Critiquing The Law And Discomfort

This semester, in my philosophy of law class, my students and I have attempted to work our way through a collection of ‘critical legal studies‘ articles; these run the gamut from critical legal histories to feminist legal theory to critical race theory. The reactions of my students to these pieces, and in particular to the second and third members of the list just made note of–represented by the writings of Catharine MacKinnon and Alan Freeman respectively–has been instructive.

Feminism makes men uncomfortable; for different reasons, it also makes women uncomfortable. It induces discomfort in men by reminding them of their privileged position of power; it induces discomfort in women by reminding them of this imbalance, and sometimes, of their own complicity in maintaining it. Both these reactions were on display as we read and discussed MacKinnon in class, especially in her claim that the ‘legal point of view’ is just the ‘male point of view.’ Her discussion of rape law, and especially of how the law understands the crucial notion of ‘consent,’ brought vital aspects of her critique together; no other component of her writing, not even the infamous ‘in a patriarchal, sexist society structured by forces of masculine domination, all sex is rape’ claim, made the students as uncomfortable as this discussion; they might have realized their own implication in the critique they were reading. They might also have imagined, like most other legal subjects, that whatever the messiness and infinite complications and entanglements of human sexuality, those were all magically resolved by the cleansing antiseptic force of legal formulations, categories, and reasoning. Not so; instead, seeking refuge in law as a response to the ‘problem,’ the ‘crime,’ of rape had merely allowed for the further institutionalization and entrenchment of sexism and male prejudice, now disguised as societal reason.

Talk of racial discrimination too, especially in a society like the US, induces discomfort. It reminds some that their assumed positions of merit and power rest on shaky, morally suspect, foundations; it serves notice that a dishonorable history underwrites this supposedly glorious present. And as in feminist legal theory, it points to how a supposed dispenser of fairness and justice is instead, in point of fact, the repository and the engine of social prejudice. The rhetoric on display here is similar: a claim is made to the rational dispensation of justice, to only be guided by ‘logic’ and ‘evidence’; the results as in the case of rape law, are eerily similar: claims of racial discrimination disappear when subjected to the inspection of the legal lens; the perspective or point of view of a central actor, the ‘victim,’ is ignored. Here again, an uncomfortable silence descends over many in the classroom; a reminder has been served that the assumption of a calm working out of an impeccable meritocratic logic serves only to mask the violence done to those finding themselves stuck with the short end of the legal stick.

Sometimes my students are curious and ask about what happened to the ‘critical legal studies movement’; I respond that the discomfort they experienced as ‘mere’ legal subjects in attempting to tackle its claims would only have been a  fraction of that experienced by those on the inside: the practitioners and theoreticians of law themselves. They would have actively sought to assuage their discomfort; the institutional displacement of critical legal studies would have suggested itself as a possibly remedy.

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.

Fascism And The Irrelevance Of ‘Truth’

Yesterday, a former student wrote to me, asking for clarification on something he had read in an online discussion group:

We [Fascists] don’t think ideology is a problem that is resolved in such a way that truth is seated on a throne. But, in that case, does fighting for an ideology mean fighting for mere appearances? No doubt, unless one considers it according to its unique and efficacious psychological-historical value. The truth of an ideology lies in its capacity to set in motion our capacity for ideals and action. Its truth is absolute insofar as, living within us, it suffices to exhaust those capacities. [From: Gregory J. Kasza, “Fascism from Above? Japan’s Kakushin Right in  Comparative Perspective,” in Stein Ugelvik Larsen, ed., Fascism Outside Europe (Boulder, Colorado: Social Science Monographs, 2001)]

My student asked:

What is being implied about fascism and ideology? What is being said from “fighting for an ideology means fighting for mere appearances?” Is the author implying that to the fascist, truth cannot be unquestioned and as a result, can potentially change?

I have not been able to procure a full copy of the paper so my remarks are limited to the excerpt above. In it, the speaker/writer claims that political and theoretical struggle for the fascists is not necessarily devoted to the pursuit of truth; a clash of competing ideologies is not a clash of competing truth claims. In one sense, a battle over ideologies, over competing systems of thought, is a kind of superficial battle for ‘mere appearances’–precisely because one ideology is not clashing with another to establish itself on the grounds that it is the ‘true’ or ‘correct’ one; but this clash becomes more than just a matter of appearance when we realize that the truth value of an ideology is independent of what the author terms its ‘psychological-historical value’; that the ‘truth of an ideology’ is found in its capacity to make us act. That is what of value to the fascist, the fact that a system of thought–theory–induces praxis, that it shortens the gap between the two, that it encourages those powers within us that make us act.

For the fascist then, truth is not the most important quality of a theory; a theory could be false in the conventional sense of ‘accurately corresponding to the actual state of affairs’ and yet still be a ‘good’ theory precisely because at a particular moment in historical time, marked by very particular material, economic, and political circumstances, it is able to get one class of political and social actor ‘moving’; it is able to make real this actor’s agency; it has found, magically, the key that unlocks access to a potential actor’s world-changing capacities. Theories of politics, according to the speaker/writer above, are theories of action; their value is judged accordingly. Do they make us act? To what ends? Are they effective? If the theory is effective in making us act to bring about the desired ends, it is a ‘true’ or better still, a ‘good’ or ‘useful’ theory. (This moving past the truth of a theoretical claim to its utility is a Nietzschean maneuver, visible in–among other places–‘On Truth and Lies in a Nonmoral Sense‘ and in many passages in Beyond Good and Evil.

Critical Theory And The Supposed Post-Truth Era: The Ideological Reaction

The tools that critical theory provides enable the undermining and subversion of established structures of power–political, cultural, discursive, technical, material, governmental, architectural, scientific, moral. They expose ideological pretensions and foundations, thus making it possible to see that all that is seemingly permanent and absolute may rest on evanescence. on historical contingency and accident and luck; they enable a corrosively suspicious response to any claims to political virtue. Critical theory is subversive; it should induce a kind of vertigo of possibility, one tinged with both fear and excitement; moreover, if the kind of critical position it points to is available for all dominant systems of cultural and political and intellectual formations, then it should also induce a fierce counter-reaction to its ‘revolutionary’ possibility, a co-opting of its ‘tools’ to be used against it. That is the least you would examine of any sophisticated ideology with a track record of survival; the ability to utilize the features of its opponents to undermine it.

The current brouhaha about how postmodernism made the Donald Trump presidency possible, by clearing the decks for fake news and alternative facts and truth-free daily briefings for the White House Press Corps and Pinocchio-inspired press spokespersons, by inspiring disrespect for ‘truth’ and ‘justification,’ is part of this counter-reaction. It is perfectly predictable; when those in power are subjected to the critique that their claims carry with them their pretensions to power, that they are invested with their own selfish material interests, that their philosophies are but their autobiographies, they will use those critical tools against the critique itself.

The suggestion that tools of critical analysis, the ones used to unmask pretensions of power, are the ones used to prop up an authoritarian regime that plays fast and loose with ‘facts’ and ‘truth’ and all of the other components of a realist, respectable, scientific, naturalistic epistemology is a reactionary one; and a predictable one too. It is of a piece with all those claims that point out problems with the form and content of protests; never the right time, never making its points in the right way, or speaking at the right volume. When directed at critical theory, this reaction says that your kind of protesting, its form, its methods, its techniques have resulted in the creation of a new and deadlier political and cultural monster; cease and desist with your critical analysis at once. It suggests that our tools are being used against us; we should lay them down at once; we should exert no other form of critical analysis to help us make political, cultural, or epistemic judgments. We should have known all along what was coming at the terminus of this ‘critique’: the claim that power in place should not be criticized, that critique has gone bad.

The perfect predictability of this ideological maneuver makes its deployment unsurprising; the personnel recruited for it–philosophers and journalists–are also the expected ones. Their easy acquiescence might be a little worrisome, of course, but all kinds of resistance breaks down when power comes calling.

The Supposed Heritability Of Religion And Nationality

I am, supposedly, ‘Hindu’; my wife is similarly ‘Muslim.’ The scare quotes are there because we both regard our supposed ‘religious identities’ as ambiguous; we are not observant, but we were born into Hindu and Muslim families, and thus raised and acculturated into certain norms and cultural rites of passage–and their associated loyalties. (Such loose identification comes a little easier to me as the supposed object of my affiliation is, at best, quite idiosyncratically defined.) Moreover, most importantly, this is how the ‘rest of the world’ identifies us; bureaucratic form-filling forces into certain templates; our names seem to proclaim, quite loudly, our religious affiliations. This identification proceeds, inexorably, by its own inner logic to the small matter of our child, our four-year old daughter: sometimes we are asked, in tones that indicate the appropriate grave import of the query, how we will ‘raise’ her, by the dictates of which religion. And sometimes, she will be referred to as ‘half-Muslim, half-Hindu.’

This past week, I met an old friend of mine from graduate school; he is Australian, his wife is English; they have two teen-aged sons, born and brought up in England, but raised as passionate supporters of Australia in all matters sporting, cricketing or otherwise. Unsurprisingly, they love bantering with their mother about their unambiguous dislike for the English in those same domains. During my conversation with them, as we discussed their favorite cricket players, their mother protested–only semi-seriously–that they were ‘half-English’ and thus, not appropriately loyal to one of their ‘homelands.’ Her boys said they were ‘all Australian.’

Religion and nationality are too easily supposed heritable, natural kinds of sorts. As these descriptions–serious and semi-serious alike–indicate, so definitive of our identities, so fundamental, so constitutive, are these affiliations supposed to be that we inherit them, along with our genomic codes from our parents. The query, ‘what are you?’ can only be answered in two ways: you indicate your religion or your indicate your nationality. If you are an atheist or a Palestinian, you are out of luck in answering this query. (The related query, ‘where are you from,’ does not literally inquire into place of residence or place of birth; it means, instead, ‘what is your ethnic background–whether you claim it as your identity or not’?) We do not imagine other kinds of affiliations to be similarly heritable; the children of anarchist or libertarian couples are not considered to have inherited their parents’ political inclinations in quite the same way; the children of couples with differing political beliefs are not considered hybrids. I would love for this to be the case; it would certainly ease one of my many irrational parenting anxieties.

It is part of the success of the ideology of religion and nationalism that they have elevated themselves to the status of heritable qualities and attributes; the branding begins early and it is facilitated and supported at life’s many stages and turns by an elaborate infrastructure of language and description and social behavioral response. We all comply; we are conditioned to.


The Defenses Of United Airlines’ Behavior Reveal Some Uncomfortable Truths

There are, roughly, two kinds of defenses offered of United Airlines’ behavior–in DraggingGate–that have been offered thus far. First, the ‘abide by the terms of the contract’ defense. Second, the ‘just shut up and obey orders, and everything will be allright’ defense. On closer inspection, of course, these two turn out to be instantiations of the same abstract concept: bow down to authority, legal or penal, and all will be fine. But for the time being, let us take a closer look at them separately.

The first defense, which bids us to ‘quit complaining because you know what you signed up for’ is especially fascinating. This defense demands that we surrender all notions, all norms, of social good-will to the obtuse, deliberately disguised, terms of a contract. With probability one, it can be surmised that the person offering this defense has never read the fine print of the many, many, contracts that regulate his or her life. The libertarian paradise of a world in which the government only exists to enforce contracts entered ‘freely into’ by various contractors seems a rather bizarre one when we realize that most contracts are unreadable by almost anyone lacking a legal education; moreover, many of those contracts contain terms that are ‘unconscionable,’ buried deep in some sub-clause somewhere. As I’ve noted elsewhere, misery needs company: I’m bound by contracts I find incomprehensible, whose terms are ‘forced’ upon me; so everyone else should be; there is no ‘fellowship’ of citizens or consumers here.

The second defense is exceedingly familiar. It is the one trotted out by defenders of the police whenever there is an instance of police misbehavior. Most offensively, it makes an appearance when the police have just performed an execution of a recalcitrant citizen, one who did not raise his hands in time, or perhaps spoke back insolently. If any injury ensues to a citizen–fatal or otherwise–well, too bad. Once a citizen has refused to comply with orders, all force, including its deadly variants can now be exerted to make the citizen bow down. Disobedience is a sin; one worthy of capital punishment if need be.

The recurring appearance of these sophistical arguments in the American polity is revealing. Why are ‘shut up and obey orders’ and ‘you should know enough legalese so that you can negotiate every single transaction you enter into your life’ held up as exemplars in ‘the land of the free and the home of the brave’? This regulated life–by contractual terms, by penal authority–seems a particularly grim realization of the American dream. DraggingGate reminds us too that the so-called ‘free market’ in aviation works because all airlines offer equally appalling service in a world where airline travel has become indispensable for business and personal affairs. Soon, we will have to fly; and we will find our restricted choices leading us back to United Airlines. (Why not open up the US market to Asian airlines?) Remarkably, not one passenger on the flight stood up to intervene; they all knew the consequences. They would either be thrown off the flight themselves–thus suffering ‘inconvenience’–or they would be arrested. They too, complied. As all those who defend United Airlines would have us do.

Perhaps we are, as Nietzsche worried, desperate to find other forms of authority–now that the religious  has been partially displaced–to rule over us; perhaps those exerting their wills in resistance to the strictures of contract law and the police remind us that we are living lives of subservience ourselves. We are authority’s minions; we do as we are told; so should everyone else.

A Modest Proposal To Cull The Human Herd

Feeding the elderly and the young i.e., the economically unproductive, is a terribly wasteful, irrational enterprise–programs like Meals on Wheels and after-school lunches are but the most glaring instances of this catastrophically misdirected act of charity; acts like these will never produce any tangible, meaningful results like an increase in the Gross Domestic Product or the Gross National Product, indeed, the Gross Product of anything whatsoever. The elderly and the young merely consume resources, among which is the most valuable of all, the time and attention of those who could be otherwise engaged in more useful and productive endeavors–all of which may be located in those zones of virtue and redemption, the workspace and the office of the corporation (not the public sector enterprise.) Parents all too often have to turn their eyes away from useful work to attend to the plaintive cries of their useless children, while on the other end of the age spectrum, those same workers have to minister to their useless parents, who continue to occupy space, drink drinking water, eat edible food, and contribute to this planet’s terrible climate change situation by increasing our atmosphere’s carbon dioxide content. Children can at least be mildly amusing, while the elderly are anything but. Enough is enough; our civilization is at a genuine point of crisis.

Any strategy to ameliorate this state of affairs must begin with a recognition of our fundamental human nature: we are individuals, first and foremost. We are born free, radically independent of family and home and state; we die free, hopefully alone, all by ourselves. We take care of ourselves from the moment of our birth, tending to our needs with rugged solitary enterprise; we disdain the helping hand at every step. We feed ourselves, we clean ourselves, we clothe ourselves; we are pioneers of the spirit, heart, and mind. The company of other human beings is always an irritation, one only tolerated in our recognition of them as potential future consumers for the goods we will try to sell them at some point in the future.  The care of others is a burden; we need little care as we grow up, and indeed receive none, so why should we extend our care outwards? We were left by the wayside at birth; so must we do to others.

Faced with these incontrovertible facts about ourselves, a simple plan of action suggests itself for dealing with the problem of the too-young and the too-old: a gentle but firm shove over the edge. No more bleating for attention from the children; no more calls for assistance from the elderly. A population made up entirely of working-age adults is an economist’s delight; it should be our aspirational ideal, guiding our social and economic policies at every step; it should inform the moral instruction we provide to our, each other. The qualms we might feel as we prepare to enact this policy are merely the vestiges of an archaic sensibility, one that must bow its head before the relentless logic of the economic enterprise, and the moral demands it places upon us.