Graduate Center in 2015. She is always a teaching challenge: she is provocative, invariably evoking strong reactions from her readers, and often, a dense read. No matter what the class’ reaction to the assigned reading as students read it on their own, I’m reasonably hopeful that passages like the following will provoke discussion when we gather in the classroom:

Feminism does not begin with the premise that it is unpremised. It does not aspire to persuade an unpremised audience because there is no such audience. Its project is to uncover and claim as  valid the experience of women, the major content of which is the devalidation of women’s experience.

This defines our task not only because male dominance is perhaps the most pervasive and tenacious system of power in history, but because it is metaphysically nearly perfect. Its point of view is the standard for point-of-viewlessness, its particularity the meaning of universality. Its force is exercised as consent, its authority as participation, its supremacy as the paradigm of order, its  control as the definition of legitimacy. Feminism claims the voice of women’s silence, the sexuality of our eroticized desexualization, the fullness of “lack,” the centrality of our marginality and exclusion, the public nature of privacy, the presence of our absence. This approach is more complex than transgression, more transformative than transvaluation, deeper than mirror-imaged resistance, more affirmative than the negation of our negativity. It is neither materialist nor idealist; it is feminist. Neither the transcendence of liberalism nor the determination of materialism works for us. Idealism is too unreal; women’s inequality is enforced, so it cannot simply be thought out of existence, certainly not by us. Materialism is too real; women’s inequality has never not existed, so women’s equality never has. That is, the equality of women to men will not be scientifically provable until it is no longer necessary to do so. Women’s situation offers no outside to stand on or gaze at, no inside to escape to, too much urgency to wait, no place else to go, and nothing to use but the twisted tools that have been shoved down our throats. If feminism is revolutionary, this is why.

I hope to write here next week on the how the classroom discussion went.

#MeToo Shows Sexual Harassment And Abuse Is A Feature, Not A Bug

The Facebook status is simple:

Me too. If all the people who have been sexually harassed or assaulted wrote “Me too” as a status, we might give people a sense of the magnitude of the problem. Please copy/paste, if you’re comfortable doing so.

And effective: it has produced a deluge of “Me too” statuses. The vast majority are produced by women–with varying levels of detail–though some men have also spoken up about their experiences of sexual harassment or assault (mostly by other men.) The ubiquity of this status is appalling and shocking and revealing. And the news isn’t good. As long as we have a society founded on patriarchy and sexism and a constructed masculinity where one gender (or sex) is set up as the ideal, the other is well, othered, where the superior gender is granted seemingly indiscriminate power while the inferior one is rendered comparatively powerless, where social arrangements and understandings turn sex into an ideological instrument for bodily and social control, which treats one gender’s sexuality as a sacrament and another’s as a sin, sexual assault and harassment will remain societal features not bugs. The current state of affairs–a population made up of those who have experienced sexual assault and harassment–is an eventuality foretold.

A masculinity grounded in violence and sexual superiority–in prowess, capacity, ability, virtue–is an integral part of such a system. Men must acquire masculinity or show that they already possess it by acts of violence or sexuality; it is no surprise that male icons and role models–historic and present–embody some form of violent domination or an exaggerated sexuality. (The current president of the United States rose to power on the basis of campaign that featured extensive bragging about how violent he could be if the opportunity arose, the length of his penis, and the unbridled assault he was fond of launching on unsuspecting women.) Notches on a belt can indicate both kills and sexual conquests. Male sexual virtue is matter of performance and power; female sexual virtue is grounded in reticence and inaccessibility, in zealously protecting ‘the goods.’ Assertions of will to exert sexual control now appear virtuous within this schema: the male must, if ‘necessary’, override the assertion of will by the ‘inferior gender’ and assert his sexuality, the dominant and superior one, at its expense. If violence be a tool in this ‘conquest,’ then so be it. (Of course, as many women have pointed out, sexual assault and harassment is not about sex, it is about power and domination, of the forceful imposition of a will over someone whose desires and rights are not worthy of consideration in the calculus of masculinity.)

Men do not seem to realize that patriarchy does not work for them either; the notions of masculinity it imposes on them cripples their relationships, drives them into dead-ends of despair at their failures to conform, and of course, to commit acts of violence against each other. ‘Pussies’ and ‘faggots’ and ‘wimps who can’t get laid’ know this only too well. One way in which they can redeem themselves is to turn their inward directed self-disgust elsewhere. Perhaps at children, at women, at other men.

Robert Talisse On ‘Too Much Democracy’ And The Public-Private Distinction

Over at Aeon Magazine Robert Talisse worries that “our social lives” are being “tyrannised by democracy” because “choices about mundane matters…are all deeply tied to [our] political profile…social worlds are shaped by the travails of contemporary politics” and builds to the conclusion that “there is such a thing as too much democracy,” that “we must reserve space in our shared social lives for that which is not political.” Because the “saturation of civic life by democratic politics crowds out the fundamental bases for community and social cooperation….we must cultivate a…civic friendship,” by engaging “with each other on matters that are not political,” by talking with each other “about matters of substance that are not at all political.”

Roughly, let us not structure our personal lives and spheres by the political, by democratic politics, revolving around the expression and instantiation of political preferences; rather, let us let the political emerge from a set of personal micro-interactions, cultivating along the way, the ‘civic friendship’ that should underwrite a viable democracy. Talisse thus insists on reserving an exclusively personal space, free of politics, one from which the political—‘democracy’—would emerge; at least in this way, Talisse’s analysis reinforces an older public and private distinction. Here is the personal, and here is the political; the twain shall meet but on the terms dictated by the former; the latter is not permitted to ‘tyrannize’ the personal. (Incidentally, we might ask whether the problem that Talisse points to is specifically a problem of democracy or of any political system in which the personal is infected by the political?)

I agree with Talisse that the social world–as it is visible in his formulation–is structured by politics but I think we get a narrowly framed picture of what this structuring is like if we think of this only in terms of political preferences i.e., I’m picking and choosing my friends and family and acquaintances based on their and mine political preferences and tastes. For instance, my socially constructed race and gender, and my materially constructed class has a great deal to say about what my social spaces and thus, what my social interactions, are like. This is not a matter of my political preference; I am placed into certain social spaces by these attributes of mine, and those are determined by larger social materialities. Furthermore, I am susceptible and vulnerable to legal control in differential ways, depending on my race, class, and gender, resultant in a vector of social placement and comfort; this susceptibility is only partially determined by political preferences.

As these examples show, we certainly exercise many choices in structuring our social spaces but many of our spaces are structured for us; for instance, many school children in the US today grow up in a society that is far more sharply segregated than it was in the past. They have not chosen their schoolmates based on their preferences; their mates have been chosen for them. How free then is their educational attainment and their subsequent economic and physical placement in a particular city neighborhood?

So, I would suggest that while Talisse is right in pointing to the importance of the micro-personal interaction as a basis for larger politics and political formations, it is not clear to me that this suggestion will result in the kind of democracy-or-politics-free space desired. Those spaces of micro-personal interactions will be structured by class, by race, by gender: working class black folks are going to spend, in the US, most of their personal time with other working-class black folks; and middle-class white women are going to spend their personal time with folks very much like them. Now, it is a consequence of materialist (or feminist or critical race) analysis that these kinds of class (or gender or race) placements do determine political preferences in interesting and significant ways, so in fact, it turns that even these personal spaces are politically structured. Indeed, it is not quite clear whether even in the domains of the romantic or sexual such structuring can be avoided. The activities that Talisse suggests could be made the basis of a civic friendship–mundane social activities all of them–are quite plausibly viewed as being infected thus. That is as it should be if we understand politics as a community wide movement towards a common goal, a project of inherent plurality that implicates even the minor personal interactions.  The personal is indeed political.

Anticipating Another Encounter With Books And Students

This coming fall semester promises to be a cracker: I have the usual heavy teaching load of three classes (including two four-credit classes whose lectures will be one hundred minutes long, thus making for a very exhausting Monday-Wednesday sequence of teaching running from 9:05 AM to 3:30 PM, with an hour break between the second and third class meetings); and I will be trying to make some headway on a pair of manuscripts, both due next year in May and August respectively (one project examines the Bollywood war movie and the Indian popular imagination, another conducts a philosophical examination of the Indian film director Shyam Benegal’s work.)

The three classes I will be teaching this semester are: Social Philosophy, Philosophy of Law, and Landmarks in the History of Philosophy. The following are their reading lists: the first two classes below feature my favored kind of reading assignments–pick a few select texts and read them from cover to cover; this is a slightly risky move, given that my students–and  I–might find out, together, that the text is ‘not working.’ For whatever reason; some works do not bear up well under closer inspection in a classroom, some material turns out to be tougher to teach and discuss than imagined, and so on. When it works though, a detailed and sustained examination of a philosophical work pregnant with meaning can work wonders, allowing my students and I to trace the various strands of complex arguments at leisure, drawing out their many interpretations and understandings as we do so.

Social Philosophy: 

Hannah Arendt, The Human Condition, University of Chicago Press; 2nd ed., 1998,

Herbert Marcuse, One-Dimensional Man, Routledge Classics,

Sigmund Freud, Civilization and its Discontents, W. W. Norton & Company, 1989,

Landmarks in the History of Philosophy:

William James, Pragmatism, Dover, 1995

Mary Wollstonecraft, A Vindication of the Rights of Woman, Dover, 1996,

Thomas Szaz, The Myth of Mental Illness, Harper Perennial

Philosophy of Law: 

‘The Case of the Speluncean Explorers’ by Lon Fuller (to introduce my students–briefly and vividly, hopefully–to theories of natural law, positivism, and some tenets of the interpretation of legal texts.)

HLA Hart, ‘On Primary and Secondary Rules’

Justice Oliver Wendell Holmes, ‘The Path of the Law’

David Caudill and Jay Gold, Radical Philosophy of Law

Besides these three classes, I will also be conducting an independent study with an undergraduate student on the relationship between Nietzsche’s writings and Buddhism; this promises to be especially fascinating. The following is the list of books my student and I will work through over the course of the semester:

Nietzsche and Buddhism: A Study in Nihilism and Ironic Affinities

Nietzsche and Zen: Self Overcoming Without a Self 

Nietzsche and BuddhismProlegomenon to a Comparative Study

Nietzsche and Buddhist Philosophy

Every semester, as always, brings on that same trembling anticipation: books and students and all the promises those encounters hold–the revelations, the surprises, the discoveries, the missteps. What a great way to spend one’s waking hours; I will have ample opportunities to count my blessings in the weeks that lie ahead.

Margaret Atwood’s Handmaid’s Tale And The Gilead Nationwide

I’ve read Margaret Atwood‘s The Handmaid’s Tale late; in fact, I’ve only just finished reading it–by way of preparing to watch the new television series currently being aired on Hulu–some twenty-five or so years it was first recommended to me by an ex-girlfriend (who was then an office bearer with the National Organization for Women in New Jersey.) I might have read it too late; the issues broached in Atwood’s dystopian classic of speculative fiction–the rise of a totalitarian theocracy in the US, the forcing of women into sexual and reproductive subjugation, the curtailing of women’s bodily freedoms under the guise of protecting ‘conventional’ morality, a harsh penal regime, and environmental degradation notable among them–have been at the forefront of a great deal of political and moral discourse in the intervening years. The issues Atwood philosophized about–using the literary vehicle of a novel–have had their many complexities articulated and analyzed and theorized threadbare; they are now exceedingly familiar to us. For all of that, they are not any less threatening, and it is small wonder that as the Trump Administration, aided and abetted by that cabal of nihilists, the Republican Party, continues its wrecking ball treatment of the American Republic, the novel (and its associated television series) continues to seem increasingly prescient and prophetic. Perhaps even a little too much so; at least two of my friends have informed me that they will not be reading the novel or watching the show any time soon, ‘at least as long as this administration is in office–it’s a little too real right now.’ Dystopian speculative fiction should not be too realistic, I suppose.

The problem, of course, is that Donald Trump is not the problem; the Republican Party is. The impeachment of Donald Trump would merely bring to the Oval Office Mike Pence, a drone-like creature best placed to emulate those folks who run the land of Gilead in Atwood’s novel. Moreover, Republican run state legislatures the nation over specialize in drafting and passing legislation that flirts with the codes operative in Gilead: their primary obsession has been, and will be for the foreseeable future, the control of women’s bodies, but attempts to control where and how they work and what they can read or write never seem too far behind. (To be fair, state level Republican Party leadership is always interested in controlling what everyone reads and writes.) Take a look at some of the pieces of work linked to here–a piece dating back to last year–and you’ll have a fair idea of the medievalist mindset, which would not be out of place in Gilead, that is par for the course among the Republicans of today. Matters have only worsened since the election of Donald Trump; while his antics provide a never-ending series of distractions that cause liberals to foam at the mouth and fantasize about impeachment, Republicans quietly proceed with shadow legislation–like the new version of the American Health Care Act, which is due to be voted on, apparently without being read by anyone in a position to stop it from being passed.

Gilead will not come with a bang, but with a whimper.