Issuu on Google+

Twin Cities Review of Political Philosophy

Volume 1 Summer 2011

FEATURING: Self-Reflexive Social Epistemic Norms Robert B. Talisse, Vanderbilt University

...1

"In my 2009 book, Democracy and Moral Conflict, I develop a distinctively epistemological account ofwhy citizens should sustain their democratic commitments even in cases where a democratic decision must strike them as seriously objectionable or even intolerable. The thought that our best reasons for endorsing a democratic political order may be epistemological rather than moral has proven a bit hard to swallow for some political theorists. I admit my thesis is striking. But I also think it correct."

Status Updates

Joshua A. Miller, Morgan State University

...10

" The Honor Code is smart, engaging, and thought provoking, and people interested in the themes he discusses should buy and read it...Now for the criticism: though rigorous and humanistic, Appiah’s thesis is misleading. Part ofthis is stylistic: he introduces the vagaries and tensions within honor through a set of historical and contemporary examples, but it’s not until the end that he spells out his own commitments and the conceptual distinctions that motivated his project. That means it is not until the end that we are able to see the role he wants honor to play in normative appraisals ofinjustice."

The Environmental Law Death Watch James McNamara, JD

...19

"What I hope to add is a summary ofthe legal and political context in which this struggle for environmental sanity is taking place. As a lawyer by training, I will focus on the legal doctrines that have developed in the courtroom, but I will briefly address the remainder ofgovernment as well. Environmental law does not take place just within the judiciary. Rather, it is a product ofall three branches ofgovernment and the public acting in concert. For those not following closely, the way our federal government has dealt with environmental law–mostly with public acquiescence–might prove as harrowing as the environmental facts themselves. For the time being, environmental law is near death."


Copyright2011, minnIDEA

EDITORIAL B OARD

Brianne Reeves

This work is licensed under a Creative Commons AttributionNonCommercial-NoDerivs 3.0 Unported License. Full License is here. Do not violate any terms ofthe license without express, written agreement from the publisher.

University ofSaint Thomas '12 Student Editor-in-Chief Spring 2011

ISSN Issued by United States Library ofCongress: Electronic ISSN #2162-2280

University ofSaint Thomas '10 Student Editor-in-Chief Fall 2010

Published in Saint Paul, Minnesota. For questions, write to: tcreview@minnidea.org.

Danielle Legatt

Nicholas Sideras

University ofSaint Thomas '12 Student Editor

Mychal Vlatkovich

University ofSaint Thomas '11 Student Editor

Steven Maloney

University ofSaint Thomas Political Science Faculty Advisor


CONTENTS ACKNOWLEDGMENTS:

iii

TO O UR READERS:

iv

EXPERT HELP I: Nietzsche's "Eternal Return"

24

POLITICAL THOUGHT IN HISTORY: Kant & Foucault on "What is Enlightenment?"

27

EXPERT HELP II: Hannah Arendt's "World Alienation"

31

S TUDENT ESSAYS: Why Non-Egoistic Individuals Would Vote Rationally

Benjamin Cogan

35

The Maximin Criterion in Rawls' Theory ofJustice

Iona-Elena Oană

40

Aaron Sinner

44

Katelyn Abraham

52

Storm Patterson

57

Alyssa Bauer

60

Nicholas Sideras

68

Placing Prerogrative Outside the Constitution Aristotle's Polity and the Role ofFriendship Hobbes and Psycholgical Egoism The Shared Good We Seek: The Communitarian Perspective ofIntergenerational Justice The Dictatorial Power ofthe Masses: Reconciling Deliberative Democracy with the Sovereign TC REVIEW READER:

Women and Politics

74

S UBMISSION GUIDELINES FOR TC REVIEW

75


Acknowledgments The staffwould like to thank everyone who contributed to making this publication possible. Contributors to this issue have volunteered their time and intellectual efforts to a journal that was merely an idea at the time they were asked for assistance. While we will no doubt be grateful to future issue contributors, those future contributors shall at least have the benefit oflooking at this issue and seeing that the Twin Cities Review ofPolitical Philosophy does, in fact, exist. Our review owes its existence to the personal and institutional support ofthe greater Twin Cities’ academic community. We thank the Minnesota Political Science Association for helping advertise the Review during last year’s annual meeting and giving this Review’s umbrella consortium, minnIDEA an opportunity to host a panel presentation. In addition, we are grateful to every faculty member who distributed our first call for undergraduate papers. We particularly highlight the support ofJill Locke of Gustavus Adolphus College, Joe Peschek ofHamline University, and James Read ofthe College Saint Benedict/Saint John’s University. The University ofSaint Thomas community has provided the backbone for our effort, and the assistance and advice ofSteven Hatting, Angela High-Pippert and Steven Hoffman has been invaluable to us all. We would also like to acknowledge the professional support ofChris Igielski and the information technology support ofCharlie Schuman. Through the internet, we received a global answer to our call for undergraduate papers, and we would like to thank Public Reason’s online community for sharing our call for papers and the community’s positive response.


To Our Readers This review was created in the spirit ofcautious optimism. Digital content can provide access to political theory’s most substantial contributions in the hands ofmore people at little to no cost. Once an activity of only the highest ofsocial classes, students from the around the world study political theory in numbers only dreamt ofduring the times ofpolitical theory’s classical texts. Further, this explosion is happening while the polarity ofdisciplines in the social sciences seems to be reversing. Rather than drifting further apart, the study ofthe human brain, the human body, epistemology, social behavior and organization, and the material world are converging and charting a mutually-reinforcing path towards improving the stock ofhuman understanding. These trends present political theorists with an opportunity to engage in the process ofteaching and learning like never before. Now for the caution: political theory is a field ofstudy ofnear-limitless depths. As one ofmy teachers in graduate school once told me, “to be qualified as a political theorist, one must be well acquainted with the knowledge of everything." Most ofour students have a passing interaction with political theory. Many ofour students are at colleges and universities that have only one faculty member who does political theory in particular, and those who teach and research in related areas ofstudy are scattered about academic departments. Political theory is a subject ofintimidating size, which students and teachers are asked to attack with limited resources. Political theory is hard. There is no masking this and the only means ofsugar-coating this is to push ideology, which is the very disease our work is trying to cure. In these weeds, political theory struggles to perform its threefold tasks of: improving the stock of theoretical knowledge, transmitting this stock ofknowledge to others and developing the cognitive abilities ofthose who take up our discipline. We have assembled this review with these thoughts and concerns as our guideposts. The Twin Cities Review ofPolitical Philosophy results from volunteer efforts by authors and editors alike. What you see in the pages that follow are contributions from undergraduate students, graduate students, university professors, and former political theory majors who have taken what they have learned into the wider world. Most academic journals are created to report improvements in our knowledge from professional academics to other professional academics. This review (which we call TC Review in-house when interested in brevity) is predicated on a different model. We believe that digital media can provide students ofpolitical theory a periodical where they can read serious-minded creations and benefit from such an exchange. Ifyou are a faculty member, we hope that our review might provide new ideas for teaching certain topics, a sense ofour ambitious students’ thoughts and interests, and that future issues might provide you with a means to encourage your own best students to polish up that pretty-good theory paper because there is a journal interested in publishing that sort ofthing. Ifyou are a student, we hope our review renders the field ofpolitical theory more inviting and manageable as well as provides a broader community than your individual college or university experience might be able to offer alone.


The Twin Cities Review ofPolitical Philosophy is meant to showcase students’ commitment, as well as that of scholars and practitioners from the greater Minneapolis-Saint Paul area, to building a political theory community that profits from the causes for optimism and cautiously advances. With the TC Review, we invite the larger political theory community to join us. You will see contributions in this review that are local, national, and international. But make no mistake, we are not intent on using these pages to host the entire political theory community, top-to-bottom, just for the sake ofinclusiveness. We have, guided by an optimistic spirit, believed that we could create a review that was inclusive, substantive and readable. And free. Ifin today’s world, Livy’s History ofRome is available to the entire English-speaking world at no cost, we dare not charge either.

S TEVEN MALONEY

Faculty Advisor University ofSaint Thomas


Self-Reflexive Social Epistemic Norms Robert B. Talisse Vanderbilt University

In my 2009 book, Democracy and Moral Conflict, I develop a distinctively epistemological account ofwhy citizens should sustain their democratic commitments even in cases where a democratic decision must strike them as seriously objectionable or even intolerable. The thought that our best reasons for endorsing a democratic political order may be epistemological rather than moral has proven a bit hard to swallow for some political theorists. I admit my thesis is striking. But I also think it correct. In this paper, I want to sketch the basic argument and then examine a criticism it frequently occasions. My response to this criticism invokes the idea ofa self-reflexive social epistemic norm. These norms are such that part of what it is to uphold or enact them is to stand prepared to address challenges to the effect that they have not been properly upheld or enacted.

I. The Problem ofJustification When political philosophers ask whether there is a “philosophical justification for democracy,” they are most frequently concerned with one oftwo distinct queries. The first has to do with the relative merits of democracy as compared to other possible regimes. What reason have we to establish a democracy, rather than some other kind ofregime? This task is familiar to readers ofPlato and Aristotle: the virtues and vices ofvarious regimes are considered, and then a judgment is offered with respect to where democracy ranks on a scale ofbest to worst. Those who pursue this line ofinquiry can often be found mixing ideal and non-ideal considerations, as when Plato compares this-world democracy with ideal-world monarchy. The second query has to do with the moral binding-ness ofdemocratic outcomes. Central to this line of investigation is the question ofwhether there is ever a duty to obey the law. The democrat here is opposed to the philosophical anarchist; and both parties seem to agree that non-democratic regimes clearly are not authoritative. The question, then, is whether democracy is sufficient for authoritative collective decisions. But there is a third query we may be engaging when we’re looking for “philosophical foundations of democracy,” a query less often taken up in the literature. It is this: What reason can be given to democratic citizens to pursue democratic means ofsocial change when they are confronted with a democratically-produced result which seems to them grossly mistaken and perhaps intolerable? This query is not aimed at giving reasons to establish a democracy or to obey the law; rather it attempts to devise reasons for sustaining democratic commitments in light ofseriously flawed collective decision. To help focus the issue, we might put the question this way: When democracy decides, someone loses; ifyou lose and the loss is especially significant; why not give up on democracy? Why not pursue nondemocratic (or even anti-democratic) means ofgetting what you want?


2

Robert B. Talisse

Now, this way ofputting the question is surely too coarse. Ifthe worry were simply that some people will not get what they want, we could dismiss it. Life involves disappointments, and mature adults must reconcile themselves to this fact. The problem emerges from two features ofcontemporary liberal democracy. First is what Rawls (2005) identified as the “fact ofreasonable pluralism,” which is the fact that the liberties and rights secured in a liberal democracy give rise to a pluralism ofmoral, religious, and philosophical doctrines that are consistent with liberal democracy yet inconsistent with each other. The second feature is that many ofthe questions ofsocial policy we face involve more than the desires and preferences ofcitizens; they invoke our deepest moral commitments—our fundamental conceptions of justice, dignity, sanctity, and freedom. This is especially evident in the United States today, where debates over nearly every major policy controversy—abortion, healthcare, same-sex marriage, stem-cell research, the biology curriculum—without fail invoke deep moral commitments. To take only the most obvious example: one side ofthe abortion controversy claims that abortion is morally equivalent to murder; they claim that legal abortion is an American holocaust. The other side of the debate holds that legal restrictions on abortion place intolerable constraints on privacy and violate equality. On both sides, part ofwhat’s at issue is the government’s claim to legitimacy. One side says that no government that permits the murder ofinnocent people can be legitimate; the other says that a government that seeks to control the bodies ofhalfofits citizens is illegitimate. Each side thinks that government loses its claim to legitimacy unless it enacts its favored policy, and it is difficult to see how there could be a compromise position. Yet, some policy must be decided. So, democratic governments must enact an abortion policy which will lead some segment ofits population to regard it not only as mistaken about abortion, but illegitimate. When confronted with what they regard as a legitimacy-defeating policy, citizens must decide what to do. The mere fact that the government has enacted a morally unacceptable policy is not sufficient for justifying violent rebellion. We tend to think that except for the most egregious moral errors, democratic citizens have an obligation to attempt to pursue democratic means ofcorrection. But why should they? Typical answers on offer from democratic theorists identify some moral desideratum said to be uniquely or best satisfied by democracy, and then argue that the importance ofrealizing this desideratum outweighs the badness ofthe legitimacy-defeating policy. On the most common version ofthis view, that democratic processes instantiate a kind ofequality is offered as a reason to sustain democratic commitments. But since we are thinking ofcases which invoke our deepest moral commitments, it seems that an appeal to some moral value such as equality is unlikely to succeed. Why should equality trump, say, the protection ofinnocent lives? Another common answer provides a decidedly prudential reason for upholding democratic commitments. It is said that upholding democratic commitments is necessary in order to keep peace. Democracy replaces bullets with ballots; it is, the theory runs, civil war by other means. But this reply is not sufficient. After all, ifwe’re fighting a civil war, why not employ the more usual means? Why should a pro-life activist accept a description ofthe status quo as one ofpeace at all? Why should maintaining peace be taken to be more important than standing up for what’s right, come what may?


Self-Reflexive Social Epistemic Norms

3

To help clarify matters, let us return to our admittedly overused example. For many US citizens, the overturn of Roe v. Wade would represent a serious lapse in democracy’s legitimacy, and would undoubtedly incite a variety ofresponses. Here are the main lines ofresponse that are available: Relocation. Relocate to a country in which the desired rights and policies are in place. Rebellion. Engage in acts ofuncivil disobedience, including violence, threats, riots, destruction

ofproperty, unlawful protest, terrorism, and so on, and resist legal punishment for crimes.

Civil Disobedience. Resist and engage in protest within circumscribed moral constraints, but

publicly and openly disobey the law, and willingly accept legal punishment for crimes.

Petition. Obey the law, but engage in all available legal measures to effect a change in the law,

including: voting, campaigning, lawful protest, lobbying, consciousness-raising, coalitionbuilding, public criticism, debate, activism, and so on.

I trust that it is clear that Civil Disobedience and Petition represent democratic responses, whereas Relocation and Rebellion do not. Ofthe non-democratic options, Relocation is typically morally superior to Rebellion, though it should be noted that Relocation is not open to all citizens, and under certain conditions may not be open to any. Furthermore, it should be noted that Relocation raises additional moral difficulties concerning the conditions under which it would be immoral for a citizen ofone country to relocate to another. It also bears mention that there may be some cases in which the only morally permissible option other than Relocation is Petition; that is, there may be cases oflegitimate complaint in which Civil Disobedience is not morally available. We need not dwell on these and related complications. Our question, then, is why our imagined pro-choice citizen should pursue Civil Disobedience and Petition rather than Relocation or Rebellion. Put otherwise, why should a citizen who sincerely believes that a given democratic outcome violates a basic and necessary condition for political legitimacy nonetheless sustain his or her commitment to democratic means to social change? Under such conditions, why not pursue nondemocratic means to one’s political ends? Many citizens will give the prudentialist answer: one should sustain democratic commitments, even in cases oflapsed legitimacy, because the cost of Rebellion is too high. But, again, this answer offers a reason ofthe wrong kind. We are not concerned with the question ofwhy it would be prudent or instrumentally rational for citizens to not rebel, but with the question ofwhy citizens morally ought to pursue democratic means to their political ends. For it is natural to think that Rebellion is morally justified only when no democratic option is available, such as when the political order is democratic in name only, or not democratic at all. But what justifies this thought? In his classic book, Exit, Voice, and Loyalty (1970) Albert Hirschman reasoned that when individuals are

disappointed by the performance ofan institution that is supposed to serve them, they have two options. First, they may exit, that is, they may withdraw from the institution and take their business elsewhere, so to speak. To return to our categories above, both relocation and rebellion are forms ofexit. Second, they may exercise voice, that is, they may sustain their relationship with the institution in question, but


4

Robert B. Talisse

voice their dissatisfactions with the expectation that service will consequently improve. Petition and civil disobedience are forms ofdemocratic voice. Hirschman thought that voice is crucial to the maintenance and improvement ofinstitutions; hence he held that institutions need to discourage exit if possible. He further reasoned that exit is discouraged, and voice encouraged, ifinstitutions can nurture a sense of loyalty among their members. Consequently, Hirschman argued that loyalty was crucial to the success ofinstitutions ofalmost every kind, from firms, businesses, and clubs to governments and, indeed, entire societies. Hirschman’s framework is too simplistic to capture precisely the phenomena we’re interested in, but suffices for our present purposes. Let’s grant that loyalty is the key to encouraging voice and discouraging exit. However, in modern democracies, citizens are not required to share common moral or religious loyalties. In fact, we might say that widespread-shared loyalties to common moral and religious essentials should not be a desideratum, or even an ideal, ofany properly democratic order. In any case, Rawlsian pluralism seems to be a present and persistent feature ofmodern democracy. Therefore, citizens not only do not share common loyalties, but in fact maintain conflicting and opposed loyalties. And so the problem ofjustification consists, then, in preserving the voice option among citizens who are divided at the level offundamental loyalties.

II. The Epistemological Argument Sketched The moral and prudential approaches to the problem ofjustification are not likely to succeed. The strategy I propose offers epistemological reasons to uphold democratic commitments even in the face of serious error. The argument begins from what might be called first-personal norms ofepistemic assessment. Start with assessments instantiating Moore’s Paradox (Moore 1993): (1)

I believe that p, but p is false.

To assess yourselfas believing what is false is typically to dissolve the belief; for the falsity ofp is, as Williams noted, a “fatal objection” to the beliefthat p, no matter what the content. In short, beliefs aim at truth. Consequently, there is a normativity that is internal to believing. From this core norm oftruth-aspiration, two other norms emerge. Consider an assessment like this: (2)

I believe that p, but all ofmy evidence counts against p.

The way we try to satisfy the truth-aspiration norm ofbeliefis by believing in accordance with our evidence. Ofcourse, the assessment that one believes against one’s evidence does not result in the dissolution ofthe belief. The truth-aspiration norm is stronger than the evidence-tracking norm. But still, assessments like (2) are signals ofepistemic failure. When we discover that our evidence counts decisively against our belief, we typically feel the need to take action: we revise, reformulate, rationalize, or self-deceive.


Self-Reflexive Social Epistemic Norms

5

We can identify a closely related norm ofevidence-responsiveness. Consider the following assessment: (3)

I believe that p, but my evidence favors neither p nor not-p.

Again, to assess one’s beliefin this way is typically to come to regard the beliefas unhealthy and in need ofattention. We want our beliefs not only to not contradict our evidence, but also to respond to the evidence we have. Pulling norms (2) and (3) together, we can say that a kind ofmodest evidentialism is internal to beliefas such. To be sure, evidentialism is a controversial view in epistemology; however, modest evidentialism seems hardly objectionable. It simply says that when we believe, we typically take ourselves to have satisfied the norms ofevidence-tracking and evidence-responsiveness. When we assess ourselves as failing to satisfy these norms, we take ourselves to have fallen short ofour epistemic goals. Admitting this much need not commit us to any stronger principles concerning belief-suspension and the like. I hope that these first-personal epistemic norms strike you as unobjectionable and commonplace, perhaps even philosophically uninteresting. For nothing I’ve said thus far entails anything vis-à-vis the central debates in epistemology: internalists, externalists, contextualists, foundationalists, coherentists, and the like can, I think, agree to everything I’ve said. One can admit the internal norms oftruth and modest evidentialism without incurring any specific commitments about knowledge or justification. Things get interesting, though, once we consider that these first-personal norms implicate what we might call social-epistemic norms. That is, the modest evidentialist norms point us in the direction of sharing and exchanging our evidence with others. Our beliefs are frequently the products ofour interactions with others; given the limitations ofour individual cognitive resources, we must depend on others for information, including reasons and evidence. And in the course ofgathering and evaluating our evidence, we inevitably come to realize that others disagree with our beliefs. We say, then, that there are certain dialectical norms associated with belief. To see this, consider the following assessments: (4) (5) (6) (7)

On the basis ofmy very limited evidential set, I believe that p. I believe that p, but have never consulted those who deny p and have no idea why they reject p. I believe that p, but whenever I engage with those who reject p, I find my reasons come up short. I believe that p, but I cannot answer objections to p, and do not know how to account for the most compelling evidence against p.

Assessments (4) through (7) signal different degrees ofepistemic failure. Surely any ofthese assessments is consistent with sustaining the beliefthat p. However, we can put the differences aside, because once we assess ourselves as not having an adequate grasp ofthe available evidence pertaining to p—or having only a limited command ofthe reasons that speak in favor of p—it is difficult to assess ourselves as satisfying the modest evidentialist norms noted above. Insofar as we aim to believe in accordance with our evidence, we aim to believe in accordance with all the evidence we have; and this requires us to take


6

Robert B. Talisse

seriously the reasons and arguments ofthose with whom we disagree. Accordingly, when we find ourselves unable to respond to objections or account for counter-evidence, we assess our beliefas deficient; unless we can successfully revise, reformulate, rationalize, or dismiss, our beliefis jeopardized. Some degree ofdialectical success is necessary for epistemic success. Our first-personal norms entail dialectical social epistemic norms. Similar considerations give rise to social epistemic norms that are institutional rather than dialectical. Consider assessments such as these: (8)

I believe that p, but all evidence against p has been suppressed.

(9)

I believe that p, but all information pertaining to p has been carefully vetted by the Minister ofInformation.

(10)

I believe that p, but opponents of p have been imprisoned or intimidated into silence.

In order to assess ourselves as having formed our beliefs properly, we have to be able to assess ourselves as functioning within a cognitive environment that is not systematically distorted. Accordingly, the firstpersonal epistemic norms entail institutional norms offree expression, open inquiry, freedom of information, and protected dissent. With a little more work, we can build social epistemic cases for further institutional norms, including freedom ofthe press, compulsory public education, and government provisions for the protection ofpublic space. There may also be social-epistemic arguments for government support for the arts and progressive taxation, though I will not explore this here. The point is that first-personal epistemic norms give us compelling reason to endorse a range ofsocial institutions that are characteristic ofliberal democracy. And this provides a solution to the problem of justification. Recall that the problem is that ofgiving citizens reasons to maintain democratic commitments (including a commitment to democratic voice as the primary means ofsocial change) in light ofpolicy outcomes and collective decisions that seem to them to be morally intolerable. It is important to note that what gives rise to this problem is our concern to see public policy and collective decision reflect what we regard as the moral truth (or at least not reflect what we take to be false). Pro-life activists are conflicted because they take their view concerning the morality ofabortion to be correct; those who advocate for marriage equality take standing laws against same-sex marriage to reflect a moral error. The depth ofthese conflicts is parasitic on the judgment ofthe conflicting parties that their own position comports best with a proper evaluation ofthe evidence. But, as we have seen, these second-order judgments implicate dialectical and institutional social epistemic norms that can be realized only under liberal democratic political conditions. So those who want to see public policy and collective decision adequately reflect the best beliefs about morality should uphold democratic political conditions. Our commitment to sound believing and proper epistemic practice entails a commitment to a democratic social order. To draw upon the Hirschmanian language: our loyalties to our own deepest beliefs provide compelling reasons to engage voice rather than exit.


Self-Reflexive Social Epistemic Norms

7

III. A Challenge So there is the epistemic argument in a nutshell. Ofcourse, many more details would have to be introduced in order to make the view compelling. I leave this task aside, opting instead to work through a specific kind ofchallenge to the view. The challenge runs as follows: the epistemic argument at best makes a case for the “Open Society—a freethinking, tolerant, and open-minded society ofinquirers. But the Open Society is not necessarily a liberal democracy. A monarch might allow free inquiry to flourish, and could even consult his subjects on matters ofmoral importance, yet still rule as king. In short, there is nothing decidedly democratic about the epistemic argument. It offers no justification for universal suffrage, or political equality, or government accountability. Yet these norms are essential to a democracy. So, at best the epistemic argument gives us good reasons to favor social conditions under which a reliable social epistemic system could flourish, but that is consistent with epistemic oligarchy, or some other form of rule-by-experts.

IV. A Response: Self-Reflexive Social Epistemic Norms The challenge just stated should sound familiar to any student ofdemocratic theory. It enjoys a distinguished pedigree going back to Plato, and it is especially forceful against conceptions ofdemocracy that feature an epistemic dimension. Accordingly, there is a stock response on behalfofdemocracy. The stock response calls to mind the dangers ofrule by experts, usually citing historical examples ofsuch arrangements going bad. This is then supplemented with a word about shoes that pinch and how power corrupts. The ultimate result is some version ofChurchill’s quip about how democracy is the worst form ofgovernment, except for all the others. The Lippmann / Dewey debate follows this pattern and is typical. To be sure, there are contexts in which practical arguments ofthis kind should carry the day. But it seems to me that in the present context, the practical argument is especially ineffective. So I want to see ifthe epistemic argument can go all the way, as it were. I want to see ifit could produce a case for decidedly democratic political norms, like political equality and voting. As I mentioned at the beginning ofthe paper, I think the key for getting from Open Society norms to democratic norms lies in the concept of self-reflexive social epistemic norms. The idea is, I think, intuitive: we aim at truth by aiming to follow our best evidence. But the task offollowing our best evidence confronts us with fact ofour unavoidable epistemic dependence on other individuals and on social institutions. When our epistemic dependence is embedded within a well-functioning social epistemic system, great stores ofinformation are available to individuals that would otherwise be inaccessible. However, like all dependence, epistemic dependence involves risks: we could depend on a dysfunctional social epistemic system. Again, in order to assess ourselves as satisfying the first-personal norms, we must be able to assess ourselves as forming our beliefs within a reliable social epistemic system. But in order to be able to assess our social epistemic system as reliable, we have to be able to see it as self-monitoring and selfcorrecting; that is, a reliable social epistemic system is one in which various kinds ofbreakdown can be detected, diagnosed, and eventually corrected. I propose that certain social epistemic norms contain this self-reflexive component: the norm itselfdemands that space be kept open for its own examination and critique. The democratic institutional norms—political equality, rule oflaw, universal suffrage, regular


8

Robert B. Talisse

elections, the like—are the political mechanisms by which the self-reflexivity ofthe Open Society norms can be enacted. We uphold democratic political norms because these are required by the selfreflexive component ofthe Open Society norms: we need democracy in order to monitor and correct our social epistemic system. I have moved too quickly. Consider the Open Society norm offree speech. It seems to me that part of what it is to uphold this norm is to be ready to permit challenges to the effect that the norm has not been properly enacted or satisfied. That is, to silence a challenge to existing practices and institutions by which free speech is protected is to violate the norm. A similar thought applies to norms ofpolitical equality. To dismiss a challenge to existing arrangements as insufficiently egalitarian is to violate political equality. Ofcourse, the claim is not that all challenges to standing practices must be heeded or implemented. Some challenges to current ways ofrealizing equality are misguided. The point rather is that part ofwhat it is to uphold the norm ofpolitical equality is to uphold a system by which the implementation ofthat norm can be evaluated and criticized. To reject this is to violate the norm—it is to say that the concerns and criticisms ofsome citizens need not be attended to. The result is that in order to satisfy the Open Society norms, there must be political institutions and practices in place that monitor and sustain the conditions necessary for the satisfaction ofthose norms. This in turn requires political institutions and agents to be responsive to challenges and sensitive to problems and breakdowns within the social epistemic system. In short, the satisfaction ofthe Open Society norms requires representative and accountable political institutions. Imagine a Platonic monarch who in fact sustains a reliable social epistemic system, which he consults when ruling; suppose further that he rules well and that his policies generally reflect highly competent reasoning in light ofthe available facts. The Platonic kingdom nonetheless fails to satisfy the firstpersonal epistemic norms because it provides no mechanism by which his subjects could assure themselves ofthe reliability ofthe system, it is not accountable to their concerns. To see why this is objectionable from the first-personal epistemic point ofview, consider the following assessments: (11) (12)

I believe I am functioning within a well-ordered social epistemic system, but I have no reason to believe that I am. I believe that I am functioning within a well-ordered social epistemic system, but should I come to discover some reason to believe the system to be dysfunctional, there are no mechanisms by which I could press for corrective measures.

It seems to me that in the absence ofaccountable political institutions, which are able to monitor the social epistemic system, I cannot assess myselfas successfully satisfying the epistemic norms internal to belief. Consequently, the connection between Open Society norms and democratic political norms is not merely instrumental, but conceptual. Open Society norms require political institutions by which they can be monitored and sustained.


9

Self-Reflexive Social Epistemic Norms

ROBERT TALISSE is a professor ofPhilosophy at Vanderbilt University. His book, Democracy and Moral Conflict, has been nominated for the 2011 American Philosophical Association Book Prize. He has recently released a new book, Reasonable Atheism: A Moral Case for Respectful Disbelief, with Scott Aikin of

Vanderbilt University.

Works Cited Hirschman, Albert. 1970. Exit, Voice, and Loyalty. Cambridge: Harvard University Press. Moore, G. E. 1993. “Moore’s Paradox.” In G. E. Moore:Selected Writings. Thomas Baldwin, ed. New York: Routledge. Rawls, John. 2005. Political Liberalism. Expanded Edition. New York: Columbia University Press. Talisse, Robert B. 2009. Democracy and Moral Conflict. Cambridge: Cambridge University Press.


Status Updates

Joshua A. Miller Morgan State University In his new book, The Honor Code: How Moral Revolutions Happen (2010b), the philosopher Kwame Anthony Appiah chronicles how the concept ofhonor has been crucial in the fight against immoral practices like dueling, foot-binding, and the Atlantic slave trade. In his press junket to promote the book, Appiah discussed honor, moral revolutions (2010a), and the condemnation offuture generations (2010c). Let me start with some earned praise: Appiah writes beautifully and provocatively. He seamlessly melds literature, history, experimental data, classic texts, and rigorous conceptual analysis to produce a book of contemporary relevance--accessible to an educated lay audience without being “dumbed down” or journalistic. The Honor Code is smart, engaging, and thought provoking, and people interested in the themes he discusses should buy and read it. Now for the criticism: though rigorous and humanistic, Appiah’s thesis is misleading. Part ofthis is stylistic: he introduces the vagaries and tensions within honor through a set ofhistorical and contemporary examples, but it’s not until the end that he spells out his own commitments and the conceptual distinctions that motivated his project. That means it is not until the end that we are able to see the role he wants honor to play in normative appraisals ofinjustice. At that point, many readers will already be won over, in part because ofthe vividness ofhis examples renders them compelling: dueling, foot binding, and slavery were horrific practices and yet they were deeply embedded in the culture. “Honor killings” seem to have the same status in some parts ofAfghanistan and Pakistan, even as the West has managed to overcome similar circumstances. In each case, Appiah demonstrates that the codes ofhonor that produced injustice gave way to honor codes that eliminated the injustice. In a very short span oftime, dueling transformed from something a gentleman must do to preserve his honor into a ridiculous and dishonorable act. Foot binding went from the mark ofesteem and the requirement ofan honorable family to something no respectable family will allow. Slavery progressed from a source of honor for whites and dishonor for blacks into a blight on our nation’s honor. Appiah proposes that the same transition could happen in places like Pakistan so-as to prevent the murder ofwomen who fail to uphold sexual mores, including refusing arranged marriages.

I. Moral Revolutions Each transition in honor codes Appiah describes has a set offeatures that he summarized in an article in The Washington Post. A likely moral revolution will be attended by contemporary mixed feelings and a lack ofprincipled justification,


Status Updates

11

First, people have already heard the arguments against the practice. The case against slavery didn’t emerge in a blinding moment ofmoral clarity, for instance; it had been around for centuries. Second, defenders of the custom tend not to offer moral counterarguments but instead invoke tradition, human nature or necessity. (As in, “We’ve always had slaves, and how could we grow cotton without them?”)(2010c)

Perhaps even more importantly, future revolutions are presaged by widespread dismissal ofopponents: And third, supporters engage in what one might call strategic ignorance, avoiding truths that might force them to face the evils in which they’re complicit. Those who ate the sugar or wore the cotton that the slaves grew simply didn’t think about what made those goods possible. That’s why abolitionists sought to direct attention toward the conditions ofthe Middle Passage, through detailed illustrations ofslave ships and horrifying stories ofthe suffering below decks. (2010c)

Appiah used his Washington Post article as a springboard to describe future moral revolutions in the US prison system, our factory farming and industrialized meat production, the gross inadequacy ofour care for senior citizens, and our pollution ofthe environment. Appiah’s Post article claims powerfully that future generations will judge us harshly for these acts—acts that even now believe many people believe to be wrong but nonetheless continue apace. Ofcourse, ifwe share Appiah’s politics, thinking that we will someday improve the things he and I now see as problems is comforting. But granting that honor and shame are powerful motivators is not enough. Unfortunately, honor codes tend to resist easy reprogramming, especially from meddlesome moral hackers like my liberal friends and me. In a series ofresponses to that Washington Post article, conservatives and libertarians tried to push back against the liberal slant to Appiah’s moral priorities. A conservative might well see a very different set ofpractices falling under the rubric ofmixed feelings, appeals to tradition, and ignored critics. For instance, Ross Douthat responded in The New York Times: In the spirit ofsuch self-congratulation, I would (predictably) nominate abortion as a presently-tolerated evil that will one day be generally deplored. After all, it fits Appiah’s rubrics pretty neatly: The moral arguments against the practice are well known, its defenders are increasingly likely to defend the social necessity ofabortion rights (often along “women’s equality depends on legal abortion” lines) and the impracticality ofan outright ban than they are to defend the justice ofabortion itself, and the pro-life movement spends a great deal oftime trying to confront Americans with the physical realities ofabortion, whether via ultrasound images or grisly photos offetuses held up at protest marches. (Douthat 2010)

Even those who defend abortion rights must acknowledge that there is little popular desire to debate principles or confront the images that their opponents most want to show them. Perhaps this is evidence in favor ofa coming moral revolution on this point, but perhaps, too, it is evidence against the general theory ofnormative change Appiah propounds. Appiah’s theory ofmoral revolution frequently requires that a culture internalize a critique from an external source, as when the newly independent United States forced their British colonizers to recognize that their own participation in the slave trade was undermining their moral high ground. So the situation is significantly more difficult than Appiah lets on. In recent times, we have seen resistance to colonial norms and mores that created moral counter-revolutions, and the resurgence ofhonor codes that then required immoral acts.


12

Joshua A. Miller

This is the heart ofthe problem with The Honor Code. Appiah tells powerful stories, but the point ofview he adopts includes a particular kind oftheory ofcultural change, a theory ofcausation, without consideration ofthe evidence militating against his theory. What Appiah misses are counter-examples: theories ofcausation require theories ofcounterfactuals. Appiah avoids this, but because each example he employs has the same basic structure, we are encouraged to generalize from his story inductively. But Appiah has cherry-picked his examples to serve that induction.

II. Resistance to Change This resurgence ofunethical honor codes seems to be generated by a kind ofimmune system to external pressure that threatens the survival ofa culture. Thus one aspect ofAppiah’s theory that suggests difficulties that this immune system is mobilized by exactly the kinds ofexternal critiques that Appiah favors. Consider the practice offemale genital mutilation and cutting in Kenya. In the 1920s, missionaries for the Scottish Presbyterian Church in Kenya tried to mobilize their moral authority to eliminate the practice. 1 Because the Presbyterian missionaries condemned a local practice without also condemning violent colonial rule, local political activists took up a defense offemale genital cutting as a means of producing solidarity. Gayatri Spivak’s account ofthe role ofwidow burning in India in “Can the Subaltern Speak?” (2006) supplies another counterexample. Just as in Kenya, the combination ofpolitical domination with moral opprobrium created a dynamic equilibrium between honor and morality. Where the British tried to tinker with local honor codes, they only managed to exacerbate the problem and enhance the attraction of the practice. Ofcourse, Appiah recognizes that honor and morality are sometimes at odds. Yet, his book promises a theory for bringing the honor code into accordance with the moral law, however, and this is where it fails. Pakistan fits the anti-colonial model for conservative honor codes, but Appiah asks us to suppose that the right kind ofexternal pressure can avoid a backlash. Appiah need a better account ofhow exactly one should mobilize external pressure in order to tinker with a local honor code without energizing a culture’s antivirus protections. This is a daunting task for Appiah, for there is every reason to believe that this is impossible. A sourcebook for “hacking another culture” is bound to be read by members ofthat culture and then used to resist the changes advocated. The victims ofBritish imperialism recognized the ways that cultural domination feed political domination in India and in Kenya. Why should Pakistan be any different? Appiah does not answer this question, which would be a reasonable modesty, ifhe had at least considered it. In the absence ofsuch consideration, the picture that emerges is unrealistically optimistic and improperly places the onus ofmoral revolutions on outsiders with few real opportunities to achieve their ends.

III. The Virtual Demand for Esteem Much ofthe theoretical apparatus in Appiah’s account ofhonor codes can be credited to the excellent, agenda-setting book by Geoffrey Brennan and Philip Pettit, The Economy ofEsteem (2004). In fact, I suspect that it is Appiah’s departures from the Brennan and Pettit model that most damage his case. For one thing, Brennan and Pettit avoid the charged term “honor” in favor ofa relatively neutral term,


Status Updates

13

“esteem.” This is not simply a matter oflabeling: Brennan and Pettit also start with an analysis ofsome of the problems that plague attempts to think systematically about esteem, including what they call (following Jon Elster) the “teleological paradox:” Making the achievement ofesteem an active, targeted goal is counterproductive… in much the same way that the parallel pursuit ofpleasure or spontaneity is counterproductive. Ifone makes the achievement of esteem one’s principle goal, then that very fact will tend to undermine the provision ofesteem by others.

Esteem, like pleasure and spontaneity, tends to recede when directly pursued. It can only be achieved as the byproduct ofother actions. Perhaps this is also one reason that researchers tend to fumble when describing the pursuit ofesteem: it is too easy to see that their accounts are driven by their own goals of achieving esteem within a research community. Since uptake ofa research project requires respect, the fact that open discussion ofesteem creates discomfort and disesteem creates a special problem for such research. Those who acknowledge the role ofesteem directly seem to be the least estimable. This has been a real problem with the methodology behind esteem and fame research, but Brennan and Pettit come up with a novel solution. Rather than relegating esteem to a merely passive demand, one that we cannot actively pursue and so must chance upon in our everyday efforts, they suggest a third course, which they call “the virtual demand for esteem.” We ought, they suggest, think ofpeople as having a controlling desire for esteem that will tend to produce estimable behavior, while simultaneously disguising that control both from onlookers and from the agent him or herself. The model here comes from evolutionary biology, where researchers make use ofthe concept of honest signaling (Bergstrom 2006) and take the view that as animals, humans are likely to be constantly influenced by non-intentional motivations. Yet this account gives us such a representative model that we ought to at least consider that this is one ofthe major but understudied sources ofmotivation, rather than decrying another attempt to stealthily introduce unproven evolutionary psychological models into our behavioral sciences.

IV. A General Equilibrium for Esteem Brennan and Pettit use this conception of“virtual demand” to create a simple individual model for esteem as an exchange between an actor and an observer. An actor receives esteem or disesteem according to whether her act meets or falls short ofa performative standard. In a sense, this is simply a model ofsupply and demand, as we would see in a textbook on economics or in the formal models ofpreference utilitarians and decision theorists. “Virtual demand” creates the necessary abstraction that allows Brennan and Pettit to model a representative individual. (In this sense, their book badly needs something like Appiah’s historical and grounded work to fill in the abstractions with details.) The majority ofthe book is devoted to spinning out this model and trying to explain several puzzles as epicycles or disequilibria from the general equilibrium according to different complications, such as changing standards, or cultures and sub-cultures where performance standards diverge. It would be impossible to explain all the details ofthis textbook-like treatment ofthe subject, but I will focus on one potential problem in the simple model to give potential readers a taste ofthe kinds of problems that can emerge at this level offormalism. Brennan and Pettit assume that the demand for esteem, like the demand for other goods, falls as an individual comes into possession ofmore esteem, since additional esteem has diminishing value to one who already has much ofit. Yet they give no


14

Joshua A. Miller

evidence for this claim: it is simply a feature oftheir model, and indeed we might ask what would count as evidence ofsuch a claim. Here, though, they are treating esteem like any other good, a widget among other widgets, a preference that must be weighed against other preferences. Yet everything cannot be described in terms diminishing marginal utility. Notably, it is a mistake to describe the demand for utility or happiness itselfin terms ofdiminishing marginal utility, a kind ofmetatheoretical mistake where the lessening ofpleasure from repetition is applied to a perceived lessening of pleasure in happiness itself. For utility or preferences to be sensibly modeled, however, we need to preserve the sense ofa constant demand for utility or happiness, perhaps with the understanding that there is some ceiling after which ecstasy flattens or approaches asymptotically. This is very abstract. Here is the concern: that an individual ofhigh esteem is somehow less motivated by esteem than an individual oflow esteem. There is simply no reason to believe this is true, and ample evidence to the contrary. For one thing, many individuals ofhigh esteem seem very concerned to maintain that esteem: Appiah starts his book with an account ofthe British Prime Minister, also the Duke of Wellington, preparing to duel the British Secretary ofWar, also a knight! Both were forced to duel by what must be understood as an absurd and even buffoonish course ofevents motivated by a concern for their honor, which they already had in great supply. Ofcourse, Brennan and Pettit could easily argue (though they do not consider this objection in the book) that even at diminishing marginal utility, many very rich persons take great risks to increase their wealth. Since this is not evidence ofthe diminishing margin but ofthe large natural demand that these individuals have for wealth, Appiah’s examples are not evidence ofthe constant marginal utility ofesteem but ofthe unreasonable preference some people feel for esteem over other goods, even life. I offer this as an example ofthe kinds ofdisagreeament that even a well-conceived model may occasionally present to the reader. A formal model is not evidence for some position or opinion. It is an argument whose assumptions are all expressed in the most symbolic and esoteric form possible. The model presented by Brennan and Pettit is only as good as its assumptions–sometimes we need a model to formalize our disagreements about those assumptions.

V. Association and Applications for Esteem Ifthey can slog through the formalism, readers will notice that Brennan and Pettit’s project shines when they begin to apply their model to associational decisions and contexts. This is also the space where they begin to articulate the themes subsequently taken up by Appiah in The Honor Code: how people participate in the formation ofthe values that underwrite the standards ofesteem and disesteem, and how what they call “the intangible hand” can shape and be shaped by institutional designers. Voluntary associations can be explained as a kind ofmatching ofestimable performers, observers, and the appropriate standards. Esteem is the both the motivation for forming such groups and the foundation upon which they are based; it the glue that binds them together and the currency whose exchange preserves them. 2


Status Updates

15

By using these voluntary associations as the norm, Brennan and Pettit are able to explain why involuntary associations like race, sex, and ethnicity constantly present us with problems tied to recognition and respect. As involuntary associations with barriers to entry and exit, these groups tend to mismatch performers and observers with inappropriate standards, inviting inaccurate or invidious comparisons. Since involuntary associations can cause an individual to receive unearned scorn (Brennan and Pettit call this “borrowed contempt”) they become a problem that: first leads those trapped in such associations prone to disengagement and second encourages them to form a countercultural voluntary association within which the traits treated as contemptible by the groups from which they are excluded are seen as positive. In this formulation, subcultures can be either countercultural (opposed to the predominant standard, i.e. abolitionists) or outsiders (systematically excluded.) The flipside ofvoluntary associations who control entry is that some people will be excluded from all or most voluntary associations and become permanent outsiders without any source ofesteem at all. As Brennan and Pettit put it, “Now, a situation in which there is a category ofpersons with a very high unmet demand for esteem creates scope for a kind ofvalues entrepreneurship.” (225) Brennan and Pettit conclude that since subculture formation will occur most often among those that have no alternative sources ofesteem, these subcultures will be dominated by peer pressure and the struggle over centralized authority within them. They use racism and sexism as their paradigm examples, but the analysis tends to converge in a way that can be easily applied to the kinds of solidarity that form to resist imperial domination. The victims ofcolonial subjugation recognize that their political plight surrounds an involuntary association (the fact oftheir birth as an “aborigine”) and so they engineer a solidarity movement that chooses its own moral standards.

VI. Dishonoring Honor Brennan and Pettit rightly begin their exploration ofesteem with Hume rather than Kant, but this has predictable results. Where Hume’s theory ofmoral sentiments requires us to acknowledge all the various kinds ofmoral motivation, Kant’s contractualism suggests that some kinds ofmotivation are simply inadequate to the task ofmoral reasoning. The strong tendency toward moral non-realism in experimental philosophy and moral psychology is a welcome correction to overly ideal accounts. There is such a thing as overcorrection, however, and I believe Appiah has absorbed it through his exposure to experimental philosophy (2008). Humeanism ignores the standard case against some moral intuitions, which is the claim that though we experience them as moral judgments, they are not really moralitytracking. Ifhonor leads us sometimes to free our slaves, it must be admitted that this is not a respect for humanity that necessarily leads to that conclusion. As has been amply demonstrated, our mores surrounding homosexuality are clearly linked to our tendency to think that disgust and the ideal ofpurity is a moral intuition, rather than vestigial health-related instinct rooted in long irrelevant needs from our evolutionary past. The same problem emerges in our moral intuitions to prefer in-group solidarity over out-group cosmopolitanism. In The Honor Code, Kwame Anthony Appiah claims that the concept ofhonor is the basis for equality of human dignity as such, but this claim is driven by a failure to distinguish between honor as respect, honor as status, and the economy ofreputation or esteem. This allows him to discuss the honor ofa nobleman born into his status as ifit were equivalent to the honor ofNobel laureate whose esteem comes from her achievements. But one thing our moral reflection has continued to report is that there is an important


16

Joshua A. Miller

distinction between societal privilege, claims to basic dignity, and the reputation due to merit, and that we confuse them at our peril. At some point, a philosopher has to admit his priors, and in moral matters Kant will always trump Hume, for me, because we can use reflective equilibrium to distinguish between the reasons that motivate us and the reasons that we would prefer to motivate us. Moral equality is not derivative ofbirthright status: it is not something we deserve by dint ofhaving been born human, as evidenced by the fact that we can and should extend our moral community to include future unborn generations and animals. The conception of dignity as a special case ofhonor cannot make this leap, even ifwe will ultimately motivate our fellow citizens to extend their communities through the selective application ofshame.

VII. Hacking Honor and Shame Perhaps a better title for Appiah’s book would be The Shame Code, because his account ofthe role ofhonor in policing behavior. An honor code is a set ofprinciples for justifying respect, and the drive to pursue of honor and avoid ofdishonor can be extremely influential. Many people will do anything to preserve their reputations, and iftheir society requires them to fight duels, keep slaves, bind their feet, murder their daughters, or mutilate their childrens’ genitals, they will. While I see this as a reason to decry honor, Appiah sees an opportunity: all we need to do is change the code, and the duelers, slavers, binders, murderers, and mutilators will change their tune. There’s an analogy here between the honor code and the programmer’s code, and indeed I suspect Appiah’s project will appeal to the tinkerer in every philosopher: change their moral operating system, and within a generation that band ofeasily manipulated simpletons will decry violence, declare themselves colorblind, celebrate feminine perambulation, and allow their daughters to choose their own husbands or their children to enjoy sex. Here, then, is the problem that Appiah’s project must suppress in order to succeed: honor codes work best when they are unacknowledged, and they are best changed when they are not the object ofdirect study or overt deliberate manipulation by outsiders. Moral revolutions that are predicated on honor code changes are most likely to succeed when the transition does appear to be the work ofself-conscious elites, even ifit probably is. This would probably help explain some other details suppressed in Appiah’s account, like why debates about slavery and racism did not end with the Atlantic slave trade or the American Civil War.

VIII: Praise In general, Appiah’s emphasis on honor discounts our capacity to arrive at moral judgments independently ofthe codes ofhonor and esteem that motivate us. He puts the cart before the horse, but he does it so entertainingly and with such erudition that it’s difficult to fault him for it. Appiah’s style is a kind ofrigorous popular historicism. Though they are motivated by disputes within philosophy, his books aren’t designed for a specialist audience, and are rich with narrative detail, historical examples, and the sense ofplot that we find in the best fiction. This is the kind writing that most philosophers should strive to emulate. One’s career should not be capped with a handful ofarticles that make minor technical


17

Status Updates

and exegetical arguments. We should all be hoping to write at least one book that grabs the public’s attention and makes a meaningful contribution. Appiah richly deserves his growing reputation as a public philosopher, and I hope that his success will generate a demand for such success from my colleagues and contemporaries (though it will, perforce, be a virtual one.) JOSHUA MILLER is a Professor ofPhilosophy at Morgan State University. He has most recently authored (with Steven Maloney) "Foresight, Epistemic Reliability and the Systematic Underestimation ofRisk" in The Good Society and "An Act is Worth a Thousand Words: A Place for Public Action and Civic Engagement in Deliberative Democracy" in Theoria.

Notes 1. Appiah writes, “Political consciousness was rising and the missionaries were viewed with suspicion because they did not condemn the evil actions ofthe colonialists. How could they speak ofa loving God who loved the local African people but still sanction the evil acts oftheir fellow ruthless colonizers who were occupying native land by force, evicting innocent and defenseless poor? In 1923 Harry Thtiku, one ofthe Gikuyu’s great warriors against the British occupying forces, was detained in Kismayu Island because he championed (he cause ofthe poor and their land. Local political activists held land as the number one issue for fighting the white man’s illegal and violent occupation. However, since female genital mutilation was one ofthe heavily emotional issues, the political activists used it to maximize their call against the foreigner’s agenda. The missionaries ordered any church members who did not publicly renounce female genital mutilation to leave. Two hundred members in the Presbyterian Church ofKenya were barred from participating in Holy Communion. This stance only hardened and encouraged the adherents offemale genital mutilation to extreme stubbornness and resistance against the missionary message.” 2. This may partly explain why those who are most motivated by in-group solidarity are also most likely to be conscious ofstatus and hierarchy within the group: the deference earned within the group is also the group’s raison d’etre.


18

Joshua A. Miller

Works Cited Appiah, Kwame Anthony. 2008. Experiments in Ethics. Cambridge, MA: Harvard University Press. ———. 2010a. “Experts: Kwame Anthony Appiah,” big think, accessed October 19, http://bigthink.com/kwameanthonyappiah2. ———. 2010b. The Honor Code: How Moral Revolutions Happen. New York: W. W. Norton & Company. ———. 2010c. “What Will Future Generations Condemn us For?” The Washington Post, September 26, http://www.washingtonpost.com/wp-dyn/content/article/2010/09/24/AR2010092404113.html. Bergstrom, Carl T. 2006. “Honest Signalling Theory: A Basic Introduction,” last modified October 23, 2006, http://octavia.zoology.washington.edu/handicap/. Brennan, Geoffrey and Phillip Pettit. 2004. The Economy ofEsteem: An Essay on Civil and Political Society. Oxford: Oxford University Press. Douthat, Ross. 2010. “The Judgment ofthe Future,” The New York Times, September 28, http://douthat.blogs.nytimes.com/2010/09/28/the-judgment-of-the-future/. Spivak, Gayatri Chakravorty. 2006. “Can the Subaltern Speak?” in The Post-Colonial Reader, 2nd ed. Edited by Bill Ashcroft, Gareth Griffiths and Helen Tiffin. London: Routledge.


Environmental Law Death Watch James McNamara

The United States ofAmerica’s noble project ofenvironmental healing has stalled. The judiciary, the legislature, the executive, and the people themselves have given up on meaningfully piecing back together our national environment. The prophets ofenvironmental doom have been shouted down, their warnings labeled shrill, puritanical pessimism. 1 I offer here an argument that assumes the state ofthe environment. We are surrounded by the evidence ofmass extinction and atmospheric poisoning, and those actually seeking the truth can easily find it. What I hope to add is a summary ofthe legal and political context in which this struggle for environmental sanity is taking place. As a lawyer by training, I will focus on the legal doctrines that have developed in the courtroom, but I will briefly address the remainder ofgovernment as well. Environmental law does not take place just within the judiciary. Rather, it is a product ofall three branches ofgovernment and the public acting in concert. For those not following closely, the way our federal government has dealt with environmental law—mostly with public acquiescence—might prove as harrowing as the environmental facts themselves. For the time being, environmental law is near death. President Obama’s failure to appoint federal judges sympathetic to the regulation ofenvironmental destruction, combined with President Bush’s manifest success in appointing judges actively hostile to it, has made it nearly impossible to advance environmental interests through the judiciary. Ofcourse, certain judges will still uphold and apply environmental laws. But there has been a dramatic shift in the composition ofthe judiciary since most ofthe famous early court battles ofenvironmental law were waged. Given the general din made about “liberal judging” and “activist courts,” it is remarkable how little the public has recognized the massive rightward shift ofthe judiciary ofthe last forty or so years. But the general trend is clear: more lenient interpretations of statutes, more obstacles to public suits under those statutes, far greater deference to environmentallyhostile administrations, and even a greater willingness to hold federal environmental laws unconstitutional. Together these four horsemen bring swift ends to all but the most timid environmental litigation strategies. Four telling cases illustrate the troubling state ofenvironmental law. Three ofthem come from the Supreme Court and the final comes from the current ChiefJustice back when he was still Judge Roberts. Together they show how the courts are dismantling the foundations ofFederal environmental law. The first telling case is Rapanos v. United States, 547 U.S. 715 (2006). The northern-midwest is a land speckled with small lakes and wetlands, vital resources for wildlife and irreplaceable components of freshwater ecosystems. Water that begins its journey in the still waters ofthese wetlands often ends up seeping through the soil or springing through small channels and winding its way into the lakes we swim, the groundwater we drink and the rivers we fish. In order to prevent the degradation ofthese important waters, the Army Corp ofEngineers had interpreted its governing statute, the Clean Water Act, as


20

James McNamara

authorizing the Corps to regulate activities that might destroy important wetlands—and thus entire hydrologies—wholesale. In the plurality opinion ofJustice Scalia, signed by four ofthe nine Justices, it was decided that the phrase “waters ofthe United States,” unambiguously excluded such wetlands. The Corps, thus, had no power to prevent their destruction. Because Scalia failed to get the fifth vote for his opinion, the less harsh concurrence ofJustice Kennedy provided the official standard. But what is most interesting for our purposes, however, is not the doctrine but the methodology. The case was not decided on what would make ecological or hydrological sense, given the words ofthe statute. In fact, the opinion flagrantly delights in ignoring ecology. To Scalia and his co-signers, the concept of regulating an arroyo—where water flows only part time—under the Clean Water Act is worth mocking outright, even though in many parts ofthe United States such arroyos are the main conveyors ofwater. Ifpeople are free to dump in and destroy seasonally dry arroyos and other overlooked water sources then a large sector ofthe nation’s water has no protection under the CWA. This is not an academic matter. EPA regulators believe the drinking water ofover 100 million Americans is now vulnerable to unregulated pollution because ofthe court’s ruling. But no matter, as long as a scientifically irrelevant passage from Webster’s Dictionary can be dragged up to bolster the Court’s case. This interpretative framework, in which environmental statutes are interpreted with utter disdain for environmental science, is a favorite ofmany conservative justices. Scalia is only the most influential proponent. Our next case, Lujan v. Defenders ofWildlife, 504 U.S. 555 (1992), demonstrates the disregard the antienvironment jurists have for citizen oversight ofgovernmental regulation. The opinion, also written by Justice Scalia, introduced a number ofhurdles that environmental groups must jump through before they can sue in federal court to force federal agencies to follow the law. The question is not whether or not the agencies are breaking the law or not. The question is whether or not citizen groups can argue in front ofa court that the agencies are breaking the law. At issue in Lujan was: can Americans who were deeply interested in the conservation ofspecies that live abroad sue under the Endangered Species Act to protect those species? Scalia, speaking for the court, said that no, they could not sue, because–and I swear I’m not making this up–the environmentalists had no immediate plans to visit the areas in which those species lived to try and see them. It appears that a plane ticket would have sufficed. Since Lujan, environmental groups have tried to meet this burden by ensuring that their broad membership includes frequent travelers who can plausibly argue that they will visit whatever environmental element they wish to protect. Environmentalists have been reduced to claiming the harm suffered when a species goes extinct is simply that the environmentalist will not be able to take pictures ofthat species on safari. Willful obliviousness to the tragedy ofextinction and the gravity ofenvironmental problems has become a concession the judiciary demands from environmental law before environmental advocates are even allowed to make appearances before the Court. Our third case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—known simply as Chevron by the cognoscenti—is the backbone ofmodern administrative law. Chevron is a slippery case. The gist ofthe case is that when a statutory provision appears clear on its face, the court must go with what the statute says, but when a statute is ambiguous, the court should defer to the reasonable interpretation ofan agency tasked with implementation ofthat statute. Entire bookshelves of


Environmental Law Death Watch

21

commentary have been written inspired by these seemingly simple instructions. The word “ambiguous” does the real work in the interpretation. Itselfa pleasingly ambiguous word,the “ambiguous” standard in Chevron has allowed courts to hide their own policy preferences under the guise ofdeference to agency decisions. Disagree with the agency interpretation? Then the statute is simply plain on its face, thus the agency is wrong. Agree with the interpretation? Then clearly the statute is ambiguous, and despite good arguments on both sides there is nothing you can do, the agency interpretation must stand. The standard draws the conclusion that agency experts know best... except when they do not. As the Court determines when agencies do or do not know what is best, with respect to environmental law, the Court has taken the decision ofknowing what is best for themselves. We can see the absurdity ofthis approach by comparing Rapanos, where the Court went out ofits way to show that the statute was plain on its face so it could overturn an agency interpretation, with a case decided just a few years later, Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). In Massachusetts, the same Justices who were so eager to find the Clean Water Act unambiguous in Rapanos tripped over themselves to find grave ambiguity in the Clean Air Act, so that the Bush Administration could continue to ignore climate change. This shell game is logically untenable, and allows for alternatively too much judicial aggrandizement or judicial abstention, according to whichever political tactic seems most appropriate at the time. The final telling case is not a case at all, but a dissent by then-Circuit Judge John Roberts in Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (2003). At issue in the case was a housing development that was slated to be built right over the prime habitat for the endangered arroyo toad ofsouthern California. The developer challenged the constitutionality ofthe Endangered Species Act itselfas it applied to his development. Because the federal government is supposedly a government of“limited powers,” it can only act when there is a constitutional provision authorizing such action. The government argued that, under halfa century ofjurisprudence, it is clear that the government can regulate even relatively insignificant activities if, in the aggregate, those activities might effect interstate commerce, and thus fall under the Commerce Clause grant ofpower to the federal government. The developer argued that because the toad lived only in California, and was not traded in interstate commerce in anyway, nor was the toad economically valuable in and ofitself, the federal government did not have any power under the Constitution to halt their development. The majority ofthe court ruled that the ESA was regulating the activity that harmed the toads, not the toads themselves, and thus it was irrelevant that the toad itselfwas not interstate commerce material. What mattered to the majority ofthe court was that the development clearly was a part ofinterstate commerce, involving the shifting ofmillions ofdollars and tons ofequipment across state lines, and thus the ESA could apply. The developer requested that the entire circuit court sit as a group and reconsider this holding all together. The majority ofthe court said no, but Justice Roberts said yes, arguing that the majority’s approach did not hold muster under recent Commerce Clause jurisprudence out ofthe Supreme Court. Justice Roberts then infamously noted, “The panel's approach in this case leads to the result that regulating the taking ofa hapless toad that, for reasons ofits own, lives its entire life in California constitutes regulating 'Commerce ... among the several States.' " The tone ofthis off-hand remark did not sit well with environmentalists, who now fear that ifthe four conservative Supreme Court Justices (Scalia, Roberts, Alito and Thomas) ever gain a fifth vote, the


22

James McNamara

constitutionality ofthe Endangered Species Act (according to the Supreme Court at least) would be put seriously in jeopardy. That would truly be the end ofenvironmental law as we know it. Thus, these are most precarious times for environmental law and the courts. Odious doctrines are on the advance, and despite a few notable successes, environmental statutes sit secure only as long as the Supreme Court is prevented from gaining a fifth arch-conservative vote to replace the more typical conservative Justice Kennedy. But there remain two other branches ofgovernment–perhaps they can save us from the heavy price ofinaction in the face ofcontinued profligacy. And ifthey are not willing, then as a last resort the public can rise up and demand it. Right? For the time being, it appears, the vitality ofenvironmental legislating fares no better than environmental litigation. The ignominious end ofthe climate change bill in Congress, weakened by the house and stillborn in the Senate after years ofkabuki negotiations, speaks volumes as to the structural and political hurdles in the way ofany meaningful environmental law from being passed again. Furthermore, with a 60-vote threshold now nearly requisite in the Senate for important legislation, coupled with the disproportionate power the structure ofthe Senate already gives to mostly rural, environmentalregulation-allergic states, it seems impossible to imagine a bill capable ofdoing any real good passing the structural hurdles enforced by the legislative process. But maybe the executive branch can step in and fulfill some ofthe policy-making role? For the time being, environmental administrating is near death as well. The director ofthe Office of Energy and Climate Change Policy Carol Browner has already departed from the White House staff. After the manifest failure ofthe White House to guide the climate bill through Congress, the administration seems to have given up hope. Perhaps more telling is the Orwellian removal ofany mention ofclimate change, global warming, or any other appropriate synonym from the executive lexicon. Sure, the EPA is slowly stalling over regulating a few major sources ofatmospheric pollutants. But the scale and pace oftheir ventures is achingly incommensurate to the forever worsening state ofthe problem. In environmental spheres other than climate change, the Obama administration (guided along by Ken Salazar’s Interior Department) has been even worse. The reintroduction ofkeystone species has been halted and attempts at undoing past reintroductions are underway, the protection ofnewly endangered species has been abandoned under the auspices offinancial difficulties, and the continued drilling, digging, and slashing ofpublic lands, largely at a loss continues unabated. For the time being, even environmental public discourse appears to be in a state ofnear death. Basic truths underlying nearly all ofenvironmental science, such as the evolutionary patterns oflife and the insulating effects ofgreenhouse gases, are widely disbelieved by a sizable plurality ofAmericans, ifnot a clear majority. Inconsequential and innocuous private emails between scientists are blown widely out of proportion. The few reports accurately and carefully explaining the dire urgency ofthe ongoing environmental collapse are ignored and reviled. This is not a public that appears anywhere close to pushing their government in the right direction on environmental issues. And after the Supreme Court decided in Citizens United v Federal Election Commission, 130 S.Ct. 876 (2010) that corporations and moneyed interests deserve to have more influence over the public dialogue rather than less, may further reduce the chances that a small group ofcommitted citizens will be able to cut through the noise and propaganda.


Environmental Law Death Watch

23

I have purposefully chosen not to burden this paper with solutions. Suffice it to say, any solution proposed should be tested against the full brunt ofproblems outlined above. We have done great things before, shouldered hefty burdens and passed difficult trials. Maybe we can do it again. But ifnot, we are at the beginning oftruly dark days for both country and planet—for those who care about it, for the people who live on and are sustained by it, and for the millions ofother species whom we share it with and have not as yet gone the way ofthe passenger pigeon or thylacine. JAMES MCNAMARA is an environmental lawyer. He has a J.D. from the Boalt Hall School ofLaw at the University ofCalifornia, Berkeley and is a member ofthe Minnesota State Bar Association. Notes 1. Type in “environmentalists are” in Google Instant search and the first four responses are: wrong, hypocrites, watermelons, and extremists. Watermelons? Watermelons, evidently, because environmentalists are green on the outside, and red–as in communist–on the inside.


Expert Help I: Nietzsche's Eternal Return ofthe Same THE GERMAN PHILOSOPHER Friedrich Nietzsche (1844-1900) developed the idea ofthe “eternal recurrence ofthe same” (discussed primarily in The Joyful Science (1881-1882) and Thus Spoke Zarathustra (1883-1884) as a central part ofhis approach to re-valuing conventional values. Nietzsche would have us imagine that we were fated to live our current life, in all its detail and nuance, and all its good times and bad times, over and over again, indefinitely and without variation. He asks us whether we would take that news as a joyous pronouncement or a dread nightmare. (In some ofhis Notebooks, Nietzsche played with the idea that “eternal recurrence” might be a real-world consequence ofthe infinity oftime, but in his published work Nietzsche focused, more properly, on “eternal recurrence” as a thought experiment.) Nietzsche does not believe in traditional Judeo-Christian morality, and thinks that Christian ideas about the Afterlife have had very bad effects, causing us to denigrate the joys and strengths ofthis life, and to avoid paths that might lead people (or at least some individuals) to a higher form ofhumanity. Eternal recurrence is, in a sense, an alternative myth, one whose purpose is to be the opposite ofthe effect of beliefin an Afterlife: to make us emphasize this life, rather than focus primarily on some life to come. The idea is that we would no longer give up the joys and projects ofthis life just in order to gain rewards in some other or “after” life. Nietzsche believes that many ofus would live much differently, and, to his view, much better—with greater gravity and intensity—ifwe thought only ofthis life (as magnified by eternal repetition). B RIAN H. B IX Frederick Professor ofLaw and Philosophy University ofMinnesota

Nietzsche's Abysmal Thought WE MAY LOOK at Nietzsche’s teaching ofthe eternal recurrence ofthe same as a tool ofmeditation, as a mantra, as it were, and not focus on its possible cosmological and ontological implications. One ofthe aims envisioned by this meditation would be a freeing ofthe soul from being imprisoned in Christian end time. The notion that time has a beginning and an end, to be marked by the (second) coming ofa savior, appears to be a fiction based in resentment; it is not given in nature. Nietzsche, however, proposes that even the division oftime into past, present and future is fictional. There is only the Now, which is (in) the light and visible. The conditions for this visibility are the darkness ofthe No-longer, and the darkness of


Nietzsche's Eternal Return ofthe Same

25

the Not-yet, both ofwhich are eternal. Eternal recurrence, when used as a meditation (perhaps by focusing on the three parts ofa complete breath), then would enable an individual to use the darkness of the No-longer as the power by which to extend the light ofthe Now over the darkness ofthe Not-yet. It would permit the transformation ofany given little moment oflived experience into the great moment of the experience ofthe deep eternity ofevery now and ofall time. Eternity would no longer be considered to be outside time and opposed to it, but would be understood to be within time. The integration of eternity and time would then be a portion ofthe self-renewing and endless circle ofbeing in the light. If “embodied” by free spirits ofthe future, this though would entirely change the structure ofhope. HORST HUTTER Professor ofPolitical Science Concordia University AMONG THE MOST PUZZLING philosophical doctrines ofall times is certainly that ofthe eternal recurrence advocated by Friedrich Nietzsche (1844-1900). At first, looking back on the motivations behind previous philosophers’ systems, he saw that there was the promotion of“worlds-beyond.” Nietzsche interpreted those as a rampant desire to cope with one’s limitations and suffering by negating them. Thus he first considered that the “will to power” was a means ofdeciphering the motivations for things he dreaded in others. Only later did he write passages where it seems to be ramped up as a virtue. The eternal recurrence famously came together in his mind while taking one ofhis endless walks as he rented a room in Switzerland, and came near a pyramid-shaped rock next to lake Silvaplana, in the Upper-Engadine. The problem that had occupied his mind suddenly crystallized, and this was to articulate this rejection ofworlds-beyond, to his conviction that one’s dictum oflife’s conduct ought to be unconditional and virile affirmation and acceptance ofwhat there is, termed “ amor fati.” Nietzsche thought that the rejection ofany ends ascribed to the world from outside entailed that everyone ofits instants was to be looked upon as totally sufficient, as having the same value than the one that was previously ascribed to the eternal and linked to the affirmation ofthose worlds-beyond. Joy only longs for the “profound eternity” and Nietzsche does not believe in the value ofthat which would not partake of this trait, hence his saying in Thus Spoke Zarathustra (III, “The Seven Seals”) that he wants no children from any woman lest it be eternity herself. The sentiment that is tied to this idea dawning on him is indeed joy. It is something he embraced, and to the extent he sought to deduce it from the science ofhis day, he was prudent to confine it to scribblings in his notebooks, which he ended-up never publishing. We are called to envision a world wherein everything recurs because it is made ofa finite number ofelements with a finite number ofpossible combinations among them, and there is all the time one wants for them to explore the range ofthose possibilities. Nietzsche knew the idea had no foundation in the physics ofhis day. He also was aware ofdifficulties: if indeed the cycles are identical, how are we to say they succeed each other? Aren’t they then the same? If they are not the same, then whoever comes back cannot truly be myself, thus canceling something of amor fati. It must be remembered that the 19 th century is not only the period ofcold rationalism and scientistic triumph often pictured; it had its underlying strain ofoccultism, even in the father ofpositivism, A. Comte. Some, such as L.A. Blanqui, even defended that, not only would this world recur as it is,


26

Expert Help

but we ourselves would have perhaps an infinite number ofdoubles! Many commentators, seeing the difficulties the idea faces (they are greater in a relativistic physics framework than they would have been in Nietzsche’s days) have defended a purely ethical interpretation: live your life as though your acts are truly willed, to the point where you’d want them to be eternally what they are. Yet Nietzsche meant more than this. The ultimate significance for him was probably the thought that, in every single moment, the world is finished and its end attained, linked to a denial ofindefinite progress, ofwhich our society still lives, what Hegel called “the bad infinite.” Overall, in Nietzsche’s philosophy, there is a seeming contradiction between on the one hand the thrust into the infinite (“we will fly farther, brothers…” as written poignantly in Daybreak), making man a being who cannot receive himselffrom any other, and on the other hand man's imprisonment in the eternal wheel that rolls. IfI surrender completely for each one ofmy fellow human beings, even the unknown, then I would resurrect but I will also eternally be brought down by them, impeded in my will by their canceling out my action. Then, I must “self-surrect,” refuse that my selfcould be pre-written in a God who would raise me. This is why Nietzsche’s reaction to his own recurrence doctrine was often disgust and a veering offtoward an exclusive affirmation ofthe will to power. Only ifmy rising up could be from the bosom ofthe earth herselfcould I then receive it. Jesus’ resurrection is often presented to us as an extrinsic and miraculous act ofthe Father raising him, the Father having been tranquil with his power unhampered while Jesus suffered. What if, o unthinkable thought, the earth would herselfcontain the seed ofresurrection? Ifthe world, which has appeared to Nietzsche (despite his unending physical sufferings), “a humanly good thing” would be revived, with all our experiences, all the bonds we have woven (and the image Nietzsche intimates ofthis recurrence in The Gay Science is indeed that ofa spider web between the branches under the moon). His understanding ofthe human person is consequent with his reversal ofall values, ofa rationality that would be in the body and the multiple, it is an emotional understanding, that ofa man dreaming his cherished moments, his “children” as he calls them, elevating accidents to the level ofsacred and divine moments ofrevelation. It is in this sense a revelation extended to everything, the most mystical thought that ever occurred to anyone, the implementation ofa complete cataphatic theology. P HILIPE GAGNON Professor ofTheology University ofSaint Thomas


Political Thought In History: The "What is Enlightenment?" Essays Kant

Gary Banham Managing Editor, Kant Studies Online Kant’s short essay on enlightenment is the occasion for him to present in popular form a number ofkey themes ofhis political philosophy. Central to it is the division between “public” and “private” though the use made ofthis distinction is quite different to the conventional one. Ordinarily it is thought that what is “private” is only that which concerns one’s own affairs whilst what is “public” are the commitments one makes in one’s profession or vocation. Kant, however, strategically turns this distinction around declaring that it is whilst one is employed and working to a commission that one is engaged “privately” whilst the “public” activity one engages in, activity that marks one out as a “citizen ofthe world”, is activity as a writer and reader, activity that enables one truly to use one’s reason in a way that is not curtailed by others. Grasping the central point ofthis argument can help us to see its continuing relevance. Essentially, when performing acts as an employee or as a citizen bound by laws, one is engaged in following agreed dictates ofothers. So, a teacher for example, follows a curriculum that has been set by agreements with others and laws ofthe college in question. In relation to this employment the teacher is not simply free to say what they like but must instead restrict themselves to tracing the content ofthe texts in question although they often can, and surely do, interpret them in various ways. Due to the fact that in fulfilling their office they are following the commission ofothers and doing so essentially to meet the need they have to derive an income for themselves they are engaged in what Kant terms a “private” activity. This is so for the army officer who has to follow orders as much as the preacher who conveys the teaching oftheir church or the teacher who sets out the curriculum oftheir college. Ifthese professions are bound by rules and dictates that the one performing them did not create it does not follow that the nature ofwhat the rules in question consist in could have any form whatever and that the employee is simply, as Kant puts, a “machine” in filling out their role. The reason why this is not so is due to a cardinal tenet ofKant’s general political philosophy, namely, that it is not within the bounds of reason for anyone to impose a law on others that these others could not possibly consent to. So there is a form oflaw that is at the heart ofthe regulation ofall civic occupations that relates these occupations to the purpose ofthe state in general. This form is located in the ability ofconsent to the rationale ofthe regulations on the part ofthose asked to perform actions in accordance with them. This indicates that there is a contractual structure to civic occupations that is akin to that which citizens are in with regard to the sovereign ofthe state.


28

Political Thought in History

Ifthe sovereign ofthe state is bound by the notion ofan original contract that requires that law be formed according to a pattern ofwhat could reasonably be expected to gain assent from others then the nature of all civic occupations should be such that it does not contravene this basic rule. Enlightenment is the process whereby open public dispute about the nature ofall laws and their relation to the basic law ofthe state takes place. Since in such activity ofreading and writing we are freed from all specific tasks and obligations we can take the standpoint ofthe universal and thus ‘think for ourselves’. The enduring value ofthis as a message is that it entails that no head ofa congregation, college, or armed force, can ask for an obligation that lacks validation in the grounds ofconsent in general as revealed in the form ofthe social contract. Many such institutions wish to aggregate powers to themselves that we would not permit state power to have and Kant’s message is that they have no ground for such arrogation and that it is part ofour political duty to maintain adherence ofall institutions to the form ofcivic law in general, a message that remains central to the struggle for free speech and the public expression ofgeneralizable thought that is free precisely in its commitment to law.


29

Foucault

Ross Edwards University ofMinnesota It is commonplace to see Foucault’s ‘response’ article "What is Enlightenment?" as a bookend to Kant’s earlier reflection. By paring them thus we allow ourselves to trace a certain trajectory that we can call, for lack ofa better term the ‘rise and fall ofthe Enlightenment,’ with Foucault’s piece offering us the theoretical eulogy to the project itself. I feel that is too simple a characterization, and doesn’t Foucault himselfteach us in the first volume of History ofSexuality that these very sort ofperiodizations often serve the discursive functioning ofpower that (in the spirit ofboth History ofSexuality and "What is Enlightenment?") we should work to interrogate rather than verify? I want to disturb that relationship and neat genealogy for one a bit more complex, albeit one that still, a degree, puts Kant and Foucault at odds with each other. Keeping in mind, however, that Foucault does claim “that does not mean one has to be ‘for’ or ‘against’ the Enlightnment.” I caution that offering a complex relationship between the two means that they are not diametrically opposed just as much as they are not perfectly complimentary. One ofthe important areas ofdistance between them turns on Kant’s notion offree public use ofreason and submissive public use. Here, Foucault’s analysis is not only illuminating for Kant’s own project, but it offers us a chance to see where and how Foucault begins to take steps away from Kant. Foucault writes, “Man, Kant says, makes a private use ofreason when he is a ‘cog in a machine’; that is, when he has a rule to play in society and jobs to do: to be a soldier, to have taxes to pay, to be in charge ofa parish, to be a civil servent, all this makes the human being a particular segment ofsociety; he finds himselfthereby placed in a circumscribed position.” And in these roles, individuals are asked to use their reason in a way that is socially determined for their respective roles. Though Foucault believes Kant is not asking for a blind obedience in this sense, Kant’s ‘contract’ with Frederick II seems to leave no doubt that these positions have a certain ‘given-ness’ to them, and this unfree use ofreason regarding social positions is one way in which Foucault is absolutely correct in claiming that we are, “being who are historically determined, to a certain extent, by the Enlightnment.” These positions become, for Foucault, part of“these historic-critical investigations…that…always bear upon a material, an epoch, a body ofdetermined practices and discourses.” The social roles that constrain the private use ofreason are discursive formations and, as such, form very specific loci ofpower, and critically interrogating these roles, and more importantly, the relationship that emerge between these roles (pastor – congregation for example) forms the basis ofFoucault’s genealogy ofmodernity. Thus, some ofthe very stabilizing factors in Kant’s schema (part ofhis solution to the political problem ofthe Enlightenment) are the very targets ofFoucault’s critical use ofreason. This is not to say that Foucault is abandoning Kant here, but quite the contrary, I believe that, in this theoretical practice, Foucault is actually spurring us on to a more powerful understanding ofhow our ‘immaturity’ can manifest itself, and is largely trying to get us to understand ways to problematize it. Foucualt writes that, for Kant, states of immaturity include “when a spiritual director takes the place ofour conscience, when a doctor


30

Political Thought in History

decides for us what our diet is to be.” Ifwe are to overcome this ‘immaturity’ and fully understand the extent to which those types ofdependant relationships structure and code our existence, we must subject those discursive subject constructions to a radical (genealogical) theoretical critique. Far from rejecting Kant, therefore, in this regard I believe Foucault is quite sympathetic with Kant’s aims, and is demonstrating just how far our critical enterprise must go ifour ‘immaturity’ has any hope at all ofbeing overcome (but more on this below). Another important distance between Kant and Foucault that I would like to briefly mention is that ofthe ultimate shape ofthe two projects, which are largely determined by the direction ofinquiry. Foucault characterizes Kant’s project as “an ‘exit,’ a ‘way out.' ” And though Foucault sees less ofa teleological structure in this offering ofKant, one would be hard pressed to assert that Kant is writing outside the realm ofteleological theory/politics. Enlightenment is a process that will lead us from our state of ‘immaturity’ to a ‘mature’ state ofbeing where our correct use ofreason will be paramount. Kant may have had some doubts about our ability to arrive at a mature state, Foucault seems highly dubious. In breaking from this teleological conception ofthe project, Foucault is shifting the focus ofthe interrogation. Rather than focusing on a future state as the appropriate venue for our reasoning and reflection, Foucault is interested primarily in the past, specifically how the historical formation ofsubject positions, social practices and discourses have produced a certain type ofsubject-identity in the present. This often serves as the basis ofcriticism ofFoucauldian inspired projects: with no seeming ‘goal’ in mind other than historical investigation, what is the political import or final aim. Are we to despair because there is no way ‘out,' no Kantian ‘exit’ to hope for? Foucault seems to offer as much, his attitude ofmodernity (as opposed to an Enlightenment project perhaps) is one that is ceaselessly ‘beginning again’ because, as he says, “we have to give up hope ofever acceding to a point ofview that could give us access to any complete and definitive knowledge ofwhat may constitute our historical limits." Foucault’s never ending project that seems to take refuge in the archives rather than philosophize about the future or future goals does offer something less than satisfying ifwe are to understand a political project as one that must be organized around a major philosophical or political goal or endgame. But for Foucault, this is simply an acknowledgement ofthe importance ofpolitics. Because an endgame is an impossibility, we must disabuse ourselves ofthe notion that we will someday escape the confines or strictures ofpower, domination and politics. Far from being an anti-political theorization, Foucault seems to heighten our need to think politically, because the dynamics ofpolitics, power and subjectivity are things we will never be able to be removed from. The critical project must always begin anew because we must always be resistant to the intensification ofpower relations that also always begins anew. The realities ofpolitics and power are not, and cannot, be overcome, but it is our duty to understand them to resist them, in the present, as much as we can. It is in this Foucauldian spirit that Cornelius Castoriadis writes, “We can refute this or that political incoherence; but Auschwitz or the Gulag are not to be refuted, they are to be combated…We are not, for that, blind or lost. We are able to elucidate what we think, what we are. Having created our Labyrinth, we survey it, bit by bit.” (1986, xxvii) Though this may seem far afield from Kant’s own project, what we must away from this is that Foucault is animated, at the end ofthe day, by the very same drive that animated Kant two hundred years previous: daring to know. Given that, maybe we can see their relationship as complex but still rather connected.


Expert Help II: Arendt's World Alienation THE CATEGORY of world is crucial in Hannah Arendt’s political philosophy. Together with natality, plurality and various forms ofhuman activity (labor, action, and work), worldliness is a dimension ofthe human condition as such. But what/where is the world? As Arendt herselfexplains it in The Human Condition, “The world … is not identical with the earth or with nature …It is related, rather, to the human artifact, the fabrication ofhuman hands, as well as to affairs which go on among those who inhabit the man-made world together…” (1973, 8th edition, 52) The world then is furnished – literally and metaphorically – by the artifacts ofour hands: buildings, bridges, works ofart, articles ofconsumption. The world is full of stuff and things. But this alone does not constitute the world: it is the goings-on among human beings, their speech, their relationships past and present, their doings that constitute the world together. So the world has a thing-like, tangible and durable character which we inherit from the past; yet the world is the space wherein the "web" ofhuman relationships and affairs unfolds. In developing the concept ofthe world, Arendt was undoubtedly indebted to her teacher Martin Heidegger, for whom being-in-the-world was the existential condition of being human as such. (See Benhabib, The Reluctant Modernism ofHannah Arendt, chapter 4) In Section VI of The Human Condition, Arendt introduces the category of world-alienation. She sees three great events at the threshold ofthe modern age, each ofwhich contributes to worldalienation: the discovery ofthe Americas; the Reformation, and the invention ofthe telescope. It may be easiest to understand what she means by this term when we focus on the telescope: the telescope enabled humans to view the earth "from the viewpoint ofthe universe." The discoveries ofGalileo and Copernicus ended the earth-centric system ofastronomy and displaced the earth from being the center of the universe. Men could now view their earth as one more lonely planet among millions ofothers. To view the earth as such meant to also leave the surface ofthe earth and this is what modern technology eventually made possible. With the invention ofever-more speedy means oftransportation the world shrinks, and speed replaces distance. So, in some paradoxical way we, as moderns, "lose" the world on earth as our habitat and view it as one more possible place in the universe among others, on which life unfolds. The modern age which began with the ‘expansion’ ofthe world through the discovery ofthe Americas, leads to its shrinkage and decentering. Arendt’s account ofthe Reformation is indebted here to Max Weber’s famous essay “The Protestant Ethic and the Spirit ofCapitalism.” The Reformation not only brought the schism ofChristianity and the challenge to the authority ofthe Church, it also brought forth a group ofProtestant sects who believed in ‘inner worldly asceticism.’ Such sects as the early Calvinists, for example, believed that salvation could only come through total devotion to one’s calling through hard and disciplined work. They were


32

Expert Help

ascetic in that they denied worldly pleasures and believed that work and effort would be the only way in which the soul could prepare itselffor a salvation that was never certain and remained always elusive for humans. Weber notices that ironically, the Protestant sects who turned away from the world, in order to seek salvation, helped the development ofearly capitalism by their disciplined work and the accumulation ofwealth. There is an “elective affinity” between the spirit ofcapitalism, that is ofwealthaccumulation through methodical work, and the spirit ofCalvinism. But for Arendt, this process of wealth accumulation meant the expropriation ofthe masses whose communal lands now became private property; it also meant, as Marx noted, that everything – including labor power- could now become a commodity and be sucked up by the never-ending process ofthe production ofwealth. “The process of wealth accumulation … is possible only ifthe world and the very worldliness ofmean are sacrificed,” she writes. In conclusion then, modern technologically-grounded science as well the incessant drive ofcapitalist accumulation for ever-more wealth, make us increasingly more alienated from our common lives together as they unfold in the world ofa shared public sphere. Seyla Benhabib Eugene Meyer Professor ofPolitical Science and Philosophy Yale Univeristy World and Earth Alienation

WORLD ALIENATION must be understood in conjunction with and in distinction from earth alienation. If the "earth is the very quintessence ofthe human condition," (Arendt, 2) earth and world alienation name the threats that modern life poses to being human. To be human means to be subject to earthly constraints (fate and necessity). As an escape from those earthly constraints, world alienation is experienced from two historical factual developments. First, the exploration and mapping ofthe world have shrunk the earth by making it knowable: "nothing can remain immense ifit can be measured." (250) What is more, to know and measure the earth, man must look at the world and the earth from ever greater distances--from airplanes or from spaceships--thus disentangling man from the "all involvement in and concern with the close at hand." (251) Second, world alienation is experienced in the fact ofthe Protestant Reformation, the re-focusing of material concerns with making and spending money and owning property on otherworldly goals. Together, these two events divorced man from the worldly involvement in nearby places and particular things and help to bring about the "eclipse ofa common public world, so crucial to the formation ofthe lonely mass man and so dangerous in the formation ofthe worldless mentality ofmodern ideological mass movements...." (257) As important as world alienation is, it is "ofminor significance" in comparison with "the earth alienation underlying the whole development ofnatural science in the modern age...." (264) Ifworld alienation names the negatively viewed withdrawal from the near and the dear in the world, earth alienation is the positive demand that man orient himselffrom the universal standpoint, the Archimedean point outside of all worldly space. As the "hallmark ofmodern science" epitomized by Galileo's invention ofthe


Arendt's World Alienation

33

telescope, (264) earth alienation aims to make all things on the earth (including the earth and mankind themselves) subject to human mastery and control. It is in this sense that earth alienation, and world alienation, challenges the quintessential human condition ofbeing earthbound, subject to fate and chance beyond human control. ROGER B ERKOWITZ Professor ofPolitical Studies and Human Rights Hannah Arendt Center for Politics and the Humanities; Bard College ARENDT’ S UNDERSTANDING of world-alienation must be understood against what for her is the fundamental assumption ofmodern politics, namely, that individual life and the world itselfare “perishable, mortal, and futile.” (74) This assumption follows from the modern disentangling ofthe theological from the political, the result ofwhich renders human life mortal and futile. The modern concept ofhistory, which agrees with modern science’s view that nature is a process, offers redemption from this mortal futility by claiming that history, like nature, is a process without beginning or end; it reaches infinitely into the past and infinitely into the future, thereby conferring upon human beings an earthly immortality. While individual acts have no meaning, they can become meaningful as part ofa process that will bestow earthly immortality on human affairs. This status is no longer achieved in action, as it was for the Greeks, but simply by living in the historical process itself. According to Arendt, this modern concept ofhistorical process with its emphasis on earthly immortality, coupled with the modern scientific conviction that we know only what we make, is the condition for modern world-alienation and sets the stage for totalitarianism with its complete disregard for factuality, the givenness ofreality, and the actual deeds and incidents ofhistory: …the perplexity is that the particular incident, the observable fact, or single occurrence ofnature, or the reported deed and event ofhistory, have ceased to make sense without a universal process in which they are supposedly embedded; yet the moment man approaches this process in order to escape the haphazard character ofthe particular, in order to find meaning…his effort is rebutted by the answer from all sides: Any order, any necessity, any meaning you wish to impose will do. (88-89) World-alienation, that is, the loss ofa common and enduring sense ofreality, emerges from this concept of

history: “This twofold loss ofthe world…has left behind it a society ofmen who, without a common world which would at once relate and separate them, either live in desperate lonely separation or are pressed together into a mass.” (89-90) In Arendt’s view, world-alienation, the loss ofa shared common world, led to the all too readily acceptance ofthe hellish fantasies and fictions that fueled the German totalitarian sovereign state. PEG B IRMINGHAM Professor ofPhilosophy DePaul University


34

Expert Help

IN THE HUMAN CONDITION, Hannah Arendt describes modern world alienation as beginning in Europe. First, she believes that with the rise ofglobal exploration, the “discovery” ofAmerica, and the ability to map the world in the early modern period, human beings become less connected with what is immediately before them. They can abstract themselves from a sense ofplace. For Arendt, “speed has conquered space…” because humans can envision themselves as living upon a continuous whole that can be traveled quite easily (Arendt 250). With the invention ofthe airplane, the world can be traveled in no time at all. This shrinks the world, rather than expands it, and increases a sense ofhomelessness for humanity. The Reformation was another important factor in the rise ofmodern world alienation. Arendt believes that with the expropriation ofchurch property, the land that was held in common and farmed by the peasantry becomes more ofa liquid asset. This destabilizes the economy and turns farmers into day laborers who are no longer connected to a specific plot ofland. With the rise ofcapitalism, Arendt believes this alienation from the land spreads throughout the classes because laboring becomes connected to never-ending wealth accumulation, rather than maintenance ofthe private, specific household. Instead ofgaining sustenance, protection, and stability through the private household ofthe ancient model, persons in the modern age seek stability through class membership and citizenship in nation states. Gradually, Arendt thinks that humans view themselves as “world citizens,” further disconnecting themselves from a specific place. For Arendt, this means that the private sphere has exploded into the public sphere, creating the social. World alienation is one factor connected to the rise ofthe social, because alienation from the land is a pre-condition for the weakening ofthe private, and the consequent blurring between the public and the private that occurs in Arendt’s negative category ofthe social. Alternatively, Arendt believes that political action, when it is fully public, is based upon amor mundi, or love ofthe world, because it connects human beings to place and to other people in a meaningful way. Karin Fry Professor ofPhilosophy University ofWisconsin-Stevens Point


Why Non-Egoisitic Individuals Would Vote Rationally Benjamin Cogan Princeton University

I. Introduction To explain why individuals irrationally vote against their own, as well as society’s, interests, Bryan Caplan argues that certain types ofirrationality are, in some deeper sense, rational. Caplan argues individuals derive some benefit from irrational beliefs that outweigh the costs. For example, voting incorrectly with irrational beliefs can be seen as rational because one is unlikely to affect the outcome of an election. I argue here that Caplan does not consider the fact that individuals vote non-egoistically, a conclusion that he himselfreaches in another context. When individuals consider others, they rationally adjust their irrational beliefs. Ifindividuals do vote irrationally, then Caplan’s rational irrationality does not explain why. In this paper, I introduce Bryan Caplan’s argument for why individuals are rationally irrational and note Caplan’s counterintuitive acceptance ofmainstream economic thought. Then, I apply rational irrationality to public beliefs and introduce the self-interested voter hypothesis (SIVH). Next, I argue that Caplan contradicts himselfin both accepting rational irrationality as a plausible explanation for why individuals vote irrationally and rejecting the SIVH. In the final section, I examine a thought experiment in which individuals are merely semi-egoistic, and conclude that rational irrationality is similarly insufficient in explaining why such individuals would retain irrational beliefs.

II. Caplan and Rational Irrationality Bryan Caplan, in The Myth ofthe Rational Voter, thoroughly rejects the traditional political economy model ofvoting. The traditional story, the rational ignorance model, holds that individuals have decisive reasons not to engage in costly informational gathering and truth-seeking procedures. The opportunity costs of political reconnaissance, given how unlikely it is for one to cast a decisive vote in an election, indicate that it is irrational to vote. Caplan acknowledges how unlikely one’s vote will affect the outcome ofan election, but Caplan also jettisons the notion that voters are purposefully ignorant. Caplan argues, instead, that individuals prefer to hold irrational views that are cognitively appealing to rational (true) views that are less intuitively or socially seductive. On Caplan’s view, because one prefers to believe certain irrational views, it is rational to hold these views. Caplan calls this effect rational irrationality. Caplan explains the difference, “rational ignorance [model] assumes that people tire ofthe search for truth, while rational irrationality says that people actively avoid the truth” (2007, 123). Holding irrational views, however, comes at a cost. For example, ifan individual irrationally prefers not to buy a newspaper from a member ofa racial minority, this individual will often lose out on a cost-saving deal (138).


36

Benjamin Cogan

Under Caplan’s model, individuals tacitly engage in a cost-benefit analysis concerning belief. There are two possibilities: (1) (2)

Ifa pleasing but irrational beliefcomes at too high a cost, the individual will revise that belief, but, if holding that beliefcomes at a fairly low cost with higher benefit, the individual has little incentive to adjust his or her views.

It is important to note that Caplan’s conceptual framework is, at its core, rationalistic. One is tempted to argue the opposite; Caplan does, admittedly, hold that people are often irrational. Importantly, however, peoples’ irrationality is, on Caplan’s view, fundamentally rational. His conceptual scheme, therefore, accepts the foundational premises ofthe homo economicus model, which holds that people are always, given their preferences, perfectly rational individuals (PRIs). There is strong reason, in light ofmodern behavioral economics research, to reject this model (Ariely, 2008). For the purpose ofthis paper, I accept these basic assumptions ofPRI and argue that Caplan’s model fails even so.

III. Irrational Voting and the Self-Interested Voter Hypothesis Ofthe two possibilities enumerated above, Caplan believes that voting squarely falls within (2). This is true for multiple reasons. First, public beliefs, those beliefs that are relevant to public elections, by definition affect the public at large. Because individuals generally prefer to conform to those around them, it is especially difficult to alter one’s views concerning public issues, because everyone holds public beliefs. Issues concerning few people are not subject to these social pressures. One, therefore, derives greater benefit from holding irrational views that are ofa public concern. Second, Caplan argues that the cost ofholding irrational views that are relevant to an election is very low. Utilizing traditional cost-benefit analysis, Caplan presents an equation to determine whether holding irrational views relevant to an election would be rational. Let B = the benefit to an individual ofholding pleasing, but irrational, views. Let C = the cost ofenacting an irrational policy. IfB > C, the individual will retain his irrational views IfC > B, the individual will revise his views. Under Caplan’s model (132), C can be further broken down in the following way: Then:

Let D = difference between a voter’s willingness to pay for policy X instead ofpolicy Y. E [C] = P [D]

The expected cost ofvoting irrationally is not D (E [C] ≠D), but the probability ofdecisiveness P [D] (132). Caplan notes, “Ifp = 0, pD = 0 as well” (132). For Caplan, this conclusion justifies why holding irrational public beliefs literally comes at no cost. Caplan writes, “in elections with millions ofvoters, the


Why Non-Egoistic Individuals Would Vote Rationally

37

probability that your erroneous policy beliefs cause unwanted policies is approximately zero” (131). The chance that one affects an election by casting the decisive vote is so small as to be negligible, or just zero. There are many problems with this view. First, under a rational model, which Caplan seems to accept, individuals do not employ rough heuristics when making cost-benefit calculations. For example, Caplan, in considering whether slight psychological benefits can have an effect, writes “everyone chooses to be irrational, because the private benefits ever so slightly exceed zero” (146). As Caplan affirms here, ifan individual only has a 1 in 1,000,000 chance ofaffecting an election, p = .000001, not 0. These are not the same. There are numerous cases ofimportant political elections having been decided by one vote or coin toss (ifthe vote is a tie), including a New York Congressional election (Dubner 3). IfD is large enough such that P [D] outweighs B, and Caplan admits that B could be very low, the cost-benefit analysis could easily cause the individual to revise her views to conform with reason. Second, in affirming rational irrationality in regards to voting, Caplan implicitly accepts the self-interested voter hypothesis, which he explicitly, and convincingly, rejects later. The SIVH states that individuals always vote in their self-interest, or perceived self-interest. Though intuitively plausible, the SIVH has not stood up to empirical verification; it simply does not seem to be the case that individuals vote in their self-interest. This is not only to say that individuals do not vote in their own best interests because they also consider the interests ofthose with whom they have close ties, like their family and friends. On the contrary, individuals seem to vote, as a whole, for what they think is best for the country. This means, for example, that young people are just as likely as seniors to support senior citizen social welfare programs, like Social Security and Medicare (149). Caplan puts it succinctly: “contrary to both economists and the man in the street, voters are not selfishly motivated. The self-interested voter hypothesis—or SIVH—is false” (148,149). Ifvoters, as an empirical matter, are not egoistic, there are strong subjective reasons (and I think objective reasons) for individuals to vote.

IV. Non-Egoistic Rationality and the Inflationary Argument Let us consider Caplan’s tariffexample. He presents this case in his first thought experiment, in which voters are the same in all respects, including their egoism. But consider cases in which voters have varying levels ofegoism. In this example, voters want to irrationally believe that “the best tariffrate for people like themselves is not 0%, but 100% … a 100% tariffcould reduce per capita income by $10,000 a person, and each person could put a $1 value on fealty to antiforeign bias” (145). However, this bias leads to a stark collective action problem, “as long as the probability ofvoter decisiveness is under 1 in 10,000, each voter sticks to his beliefin the glory ofthe 100% tariff… the 100% tariffwins hands down, inflicting a net loss of$9,999 per capita” (ibid). Ifindividuals are egoistic, Caplan is correct that voters will collectively act against their own interests. But what ifindividuals are not egoistic? Let us consider the opposite side ofthe spectrum, in which voters are welfare maximizers. Compared to the egoism model, this model is actually more likely to track how individuals vote. As Caplan writes, “Most voters disown selfish motives. They personally back the policies that are best for the country, ethically right, and consistent, and consistent with social justice” (150).


38

Benjamin Cogan

In addition, let us assume that there are 20,000 people in the society. The chance ofvoter decisiveness is 1/20,000 = .00005 = p. Again, the net effect on each person from the tariffis $10,000. The benefits to retaining antiforeign bias remain $1. The costs = P [D]. IfD is the difference between a voter’s willingness to pay for policy X instead ofpolicy Y (0% tariffand 100% tariff), the individual cannot only consider this difference for herself, but for the rest ofsociety, too. The net effect is: $10,000 (net effect oftariffto each person) x 20,000 (number ofpeople in society) = $200,000,000. The costs, P [D], is: .00005($20,000,000) = $10,000. This means, contra Caplan’s conclusions, that the benefits ofadjusting one’s irrational views clearly outweigh the costs ofmaintaining them. So non-egoistic voters would, in fact, vote against the tariff. It is no accident that the benefit that the non-egoistic individual considers in the cost-benefit analysis is equal to the private benefit without a tariff($10,000). Ifvoters consider everyone’s interests equally, including their own, this will always be the case. This is because the decisiveness ofan individual’s vote co-varies inversely and proportionally with the number ofpeople in, and affected by a policy in a society. With a larger population, the chance that one’s vote is decisive is smaller, but the number ofpeople who are affected by that decisive vote is greater. Let us consider another thought experiment, but with a very small society: only 5 individuals. The chance that one’s vote is decisive in an election is 1/5, or .2. All other assumptions, including welfare maximization (non-egoism) and conformity, hold true. The benefits ofantiforeign bias remain $1, and private costs ofthe tariffremain $10,000. Would a PRI adjust her irrational views? The costs ofnot doing so would be P [D], or .2($10,000) x 5, or $10,000. IfCaplan would agree that it would be rational to adjust one’s views in this society, which he presumably would as P is relatively big (.2), his larger argument is subject to what I will call the ‘inflationary objection.’ At what point between the fiveperson society, the 20,000-person, or the 3 hundred million-person society does retaining irrational views become rational? Because costs remain higher than benefits across time, it is clear that it is never rational, even on Caplan’s grounds. If, as Caplan argues, the SIVH is false, and individuals consider other peoples’ interests when voting, Caplan’s argument is self-contradicting. In a further thought experiment, Caplan considers a case in which individuals are perfectly non-egoistic, as discussed above. He concludes, “even though everyone wants to maximize social welfare, even though democratic competition gives the people what they want, the outcome paradoxically disappoints” (152). This is not the case unless the psychological benefits ofholding irrational views are immense. PRIs would hold, with Caplan’s cost-benefit logic, rational views.


Why Non-Egoistic Individuals Would Vote Rationally

39

V. Semi-Egoistic Rationality It is likely true that individuals are neither completely egoistic nor completely objective when entering the voting booth. It is probably the case that the SIVH has an element oftruth, and voters are, ‘semiegoistic;’ individuals give more weight to their own interests, but consider others as well. He does admit, for example, that smokers are much more likely to support “smokers’ rights” than non-smokers (150). Under Caplan’s scheme, would semi-egoistic individuals revise their irrational views? Let us consider individuals who I will call near-egoistic. These individuals value the interests ofothers at only 1/100th ofthe level they value their own, so their egoism rate is .01 (with 1 being perfectly nonegoistic). It is probably true that real people are not nearly as egoistic, but I will examine this extreme case to show why Caplan’s model fails even when the assumptions are extreme. Because the number of people in the society in question affects the outcome, I will assume that there are 1 million people in society, roughly the size ofthe average American Congressional district. Under these conditions, the chance that a particular voter is decisive is .000001. The benefits ofantiforeign bias remain $1, and private costs ofthe tariffremain $10,000. The costs are P [D], or (the chance that my vote is decisive) x $10,000 + (the chance that each other person’s vote is decisive) x ($10,000) x (the number ofother people) x (the egoism rate) = (.000001)($10,000) + (.000001)($10,000)(999,999)(.01) = $100.0099. This is certainly greater than $1, so the PRI would adjust his or her irrational views, even ifhe or she were almost completely egoistic. Caplan’s non-adjustment conclusion could only succeed ifthe PRI derived a much greater benefit from holding irrational views, or ifshe were almost absurdly egoistic, an assumption that Caplan believes is false. While it seems almost certainly true that individuals, vote irrationally in many cases. This irrationality is not, however, fundamentally rational. Works Cited

Ariely, Dan. Predictably Irrational: The Hidden Forces That Shape Our Decisions. New York, NY: Harper, 2008. Caplan, Bryan Douglas. 2007. The Myth ofthe Rational Voter: Why Democracies Choose Bad Policies. Princeton: Princeton University Press. Dubner, Stephen J., and Steven D. Levitt. "Why Vote?" Freakonomics. The New York Times, 6 Nov. 2005. Web.


The Maximin Criterion in Rawls's A Theory ofJustice

Ioana-Elena Oană National School ofAdministration and Political Science ofBucharest, Romania I. Introduction Starting with a contractualist premise similar to those used by John Locke, Jean-Jacques Rousseau, or Imannuel Kant in their theories, John Rawls employs the argument for justice as fairness as the basis of contract for the liberal society. Rawls determines the principles ofsocial justice by imagining people as put in an original position in which they are covered by a veil ofignorance. The principles that individuals agree upon under these terms include, according to Rawls, the need for impartiality. The emphasis on contract and impartiality thus advances Rawls theory ofjustice as an alternative to the utilitarian tradition which sacrifices the individual for the maximization ofthe global utility function. Rawls's original position revolves around the idea ofrationality. As a consequence, the individuals, being individual utility maximizers, do not choose the principles ofjustice from a certain moral standpoint or for empathic reasons. The maximin criterion ofrational choice, thus, plays an important role in Rawls's theory ofjustice. The maximin criterion states that the strategy that should be used in choosing from several possible strategic options is the one that maximizes the minimum payoff. This paper surveys the critiques brought against the maximin principle and advocates replacing the maximin criterion with the minimax regret principle under conditions ofimperfect information.

II. Rawls's Theory ofJustice and the Maximin Principle For Rawls, the basic structure ofsociety is formed by the way in which major social and political institutions are arranged. Rawls argues that these arrangements are the location ofjustice as fairness inside the liberal society, because institutions are the ones that distribute the principal benefits and burdens ofsocial life (Weinar 2008). In other words, the principles ofjustice must describe the basic structure ofsociety. Following this argument, Rawls formulates two principles: the principle ofequal basic liberties and the principle ofpermitted inequalities. The first principle says: "Each person has the same indefeasible claim to a fully adequate scheme ofequal basic liberties, which scheme is compatible with the same scheme ofliberties for all" (Rawls 1971, 60). The second principle states that social and political inequalities are to be arranged so that they "are to be ofthe greatest benefit to the least-advantaged members ofsociety and that are to be attached to offices and positions open to all under conditions offair equality ofopportunity" (60). The first part ofthe second principle is also called the difference principle (the maximin principle), and the second part the principle offair equality ofopportunity.


41

The Maximin Criterion in Rawls' Theory ofJustice

Rawls arranges these principles according to their priority, the first principle being prior to both parts of the second principle. Under this set ofpriorities, the need for freedom is satisfied first and the need for permitted inequalities is accommodated only after. The principle offair equality ofopportunity is, in turn, prior to the difference principle. This arrangement according to priority therefore translates into satisfying the needs ofthe first principle before going on to the second one comes from the fact that "the efforts to satisfy a certain principle ofjustice can be conflictual with the efforts to satisfy a different one" (Oyeshile 2008). Both the formulation ofprinciples and their arrangement according to priority are the result ofthe judgements made in the hypothetical situation ofchoice called the original position. From the original position, actors rationally try to maximize their own utility. They are egoistic, disinterested in the others, and want to get a slice ofbenefits as big as they possibly can. However, the veil ofignorance puts each actor in a situation ofimperfect information. As a consequence, each actor is rendered unable to make presuppositions on the position they will occupy in the society by the veil ofignorance. This informational limitation makes all actors take unbiased decisions and imagine that they could get in the worst possible situations. From the position described above, Rawls argues that the decision-makers will adopt the maximin criterion in choosing the future principles, their attention focused on trying to avoid the worst possible positions. The maximin criterion means the hierarchical arrangement ofthe worst situations and choosing the best ofthese ones. This takes place because ofthe fact that not knowing the situation in which they will get, the actors have a "conservatory attitude towards risk" (67). Rawls’ criterion differs from criteria used in the utilitarian theories ofjustice. Utilitarians employ a strategy which is more similar to a maximax (maximizing the maximum) strategy. Rawls argues that although maximax strategies aspire to the maximization ofthe global utility, they also can bring about bad outcomes like slavery. These are avoided in the theory ofjustice as fairness because ofthe priority ofthe equal basic liberties principle and because ofthe usage ofthe maximin criterion.

III. Critiques brought to the maximin principle Taking a practical example for showing the way in which the maximin criterion functions we can imagine two possible choices, A and B: Choice

Max Benefit

Min Benefit

A

3

2

B

100

1


42

Ioana-Elena Oană

Choice A guarantees in the worst case obtaining 2 units ofutility, and in the best case obtaining 3 units. Choice B offers 1 unit in the worst case, but 100 in the best one. Applying the maximin criterion we would choose A, avoiding the worst possible outcome. As a consequence, we arrive to a disproportional result ifwe follow the premise that each unity ofgood has the same marginal utility. Oyeshile (2008) criticizes the maximin criterion in Rawls's theory ofjustice saying that it implies a minimum level, M, under which the marginal utility ofgoods or benefits is high, and above which it is low. He argues that even in this case which tilts marginal utility in favor ofmaximizing the minimum, there is still some point above M that is high enough above M in its payout to be worth risking a deviation from the maximin strategy. Two more criticisms ofthe maximin criterion come from Robert Wolffand Robert Nozick. Wolffargues that the persons from Rawls's original position which, after they come out ofthe veil ofignorance, show themselves the most capable, most productive and energetic will be inclined to regret that they have chosen a conservatory principle ofdistribution (68). As a consequence, the commitment ofenergetic peoples to the initial principles will be diluted upon exiting the original position. Nozick criticizes the maximin criterion on grounds that the difference principle is fundamentally unfair (Ree 2005). Nozick argues that Rawls uses the persons in the original position as means to the objectives ofother persons breaking Kant's categorical imperative that Rawls claims he uses (Ree 2005). This principle limits the individuals from what could be the best outcome they could get through their effort and talent. As a consequence, freedom is surpassed and an intervention higher than minimal ofthe state in the life ofthe individual is produced.

IV. A New Criterion: minimax regret The minimax regret criterion entails a choice based upon minimizing the regret or the opportunity cost of foregoing other strategic choices. Thus, in choosing from different possible situations we will select the situation with the lowest regret or opportunity cost associated, the former being calculated as the difference between the best and the worst outcome. The adoption ofsuch a criterion leads to the disappearance ofthe difference principle, but retains the principle ofthe equal basic liberties and the principle offair equality ofopportunity. The minimax regret criterion responds to all three critiques formulated above. Minimax regret solves the problem ofmarginal utility by comparing opportunity costs instead ofthe raw utility payouts. This minimax regret criterion can lead to the selection ofthe situation in which the opportunity cost obtained is lower than the one obtained by using a maximin criterion (situation similar to the one described in the previous chapter). As a response to Wolff's critique, it avoids regret, and thus performs better in minimizing the loss ofcommitment towards the principles agreed upon after leaving the original position. Finally, in response to Nozick's critique, the minimax regret criterion reduces constraints on those capable ofgetting the best outcome because the maximum ofa situation is taken into consideration as well, not just the minimum.


43

The Maximin Criterion in Rawls' Theory ofJustice

V. Conclusions Choosing the principles ofjustice in Rawls's theory is made in the original position under the veil of ignorance. Thus, the principles, although having moral implications, are taken on a rational basis under conditions ofimperfect information and are not based on the attachment to certain moral values. In this situation, Rawls argues for the decision uses the maximin criterion. Rawls' use ofthis criterion in formulating the difference principle suffered, however, a series ofcritiques leading to the search for a replacement. Because it responds to all the critiques mentioned above, the minimax regret criterion, decision making criterion under conditions ofimperfect information based on comparing opportunity costs, is a criterion that could successfully replace the one used by Rawls. However, the new criterion leads to the disappearance ofthe difference principle as formally stated, making the new formed theory closer to the "minimal state" theory ofNozick, assuming less interference in the life ofthe individual by arranging social and political inequalities in a new way. Nevertheless, this paper is limited in studying the broader effects ofadopting a new principle and recognizes the importance ofstudying these more carefully when constructing a theory ofjustice. Works Cited

Fishkin, James. 1975. “Justice and Rationality: Some Objections to the Central Argument in Rawls's Theory.” The American Political Science Review 69 (2): 615-629. Oyeshile, Olatunji, A. 2008. “A Critique ofthe Maximin Principle in Rawls's Theory ofJustice.” Humanity and Social Sciences Journal 3 (1): 65-69. Rawls, John. 1971. A Theory ofJustice. Oxford: Oxford University Press. Ree, Jonathan. 2005. “Robert Nozick.” In The Concise Encyclopedia ofWestern Philosophy, edited by Jonathan Ree and J. O. Urmson. Oxford: Routledge. Wenar, Leif. 2008. “John Rawls.” In Stanford Encyclopedia ofPhilosophy (Fall 2008 Edition), edited by Edward N. Zalta. Article published March 25, 2008.


Placing Prerogative Outside the Constittuion Aaron Sinner College ofSaint Benedict/Saint John's University

John Locke’s concept ofexecutive prerogative still instructs current legal understandings ofthe expansion ofexecutive power over the last century. Today—as presidents and their legal teams advance conceptions offar-reaching, constitutionally-permissible executive powers—clearly understanding the scope and function ofexecutive prerogative has become more important than ever. Modern circumstances might seem to demand the location ofemergency powers within the executive’s constitutional authority. Alexander Hamilton and Thomas Jefferson held two conflicting views on executive prerogative, and the conflict between their two views clarify the importance ofunderstanding the limits ofexecutive power. What results from this conflict is an understanding that executive prerogative must not be seen as located within the president’s constitutionally-derived powers. Properly understood, an executive prerogative that exists outside the Constitution best represents the proper location ofthis power.

I. The Forefathers ofPrerogative To understand executive prerogative, one must begin by looking to John Locke. According to Larry Arnhart, Locke defined executive prerogative as “the power ofthe executive to act for the public good in those cases where action by the legislature would be impossible or ineffective” (1979, 124). Clement Fatovic offers that executive prerogative “gives the executive discretion to act not only where the law is silent, but ‘sometimes even against it’” (2004, 430). Fatovic’s conclusions support Arnhart, stating Locke’s theory requires executive prerogative be exercised for “the public good” (430). At its most essential, executive prerogative acknowledges that unforeseen circumstances sometimes require executive action contrary to the law because the lawmakers—legislatures—are not as equipped for speedy action. Ross J. Corbett makes this clear when he writes, “No innovative ordering ofthe legislative power can overcome this inadequacy” (2006, 434). Executive prerogative is a necessity for any government employing a constitutional scheme with separated powers. Yet, where executive prerogative is located within the American constitutional system is a matter hotly contested even among the Founding Fathers. Thomas Jefferson believed executive prerogative to be an extra-constitutional power. As Fatovic explains, “Prerogative must therefore be an extraconstitutional power in as much as the Constitution contains no explicit provision allowing the president to exceed the law” (2004, 434). It was nonetheless a usable power; as Fatovic goes on to write, “Jefferson believed that an extraordinary act ofexecutive power could be both illegal and legitimate” (434). As David J. Siemers notes, “ results were [Jefferson’s] barometer ofsuccess” (2009, 67). Thus, Jefferson’s utilitarian orientation towards government led him to believe following the written law was not the highest duty of a good citizen; laws, after all, are means to an end. Jefferson’s beliefwas that in times ofnecessity, the president could act outside the Constitution, acknowledging his deed and appealing to the citizenry


Placing Prerogative Outside the Constitution

45

for justification. Since all power ultimately rests in the hands ofthe citizens, citizens would judge whether the illegal action was justifiable or not. In fact, Jefferson admitted that their judgment might be imperfect, as Fatovic suggests: “Jefferson offered no guarantee that the officer who took such a risk would be vindicated, but his concern was not to protect the executive from prosecution. It was to preserve the foundations offree government” (19). Again, Jefferson emphasizes the overall result, sacrificing the good ofthe executive ifnecessary. In stark contrast, Alexander Hamilton refused to accept this standard ofjudgment upon the executive, fearing it would discourage a president from exercising executive prerogative even when necessary. Fatovic writes, “The problem with Jefferson’s conception ofexecutive power as Hamilton saw it, though, is that it turns the executive into a law-breaker” (2004, 435). Hamilton believed that ifextraconstitutional powers were necessary to preserve the nation, then the Constitution was not up to snuff. Therefore, the Constitution must allow for executive prerogative as an intrinsic executive power. Fatovic notes, “Hamilton declared that one ofthe self-evident and universal truths ofpolitics is the idea that the powers ofgovernment to deal with emergencies ‘ought to exist without limitation’” (437). It is important to recognize, however, that Hamilton’s statement does not refer exclusively to the executive. Hamilton did not believe the power ofexecutive prerogative ought to be unchecked. Rather, “the burden falls on the people or their representatives to demonstrate that the executive exceeded his or her authority” (Fatovic 2004, 433). Everything the executive did would be subject to scrutiny and checks by the people and legislature—and while the executive’s powers might not be able to be checked beforehand—they were subject to condemnation after the fact.

II. Constitutional and Extra-Constitutional Criteria Considering these two views ofexecutive prerogative, trade-offs occur with the selection ofeither one at the expense ofthe other. For instance, Jefferson’s view ofan extra-constitutional executive prerogative risks an executive acting outside the Constitution becoming normal. Secondly, Jefferson’s view ofthe legitimate law-breaking president could mean that the Constitution declines in importance and is no longer respected as the legitimate source ofgovernment action. Jefferson’s view ofextra-constitutional power carries with it the possibility that a president acting in good faith could be punished, likely discouraging presidents from utilizing executive prerogative even when circumstances in fact call for its use. Finally, Jefferson’s position risks a president who acts without governmental checks because he or she has invoked a power outside the Constitution with no clear means ofreprimand. However, Hamilton’s view ofconstitutional prerogative risks that an expansive legal authority for executive power could become the norm. Hamilton’s view ofemergency executive powers implicit in the Constitution could mean the Constitution is seen as meaningless, simply including those things that the government considers desirable. Further, Hamilton’s constitutional power chances a president who is too hard to punish ifhe or she abuses executive prerogative. Finally, Hamilton’s position risks a president who acts without proper governmental checks because any actions he or she takes are legal, and even then can only be checked after the fact.


46

Aaron Sinner

In siding with either Jefferson or Hamilton, one must acknowledge these trade-offs and address the shortcomings ofthat view on executive prerogative. Otherwise, one has not properly evaluated the effects ofplacing executive prerogative either outside or inside the Constitution.

III. The Scholars Speak: A Literature Review Jefferson’s and Hamilton’s views are not the only two camps into which scholars can fall. For instance, Larry Arnhart explicitly rejects both approaches and argues that Locke’s executive prerogative has no place in a constitutional democracy, a view that raises important concerns for this debate. Arnhart refutes Jefferson by declaring, “The framers intended that the Constitution be equal to every emergency” (1979, 122). Arnhart then focuses on the habeas corpus provision ofthe Constitution as evidence that the Founders built in explicit emergency powers that they did not intend to be surmounted, distancing himselffrom Hamilton. Arnhart rejects the idea that scenarios truly exist which might require the executive to act against the law or where it is silent, and asserts that the clearly-defined powers within the Constitution are enough to handle any crisis. It is important to note that Arnhart is writing in 1979.Admittedly, he does an excellent job highlighting the inherent difficulties in reconciling executive prerogative with a constitutional democracy. However, his claim that “The framers intended that the Constitution be equal to every emergency” fails to answer the question, “But what ifit’s not?” In the post-9/11 world, Arnhart’s refutation ofJefferson by asserting there are no problems the Constitution cannot address seems short-sighted, at best. Still, Arnhart’s critique ofHamilton’s position continues to have merit. His case that the Founders have already written in specific emergency powers is a strong one, and makes it much harder to simply place emergency powers and executive prerogative within the Constitution’s general grant ofexecutive power. The habeas corpus example, wherein the Constitution specifically recognizes that crises may arise requiring the writ of habeas corpus to be suspended demonstrates the Founders were thinking about emergencies. Their specificity in including this power undercuts the argument that other crisis powers would be included in a general grant ofpower later. In fact, the Constitutional Convention featured a specific debate concerning those conditions under which habeas corpus could be suspended, and how exactly to phrase that provision ofthe Constitution (Yale Law School 2008). In contrast, Ralph Ketcham’s (2003) collection ofpapers on the Convention demonstrates it spent very little time debating the extent ofexecutive powers. Rather, the vast majority ofdebates around the executive focused on how he or she was to be elected, the length ofterm, and whether the president would be eligible for reelection. Even which body ofgovernment would try presidential impeachments appears to have garnered more debate than the extent ofpresidential powers (114-120, 165-171). When executive powers were discussed, it was done in broad terms, with debate composed near-universally of statements about the need to limit executive power so as to prevent a tyrant or monarch (42-42, 47-49). In fact, in George Mason’s speech opposing the Constitution as written, he objected not so much to the strength ofthe executive as to the executive’s weakness and lack ofindependence, declaring that the president would “generally be directed by minions and favorites; or he would become a tool ofthe Senate” (174). Perhaps the Framers all simply assumed executive prerogative and the capacity for unlimited power in responding to crises was embedded in the Constitution’s general grant ofexecutive power, but Madison’s notes on the Constitutional Convention make this unlikely. More likely is that the


Placing Prerogative Outside the Constitution

47

Framers explicitly specified in the Constitution those emergency powers they intended to grant to the federal government, such as suspension of habeas corpus. In the end, this does not answer the question of what a president is to do ifhe or she is confronted with a crisis for which the Constitution is not prepared and has not specified crisis powers. At the far extreme is John C. Yoo, Deputy Assistant Attorney General under President George W. Bush. On September 25, 2001—two weeks after the September 11 al Qaeda terrorist attacks—Yoo authored a memo justifying an expansive use ofexecutive power. Because the president’s authority to make a unilateral military move against terrorists and nations supporting them falls within the category ofactions where the law is silent or contradictory to the action, the memo is correctly viewed as a justification for executive prerogative. In claiming that this exercise ofexecutive power is Constitutionally permissible, Yoo quotes selectively from Hamilton—over 80% ofYoo’s quotes from Founding Fathers or the Constitutional Debates invoke Hamilton’s words. Not only does Yoo treat Hamilton almost as ifhe were the sole Founder, he bends Hamilton’s understanding ofexecutive power to its breaking point. Yoo does this by treating Hamilton’s references to federal power as references to purely executive power as well as using quotes from Hamilton to distort Hamilton’s view ofLockean prerogative. Yoo’s examination ofthe Constitution ultimately leads him to conclude that decisions regarding military retaliation to the September 11 attacks are “ for the President alone to make” (U.S.A. Department of Justice). But as scholar Clement Fatovic (2009) points out, Locke “gives the impression that only a severe crisis that both threatens fundamental values and leaves no time for legislative action would justify resorting to extraordinary powers” (16). Even Hamilton would have held this view. As Fatovic (2009) points out, “Even though the terrorist attacks ofSeptember 11 occurred about eight years ago, the situation today is still described as an emergency that justifies the continued use ofquestionable constitutional and statutory powers in a war with no end in sight” (18). Yoo’s definition ofexecutive prerogative is not limited to time and place; pushing Hamilton’s view to the extreme, Yoo suggests that if a president ever has a power, then he always has that power, and the Constitution “confides in the President the authority” to make such a determination unilaterally (U.S.A. Department ofJustice 2001). Falling between Arnhart’s and Yoo’s views is the more moderate view ofGeorge Thomas, who believes Hamilton has the correct answer to the executive prerogative riddle. Thomas (2000) points to historical examples to argue “that our judgments ofsuch a use ofpower are, ofnecessity, after the fact” (534). In line with Hamilton’s thinking, Thomas sees evaluation as coming after action is taken—evaluation by the people and by the other branches ofgovernment, who can act against the president ifhis or her use of power is inappropriate. Thomas identifies the key as the interplay between the branches acting as check, allowing ambition to counteract ambition. A president can misuse executive power without acting illegally; after all, “prerogative is an inherent power derived from the government’s power to preserve itself” (Thomas 2000, 536). But checks from the other branches and the people exist when it is misused. In Thomas’s view, Hamilton’s understanding ofexecutive prerogative is superior to Jefferson’s because Jefferson’s view makes executive prerogative “necessary but strictly illegal. Necessity suggests that the President can, in fact, set aside the Constitution, and in setting aside the Constitution, the Congress, the courts, and the people are then truly powerless” (544). Only by declaring a power Constitutional and allowing the interplay ofthe different branches to check its abuse can prerogative be used but properly limited. For Thomas, declaring executive prerogative extra-constitutional is even more dangerous than


48

Aaron Sinner

a seemingly unlimited executive power because once prerogative moves outside the Constitution, there are no clear means by which to check its misuse. Thomas makes a mistake here in not recognizing that as an extra-constitutional power, exercises of executive prerogative are strictly illegal, not shielded from outside criticism by some invocation ofthe power ofexecutive prerogative. At the end ofthe day, even ifexecutive prerogative is categorized as extra-constitutional, invoking prerogative does not give the president carte blanche. Rather, viewed from Jefferson’s position, the president has broken the law for the good ofthe country. He or she is subject to the law and to public opinion. Such a case could result in the impeachment ofthe president, where during the impeachment trial, the president’s defense is, “Though my actions were illegal, the facts clearly show I had no other choice.” Thus Congress, the courts, and the people are not so callously tossed aside, as Thomas assumes. Furthermore, Thomas overlooks the fact that even without appeals to executive prerogative and the common good, a president could still ignore Congress, the courts, and the people, but by viewing executive prerogative as extra-constitutional, the president cannot claim that such action is within his Constitutional rights and hide behind the shadow ofexecutive prerogative. Rather, stating that executive prerogative is extra-constitutional means that in his or her defense, the president must admit guilt, but ask for pardon based on the facts ofthe case. Though Thomas attempts to defend the Hamiltonian perspective on executive prerogative, his argument overlooks key facts about the Jeffersonian view that prevent him from easily dismissing the Jeffersonian view. Unfortunately, defenders ofJefferson’s view ofexecutive prerogative have thus far done a poor job explaining and defending this Founder’s stance. For instance, Ryan Cooper strongly supports a Jeffersonian view ofexecutive prerogative, declaring, “[A]ny act which violates the dictates ofthe Constitution is illegal, regardless ofcircumstance or claims to necessity” (2009, 31). Cooper views the debate as one between those who sacrifice inherent meaning in the Constitution in favor oflimitless legal emergency powers and those who see the Constitution as having a fixed meaning with fixed powers while recognizing that some circumstances could require action that exceeds that fixed meaning. He writes: Defenders ofthe internal perspective must be willing to defend that the Constitution has no stable meaning, but rather its meaning is defined in reference to the present political environment… preserving the universality ofthe Constitution’s authority, necessarily means diluting the integrity and coherency of its meaning. (Cooper 2009, 30-31)

Cooper offers a choice between a meaningful Constitution that can be violated and a meaningless Constitution that cannot be. Cooper’s defense ofa Jeffersonian view begs the question. Cooper assumes the Constitution does not permit executive prerogative, and then argues that to allow it to do so would make the Constitution meaningless. But ifexecutive prerogative in crises is a legitimate component ofthe executive power granted to the president, then the Constitution is not meaningless. Ifexecutive prerogative is embedded


Placing Prerogative Outside the Constitution

49

in the grant ofexecutive power, then a view ofthe power as Constitutional sacrifices no meaning at all, rendering Cooper’s argument inert. Another defender ofextra-constitutional executive prerogative is Ross J. Corbett. Though he still stands clearly within Jefferson’s camp, his analysis ofLocke has slightly different implications than Cooper’s,. Corbett writes, “prerogative is not a form ofexecutive power as Locke defines it” (2006, 445). Thus, it makes no sense for executive prerogative to be a constitutional power. Rather, its extra-constitutionality arises from the fact that “prerogative was possessed before society was constituted, i.e., that it is a natural power” (Corbett 2006, 443). Prerogative is therefore a natural right shared by all citizens; the executive simply has more power than most to act where the law is silent or in contradiction ofit when the public good requires such action. Corbett argues that laws are tools, not ends in themselves. As evidence, he points to the executive pardon as an occasion where the President can excuse actions by ordinary citizens who violate the law for the common good. Yet the executive cannot pardon himselfor herself; rather, when the president violates the law he or she must turn to the people for pardon. This matches the system for which Jefferson advocated. While Corbett’s analysis ofLocke is intriguing, his argument for extra-constitutional executive prerogative as a natural power ofindividuals represents unnecessary overreaching. Such a framing relies upon conceptions ofnatural rights not universally shared. For a defense ofJeffersonian executive prerogative to have more staying power, it should not rely on an appeal to conceptions such as natural rights. An argument for Jefferson’s perspective ought to wrestle with the trade-offs between Hamilton’s and Jefferson’s views and explain why Jefferson’s view comes out on top.

IV. Where Prerogative Should Lie: Applying Extra-constitutional Criteria The first major trade-offbetween Jefferson's extraconstitutional view and Hamilton’s constitutional view is whether one risks normalizing law-breaking through Jefferson’s view or risks normalizing expansive and legal executive power through Hamilton’s view. Here, one must acknowledge the perverse incentives created by the Hamiltonian view. To attempt to make executive prerogative Constitutional is to force elected officials to claim their actions are always legal. As Fatovic explains, “Contrary to assertions that the Bush administration exhibited utter disregard for the law in its efforts to prevent ‘another 9/11,’ there is evidence that the Bush administration actually took an ‘excessively legalistic’ approach in seeking to justify some ofthe most controversial policies it adopted in the first few years of the attacks” (2009, 14). It is this “excessively legalistic” behavior that truly risks setting a precedent. Yoo’s (2001) legal memo serves as a historical example ofwhat happens when the president is placed in a situation where he or she must attempt to justify behavior as legal, setting expansive executive power precedents along the way. Better to simply admit that the executive has broken the law and is subject to legal punishment, should the public through its elected representatives enforce the broken law. Even a Jeffersonian precedent ofsometimes-permissible lawbreaking is much less dangerous ifall parties acknowledge the president has no guarantee ofgetting offscot-free. The second trade-offworth considering is whether one risks a declining respect for the Constitution due to justified executive law-breaking or a declining respect for the Constitution due to its portrayal as a document that justifies any executive action. Cooper’s (2009) argument could have some traction here if supplemented by both Arnhart’s (1979) reasoning regarding the Founder’s intention to explicitly


50

Aaron Sinner

incorporate emergency powers into the Constitution and a close reading ofthe Constitutional Convention debates on executive power. Furthermore, it is worth asking why the Constitution must be held in the highest esteem: is it truly more desirable that Americans respect a Constitution with a broad meaning that offers no limitations on executive crisis actions, rather than that Americans must be asked to discern whether a president’s actions are just, though not legal? To worry about a declining respect for the Constitution is to assume the Constitution is worth preserving, and ifit offers a limitless grant of power to the president under the general label of“executive power,” this question must be taken seriously. Ifthis is how the Constitution must be understood in order to preserve respect for the document, then perhaps it is not worthy ofthat respect, after all. A third major trade-offis the punishment ofa president who legitimately uses Jeffersonian executive prerogative, therefore discouraging presidents from its use, weighed against a president who cannot be easily punished when using Hamilton executive prerogative and therefore risks abuse. That Jefferson and Hamilton had this debate is understandable, but now that the Constitution has been in place for over two hundred years, historians can look at the office ofthe presidency over that period—and particularly over the last hundred years—to make a judgment over what appears to be the bigger gamble. Almost uniformly, inhabitants ofthe White House over the past century have been ambitious risk-takers rather than indecisive milquetoasts. The character ofpast presidents serves as a strong indicator that the true danger is in making executive prerogative too easy to use rather than too risky. A final major trade-offis between the invocation ofan extra-constitutional power with no clear means of punishment and a Constitutional power with no clear means ofevaluation. Yet to characterize Jefferson’s position as carrying this risk is to make the same error that Thomas made, in thinking the president has a claim ofexecutive prerogative to hide behind. Rather, the true risk is in a president who claims everything he has done is legal and permissible, as Congress and the people then have no clear immediate means ofchecking his action. Ifit is legal for the president to break the law, then the nation’s lawmakers are no longer a check on his power. Though a trade-offis made no matter the view taken, it is Jefferson’s perspective on executive prerogative that ultimately appears most attractive. Admittedly, it is logical for presidents to subscribe to a Hamiltonian view and attempt to place their actions within those powers that the Constitution permits. After all, “The Constitution permits it” is a much stronger defense than “What I did was unconstitutional, but I had a good reason.” The president cannot be the one to advance the extraconstitutionality ofexecutive prerogative argument; rather, scholarship and the American public must unite behind the idea, allowing the public to call out the president when he or she takes an excessively legal stance towards actions. It might be difficult for the public to separate right-and-wrong from legaland-illegal—yet this is all the more reason for executive prerogative to be an extra-constitutional power. By recognizing that the president does have a possibility ofdoing something illegal yet going unpunished, defenders ofthe president will not feel the same need to justify his or her right actions as legal when they are not. This will preserve the Constitution as a meaningful document and help make uses ofexecutive prerogative the exception, not the norm.


51

Placing Prerogative Outside the Constitution Works Cited

Arnhart, Larry. 1979. “’The God-Like Prince’: John Locke, Executive Prerogative, and the American Presidency.” Presidential Studies Quarterly 9 (2): 121-130. JSTOR (November 7, 2010). Cooper, Ryan. 2009. “Meaning versus Authority: A Defense ofExtra-Constitutional Prerogative.” Critique: A Worldwide Student Journal ofPolitics Spring 2009: 25-37. Political Science Complete (November 4, 2010) Corbett, Ross J. 2006. “The Extraconstitutionality ofLockean Prerogative.” The Review ofPolitics 68: 428-448. JSTOR (November 7, 2010). Fatovic, Clement. 2004. “Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives.” American Journal ofPolitical Science 48 (3): 429-444. Political Science Complete (November 2, 2010). Fatovic, Clement. 2009. “Settled Law in Unsettling Times: A Lockean View ofthe War on Terror.” The Good Society 18 (2): 14-19. Academic Search Premier (November 5, 2010). Ketcham, Ralph, Ed. "The Federal Convention of1787." The Anti-Federalist Papers and the Constitutional Convention Debates. New York, NY: Signet Classic, 2003. pp. 29-180. Print. Kleinerman, Benjamin A. 2009. “Lincoln’s Example.” The Discretionary President: The Promise and Peril of Executive Power. Lawrence, KS: University ofKansas Press. pp. 165-187. Print. Siemers, David J. 2009. “Thomas Jefferson: Notes from a Prophet ofProgress.” Presidents and Political Thought. Columbia, MO: University ofMissouri Press. pp. 46-73. Print. Thomas, George. 2000. “As Far as Republican Principles Will Admit: Presidential Prerogative and Constitutional Government.” Presidential Studies Quarterly 30 (3): 534-552. JSTOR (November 7, 2010). U.S.A. Department ofJustice. Office ofLegal Counsel. September 25, 2001. The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them. By John C. Yoo. Department ofJustice. Web. <http://www.justice.gov/olc/warpowers925.htm> (October 31, 2010). Yale Law School. 2008. "Madison Debates." Lillian Goldman Law Library. Accessed December 7, 2010. http://avalon.law.yale.edu/18th_century/debates_828.asp.


Aristotle's Polity and the Role ofFriendship Katelyn Abraham South Dakota State University

It is clear that all partnerships aim at some good, and that the partnership that is most authoritative ofall and embraces all the others does so particularly, and aims at the most authoritative good ofall. This is what is called the city or the political partnership. (Aristotle 1984b, 1252a3-6)

So begins Aristotle’s Politics, one ofphilosophy’s earliest understandings ofthe perfect, or at least most attainable, regime for most men. Through Aristotle’s exploration ofperfect friendship, as taken from the Nicomachean Ethics and the Politics, one sees that Aristotle’s polity requires the idea offriendship to work at full potential. Aristotle claims that the ultimate goal ofevery individual, “the final and perfect good,” is to be selfsufficient (Aristotle 1984a). At first glance, this goal seems contradictory to the idea offriendship as a basis ofthe good polity. Yet, when Aristotle discusses different types ofregimes in Politics, Aristotle states that the city is to be self-sufficient, not the individuals living within the city. Cities are not built specifically to protect the citizens from injustice, although this is one consequence ofproviding a community that lives well. Families and villages, not individual men, come together to form cities. Political partnerships are formed for the sake ofnobler causes than simply living together. Affection, and therefore friendship, “is the intentional choice ofliving together” (Aristotle 1984b, 1280b30-1281a7). For each individual to be self-sufficient there would have to be no city at all. Each person does not live his life in isolation, but with family, friends, and other citizens. Each person wants to appear selfsufficient, but his or her social nature does not allow it (Aristotle 1984a, 1097b10). Each person is inherently a political being, who seek to live in a community not only out ofnecessity but for common advantage. For Aristotle, life itselfhas a natural sweetness, (Aristotle 1984a, 1278b18-30) , but this sweetness has no meaning without friends. Aristotle lists man’s need for friendship. Friends help guard one’s wealth, provide solace in times ofsuffering, and keep the young from error and the elderly in good health. For those in their prime, friendship stimulates them to noble action, the origin ofthe idea that two heads are better than one. Friends are also the best beneficiaries, for it most laudable to give gifts to one’s friends (Aristotle 1984a, 1115a5-15). Independently, friendship has many benefits; but when placed into the larger context ofthe city, those benefits are intensified. Before examining the meaning offriendship, Aristotle argues one must look at the values that lead to it. Once gaining the first moral value, magnanimity, a person can reach for the next, justice. Magnanimity, as defined by Aristotle, is the completion ofpersonal virtue. “It is moral virtue brought to self-awareness” when an individual knows his or her own ability to act in a noble manner (Sokoloswki 2002, 451).


Aristotle's Polity and the Role ofFriendship

53

Aristotle specifically personifies magnanimity in the Homeric hero Achilles (Cain 2008). The process of achieving each virtue can overlap, but justice cannot be completed without magnanimity (1123b11125a34). Although pride has its own problems, magnanimity is important to friendship because the magnanimous person remembers the good deeds he or she has done, but not the ones they have received. Benefactors are superior to the recipients, and the magnanimous person, striving always for superiority, will never cease to do good deeds unto others. The mark ofa magnanimous person is to ask ofnothing for him or herself and instead give help freely (Aristotle 1984a, 1124b15). A true friend will be proud ofhis or her friends and what he or she can do for them. He or she builds them up from himselfor herself, but unlike the true friend, the magnanimous person will never build his or her friends’ up so high that they are his or her equals. Having equals, as friends, would deprive the magnanimous person oftheir magnanimity. Magnanimity is the first step to an understanding ofjustice. Justice exceeds the other virtues because it applies to more than the individual’s impulses and desires; it is about an individual’s relationship with others. All moral virtues involve the exercise ofreason (Sokolowski 2002, 452). Justice is reason glorified to do what is best for everyone (451). Justice allows the individual to overcome personal interests and evaluate himselfor herselfas equal with others. Morality from justice does not come from nature alone; it must be practiced and perfected. Inclination, without habituation, leads only to whim (461). Aristotle’s definition ofjustice takes the popular definition and adds in the elements ofhabit and choice. A just person does the right thing because it has become a second nature to him or her. He or she is the sort ofperson who divides goods equally and does not reserve the best for him or herself. Equality in justice does not mean equal division between parties, but proportional division (Aristotle 1984a, 1134a17). Aristotle does not define what the proportion is, but rather leaves that up to the individual communities and their respective regimes, for the ratio ofgood to evil is dependent on perspective (1131b17-23). Justice itselfis proportional, proportion becomes intermediary, and injustice violates the proportion. The proportion itselfis not continuous, so it is impossible to name. Aristotle leaves justice with a limited, but specific definition, being that justice lies in the proportionate division ofgoods (1131b10-16). All the same, practical reason does not reach its culmination in justice alone. Reason finds its highest employment in friendship, which completes all other moral virtues (Sokolowski, 452). Friendships vary, but fall into one ofthree categories. Some friendships are pleasant, where one friend enjoys the company ofthe other. Other friendships are useful, and each friend provides something ofutility to the other. Although, the best kind offriendship is the perfect friendship, where the good ofone becomes the good ofthe other. Friendship is more than an emotional bond, it is “an exultation not only in sentiment but in intelligence as well” (459). Friendships built offutility are the lowest form because they are formed to some advantage. As soon as the advantage is gone, so is the friendship. Useful friendships are never permanent. Aristotle states that this type ofrelationship exists “chiefly between old people” because they only pursue the useful, and not the pleasant. Friendships based in pleasure are given a broader usage. They exist primarily for the young, who live under the constant guidance ofemotion. Young people pursue what is immediately before them,


54

Katelyn Abraham

but as they age, their preferences change. Their friendships change as quickly, ifnot more so, than their preferences. Even when the young fall in love, it is a fickle relationship that may fade away within a day (Aristotle 1984a, 1156a22-1156b6). With so many failed friendships, Aristotle requires the idea ofa perfect friendship, as a guide for all friendships. The fact that each bad relationship, no matter how bad, contains some element ofthe perfect friendship is an optimistic metaphor for bad regimes. Some regimes are meant to fall apart. Regimes built for one utilitarian purpose will not last past its purpose. Others may stand a chance based upon the merit oftheir pleasantness, but as stated above, pleasure can be a very fickle mistress. Only the regimes that are rooted in virtue and distributive justice will have endurance. Aristotle observed that friendship is often the glue that binds cities together. Lawmakers care more about harmony than they do about justice, for unanimity feels something like friendship, and unanimity is what they aim for politically. “When men are friends they have no need ofjustice,” for it is part of friendship, while the just person still wants friendship to complete them. The truest form ofjustice is that which one finds in friendship (Aristotle 1984a, 1155a22-7). The polity is an agreement to live together. Each citizen knows they have certain duties that the political system recognizes. In a similar fashion, perfect friendship is reciprocal and mutually acknowledged. “Only a just person can be a true friend; without justice, ‘friendship’ becomes blind partiality” (Sokolowski, 461). “Friendship is not an alternative to justice but a completion ofit.” This is displayed more clearly through an example ofvice. Vice prevents perfect friendship because an individual cannot step away from him or herself. Useful and pleasant friendships may be attainable, but the unjust person cannot enlarge their soul to include the good ofothers. A person cannot be loved in return, because they cannot love anyone other than themselves (461). This is why tyranny is devastating both personally and politically, because “in tyranny there is little or no friendship” (Aristotle 1984a, 1161a32). How does friendship apply to the polity as a whole? The fact that Aristotle chooses to begin his philosophy with the idea ofpartnership–which by definition means that each individual participates, at least to one’s own ability says that it is one ofthe most important foundations for the polity. Cities are partnerships ofvillages, which are partnerships ofhouseholds, which are partnerships ofindividuals. The polity itselfis a partnership oftwo other forms ofregimes – the oligarchy and democracy. Ifproperly blended, citizens can call it either an oligarchy or a democracy or both (1294b12-16). That is why the polity has no real name, only the general Greek term for a political partnership. The defining characteristic ofan aristocracy, according to Aristotle, is virtue and for democracy, freedom. The third characteristic that defines regimes is wealth. Ifa polity should incorporate all three ofthese characteristics, Aristotle would classify it as a more aristocratic regime (1294b9-25). The polity therefore is more based upon virtue than any other characteristic. Iffriendship, according to the Nicomachean Ethics, is the most excellent ofall virtues, then the most defining characteristic ofthe polity is the virtue offriendship. Friendship can play a vital part in the governing structure ofthe polity. Aristotle describes the ideal political system for the most people as a system where the ruling class fluctuates in power, with each


Aristotle's Polity and the Role ofFriendship

55

person serving in political office for a period (Aristotle 1984b, 1294a35-1294b13). The idea is that each will do what is not only good for him or her while that person is in office, but also what is good for him or her when he or she is out ofpower. The good each ruler implements will be good for everyone out of power, because power is only temporary and no ruler would want to punish him or herself. The polity, by nature, equalizes the oligarchs and the masses so that both have a hand in government. Aristotle’s polity does not have the problem ofinvoluntary rulers such as Plato’s Republic. The philosopher king would rather philosophize than rule the political world ofhis inferiors (Plato 1968, 517d). Within Aristotle’s polity, each person wants to rule and wants to do justice–what is not only good for the one ruling, but for all citizens. Friendship, because ofthe underlying quality ofjustice, makes persons politically selfish and selfless at the same time. In either case, the result is the same, policies that attempt to make everyone’s life better. Persons address their fellows and acquaintances with the community as friends. The extent oftheir association is the extent oftheir friendship (Aristotle 1984a, 1159b27-28). In a political system where political rule shifts from person to person, the association between individuals should strengthen dramatically. Aristotle never imagined large cities, only self-sufficient ones. In the self-sufficient city, everyone would know everyone. Ideally, every citizen within the polity will have a perfect friendship with every other citizen. Each would want the best for every other, and in doing such; grant him or her the best. The possibility ofthis actually occurring is slim. Aristotle addresses this throughout books eight and nine in the Nicomachean Ethics, stating early that perfect friendships are naturally infrequent because perfect people, full ofboth magnanimity and justice, are rare (1156b25-32). Later he states that persons always wish what is the greatest good ofthem, even in wishing his or her friends good (1159a11-13). Because perfect friendship is unattainable for most citizens, and it is the measure for the quality ofall friendships, it is a cornerstone ofthe polity because citizens strive for friendship in any form, beginning with utility, moving to pleasure, and growing toward perfection. Friendship also plays an important role in decreasing, ifnot eliminating faction within the polity. To begin a relationship, individuals must find something in common. In a perfect friendship, the similarity is moral excellence, and ifthis were the dominant friendship, there would be no factional conflict at all. As this is not the case, friendship must provide another answer. Friendship based upon pleasure can provide enough commonality for the relationship to develop further based on familiarity. The greatest threat of imperfect friendships is that they can fall apart very quickly. Once the element offamiliarity is introduced, the friendship moves closer to a perfect friendship and towards greater longevity and stability (115b33-16). The greater the similarity ofparties creates fewer factions within the city. The easiest way to find political similarities is through friendship. Throughout Aristotle’s political writings, friendship is not only a necessary virtue, but also the most excellent one. Friendship is the epitome ofpride and justice; pride so that each wants to give more than take, and justice so that all may be equal. Friendship creates better citizens because friends see each other on a more level playing field. Ideally, friends see each other as complete equals, which would lead to the best citizens. Friends also work toward the good ofeach other; citizens ofthis caliber would create a


56

Katelyn Abraham

progressive polity. Without the virtue offriendship, the polity is subject to faction and demise. Friendship is an essential part ofthe proper functioning ofAristotle’s polity. Works Cited

Aristotle. 1984a. Nicomachean Ethics. In The Complete Works ofAristotle (vol. 2), edited by Jonathan Barnes. Translated by W.D. Ross. Princeton: Princeton University Press. Aristotle. 1984b. Politics. Translated by Carnes Lord. Chicago: University ofChicago Press. Cain, Patrick. 2008. “The Politics ofFamily in Aristotle’s Nicomachean Ethics.” Paper presented at the annual meeting ofthe Southern Political Science Association, New Orleans, LA. Plato. 1968. Republic. Translated by Allan Bloom. New York: Basic Books. Sokolowski, Robert. 2002. “Phenomenology ofFriendship.” The Review ofMetaphysics 55(3): 451-470.


Hobbes and Psychological Egoism Storm Patterson University ofEdinburgh

In traditional discourse, commentators on Hobbes’ political and moral philosophy have categorized his work as having roots in psychological egoism. Psychological egoism asserts, “All human action when properly understood can be seen to be motivated by selfish-desires” (Feinberg 2008 520). It is crucial to point out that “when understood properly,” signifies any appearance of concern for another’s happiness (a psychological egoist would claim) is merely a means to one’s own happiness. Thus, psychological egoism rules out the existence ofaltruistic and benevolent actions or desires. Psychological egoism asserts that humans are not capable ofany other motive than essentially one grounded by their own self-interest. (Feinberg 521). Hobbes’ account of“conflict in the state ofnature” may initially seem to presuppose psychological egoism. Hobbes intended to develop an understanding ofhuman nature that holds an inherent prescription oflaws ofnature, the cornerstone ofwhich is our desire for self-preservation. For Hobbes, the state ofnature is that state which is without government. In De Cive, Hobbes presents the state of nature as a natural and primitive state; “consider men as ifbut even now sprung out ofthe earth, and suddenly (like mushrooms) come to full maturity, without all kinds ofengagement to each other” (quoted in Gert 1967, 515). For Hobbes, even moral rules are inventions ofsociety; they are all part ofan acquired education, thus not present in the state ofnature. The notion that a sense ofmorality must be teachable is alluded to in doctrines ofpsychological egoism. Psychological egoism would assert, “Children are made to acquire the civilising virtues only by the method ofenticing rewards and painful punishments” (Feinberg 521). This assumes children, as an exemplar ofhumanity’s natural state, are essentially unsociable creatures that need a coercive education to adopt a moral psyche. Hobbes does command that children are good exemplars of the natural state ofman or that an education makes man fit for society. However it does not follow that he is embracing the foregoing egoist claim. Hobbes does not claim humans are naturally unsociable beings; “men (even nature compelling) desire to come together” (Gert, 515). The basics ofhumanity’s state ofnature may not lead to psychological egoism, but it is Hobbes’ pessimistic assumptions ofunavoidable conflict in the state ofnature, that often leads to discussion about themes ofegoism. In the state ofnature each person holds a right to self-preservation, and without a consensus ofmorality, there is an unlimited possibility ofjudgement that could be deemed crucial for selfpreservation (Lloyd and Sreedhar 2002). This consequentially leads to a great fear ofattack, and even the least suspecting will resolve this fear by a pre-emptive attack upon others, leading humanity in the state ofnature into a state ofwar. In the state ofnature, without coercive power, laws, or government, life for man was “solitary, poor, nasty brutish and short” (Hobbes, 54). In Leviathan, Hobbes speaks of


58

Storm Patterson

competition, in which men’s “end, which is principally their own conservation, and sometimes their delectation only” (McNeily 1966, 205). The importance here lies in the implication of‘principally’ and ‘sometimes’. The use ofthese terms do not affirm the psychological egoism, which would rather assert an emphasis on ‘always’. Hobbes also speaks about certain instances when the desire ofself-preservation is not foremost in humans, such as when “most men would rather loose their lives … than suffer slander” (Gert 506). It becomes a clearer step away from psychological egoism when we take Hobbes’ view ofself-interest to be most importantly self-preservation. Ifpreservation is the critical point ofinterest, then the foregoing quote asserts that there are times when persons would choose another option than self-preservation. In psychological egoism, desire centers on the self-interest. In part, Hobbes could agree with this point; he does claim, “ofthe voluntary acts ofevery man, the object is some good to himself” (Gert 507). However, ifwe look further into his claims about voluntary acts we find that “a voluntary act is that, which proceedeth from the will and no other. Will therefore is the last appetite in deliberating” (Gert 507). Thus it is by mere definition ofa voluntary act that actions necessarily derive from one’s own desires. To affirm that this argument follows on to a clear assumption ofpsychological egoism, then Hobbes would also have to deny the possibility ofbenevolence. However, Hobbes does not assert this. In fact, Hobbes does affirm that there is such a thing as benevolence, although it is limited, and not part ofan important role in his reasoning for compliance with the law (Gert 509). Thus, although benevolence is not of importance for Hobbes in his political scope, he does not deny it, and thus does not concur with the claims ofthe psychological egoist. Hobbes does define some terms that would be important to the assessment ofhis work in terms of psychological egoism--for instance, pity, a feeling commonly assumed to be a sense ofsympathy for another’s misfortune. Hobbes alludes to pity being derived from a worry that the same misfortune which happened to another may happen to oneself(Gert 509). This may seem to hold ground in an essentially egoist assertion, although through his works, his definitions ofsuch terms do not always remain consistent. In Leviathan, Hobbes defines indignation as “anger or hurt done to another, when we conceive the same to be done by injury” (Gert 510); yet his previous definitions given in earlier works have a stronger hint ofegoism. Even the strongest defenders ofHobbes against egoism do not ascribe Hobbes as never having made egoist claims, although it is claimed that his points that allude to egoism often are not conclusive of, or needed in, his theories overall (McNeilly, 206). In conclusion, although Hobbes has a pessimistic conception ofhuman nature, which sometimes alludes to claims that reek faintly of psychological egoism, he has put forward many more opposing points that are contrary to such a doctrine. Thus, it would be most notable to say, as a whole, the concept ofconflict in the state ofnature, does not in fact strongly presuppose psychological egoism.


59

Hobbes and Psycholgical Egoism Works Cited

Feinberg, Joel. 2007. “Psychological Egoism.” In Reason and Responsibility, 13th Ed., edited by Joel Feinberg and Russ Shafer-Landau, 520-31. Belmont, CA: Thomson Wadsworth. Gert, Bernard. 1967. “Hobbes and Psychological Egoism.” Journal ofthe History ofIdeas 28(4): 503-520. Hobbes, Thomas. Leviathan. Accessed on January 3, 2009. http://www.earlymoderntexts.com/f_hobbes.html. Lloyd, Sharon A. and Susanne Sreedhar. 2002. “Hobbes’s Moral and Political Philosophy.” In The Stanford Encyclopedia ofPhilosophy. Stanford University. Accessed on April 3, 2009. http://plato.stanford.edu/entries/hobbes-moral. McNeilly, F. S. 1966. “Egoism in Hobbes.” Philosophical Quarterly 16(64): 193-206.


The Shared Good We Seek: The Communitarian Perspective ofIntergenerational Justice Alyssa Bauer McGill University The surge ofpopular attention given to the global environmental crisis and the increased attempts of current policy-makers to develop long-term environmental policies suggests that people today are convinced we have obligations to future generations. Principles ofdistributive justice extend not only across society in the present, but are also utilized to explain our obligations to future generations. However, rights-based theories ofgenerational obligation create a wealth ofproblems: “How do we take such rights into consideration? Do these rights impose duties on us even ifthese duties conflict with obligations we hold to those already living? What do we do when the rights ofnot-yetliving future persons contradict those ofa contemporary person? How do we adjudicate between these rights?” (De-Shalit 1992, 105). Thus, the current language ofrights-based theories struggles to address the most pertinent questions ofintergenerational justice, namely why we have obligations to future generations. This paper will address the communitarian perspective ofintergenerational justice. Modern-day communitarianism largely grew out ofa response to John Rawls’ A Theory ofJustice (1971), which produced the philosophical groundwork for contemporary liberalism (Bell 2009). The uniting factor between a diverse tradition ofcommunitarian scholars is their critical view that liberalism, “does not sufficiently take into account the importance ofcommunity for personal identity, moral and political thinking, and judgments about our well-being in the contemporary world” (Bell and De-Shalit 2003, 4) Applied to an intergenerational context, a transgenerational community is one that applies to past, present and future members ofthat community. The transgenerational community is the basis ofpeople’s moral obligations to produce a desirable state ofaffairs and a livable world for future generations. Members of transgenerational communities feel a special connection and solidarity with future members based on a shared good ofthe community, which in turn spawns shared moral obligation.

I. The Communitarian Community Communitarianism offers two central understandings relevant to transgenerational communities: 1) the “self” is defined by membership to communities; and 2) communities promote a shared good. Communitarian scholars argue that the selfis inextricably linked to membership in communities. While liberalism is “founded on a highly individualistic view ofthe person” that ignores the social relations in which it is embedded, communitarianism identifies the community as the groundwork for the self’s


The Shared Good We Seek

61

identity (Bell and De-Shalit 1994, 14). As MacIntrye writes, But it is not just that different individuals live in different circumstances as bearers ofa particular social identity. I am someone’s son or daughter, someone else’s cousin or uncle; I am a citizen ofthis or that city, a member ofthis or that guild or profession; I belong to this clan, this tribe, this nation (1984, 205).

Thus, the selfis defined by the social relationships it forms with other members and the roles one performs within these communities. In addition, the selfis defined by the good the community promotes. Charles Taylor argues “[s]elfhood and the good, or in another way selfhood and morality, turn out to be inextricably intertwined themes” ( 1989, 3). Due to the distinct moral rearing as members of communities, individuals create a sense ofmorality—a distinction between what is good and what is bad, valuable and invaluable—tied to the community. This community-oriented theory ofmoral intuition becomes extremely important in later discussions ofthe transgenerational community and obligations that arise from our conceptions ofmorality derived from our membership to communities. However, communitarians have a variety ofbeliefs about what constitutes a community. Two dominant theories are those ofMichael Sandel, and Charles Taylor. Sandel and Taylor’s definitions ofa community are particularly relevant to the idea ofa transgenerational community. A community is a support system to aid its members in the search ofthe good. For Sandel, a community must be ordered so that the personal dispositions ofits members do not dictate its moral direction ( 1984, 167). Members must associate with one another beyond the primal need ofassociation. In other words, there has to be a higher good at which the community and the lives ofits individuals are aimed. For a society to be a community in this strong sense, community must be constitutive ofthe shared selfunderstandings ofthe participants and embodied in their institutional arrangements, not simply an attribute ofcertain ofthe participants’ plans oflife. (Sandel 1984, 167).

This distinction is important, because it identifies the community as being something stronger than just an aggregate ofindividuals. Members ofthe community are collectively working towards a shared conception ofthe good. Taylor considers a more Hegelian conception ofcommunity. Taylor refers to the German word Sittlichkeit, which means that morality only reaches its completion and realization within a community (1984, 178). In other words, Sittlichkeit “refers to the moral obligations I have to an ongoing community ofwhich I am part” (Taylor 1984, 186). There is a transgenerational aspect to any term that identifies the community as a continuous entity, rather than one frozen in time. Although Taylor does not address or further the claim ofthe transgenerational status ofa community, this idea is the basis for contemporary communitarian theories ofintergenerational justice. While none ofthese theories address the transgenerational component ofa community directly, each one participates in the communitarian discourse ofwhat the ideal community is.

II. The Transgenerational Community Whereas the core ofcommunitarianism defines the interrelated nature ofthe individual and the self, Israeli communitarian Avner de-Shalit provides a definition ofthe community in response to questions


62

Alyssa Bauer

ofintergenerational justice. “Why do I and why should I behave as part ofa transgenerational community? Moreover, how is such a membership expressed? Ifthere is no everyday interaction, how is a transgenerational community possible?” (1995, 21). De-Shalit first addresses the concerns ofa transgenerational community and then identifies three inherent characteristics ofa community: cultural interaction, moral similarity, and reflection—all three ofwhich become the bedrock for a theory asserting that a community has obligations to future generations. First, every community has its own history ofcultural interaction. “People in a community undergo the same political, social, and cultural experiences; they reflect on and interpret the significance ofthese events through discussion, literature, the mass media, academic research, and so on” (De-Shalit 1995, 23). Through this cultural interaction, members ofa community participate in discussions ofshared values and the search for the common good for the community. Since there is no definite answer to the question ofthe good, cultural interaction can continue over generations: “just as we have cultural interactions with past generations, so—we may assume—will future generations have such interactions with us” (De-Shalit 1995, 43). Cultural interaction is integral to the transgenerational community, because it establishes the need for discussion ofmoral similarity between generations. Norman S. Care disregards this notion ofcultural interaction in his article “Future Generations, Public Policy and the Motivation Problem.” Care argues that the lack ofreciprocation in the transgenerational community is problematic, because there must be an “exchange ofideas and conceptions ofpurposes that must be available to persons before they can be considered to stand as joint participants in a common project” (1982, 208). However, the communitarian view oftransgenerational justice does not rely on forms ofmutual dependency. Rather, as members ofcommunity, our debate ofthe good will be continued with future generations, as long as there are members ofour transgenerational community. Reciprocity is continued from past generations onto future generations with the active and rational process ofreflection, which continually reassesses the values shared by the community. Second, every community has a certain level ofmoral similarity, which is a prerequisite for transgenerational communities. Moral similarity is the ongoing, dynamic discussion ofcommon values held within the community. Moral similarity does not, however, require face-to-face interaction, which allows for a transgenerational context. The transgenerational community does not have to achieve perfect moral uniformity in the sense that every member’s set ofvalues is the same. Thus, moral similarity is not a form ofcultural homogeneity or unanimous agreement. In addition, “there must be a will to reach agreement, not in the sense ofattaining minimal consensus but in the sense ofan openness to persuasion” (De-Shalit 1995, 59-60). This allows for openness to opinions within the community. Lastly, de-Shalit argues that reflection is an important aspect ofthe community in that it evaluates the community’s shared good and the individual’s active participation in moral similarity. As MacIntyre stated, the fact that the selfhas to find its moral identity in and through its membership in communities such as those ofthe family, the neighborhood, the city and the tribe does not entail that the selfhas to accept the moral limitations ofthe particularity ofthose forms ofcommunity (1984, 143).

Since the selfis related to the community by the shared good it promotes, no rational individual would


The Shared Good We Seek

63

define his or herselfby conceptions that could be potentially wrong or misleading (De-Shalit 1995, 30). For example, most North American teenagers and young adults undergo this process ofreflection upon reaching their “coming ofage.” Usually, rebellion against parents or society ensues to establish autonomy from instituted norms. Some teenagers return to the values in which they were brought up, continuing in the same transgenerational community as their parents. Other teenagers will find moral similarities with other communities, thus abandoning their parents’ community for another that may be more in sync with their own moral system. Reflection is thus a future-oriented project aimed at the development ofmoral similarity.

III. Why do moral obligations to future generations arise? De-Shalit’s explanation ofthe transgenerational community does not address the question ofhow and where obligations to future generations arise. Understanding our obligations leads to the most practical part ofintergenerational justice. The philosophy behind intergenerational justice explains what policies we should adopt towards future generations and why we should care about the future. There is a general understanding that we cannot leave tremendous economic or environmental burdens on future generations. In addition, there is a general consensus that we must preserve what we consider to be good for the future members ofour family, community, nation, or world. But where do these obligations come from? Why do we feel a duty to future generations? There is clearly a type ofsolidarity we feel to future members ofour community from which obligations are derived. These obligations, should not be regarded as exclusively determined by our individual allegiance to a contract ofjustice. Primarily, intergenerational duties arise from our commitment to the communal practices in which we are involved, and our commitment to the continuity ofthose practices (Postma 2006, 54).

There are two ways ofconceptualizing obligations to the transgenerational community. First, there is what I call the Self-Interested Principle ofObligation, which follows from Janna Thompson’s conception of “life-transcending interests.” Life-transcending interests explain our dependence on future members of our community to continue our projects, activities or interests. Thus, we are obligated to create “a desirable state ofaffairs for the community,” one in which they are able to act in our interests (Golding 1972, 87). Second, is what I call the Shared Good We Seek Principle ofObligation: we seek to promote the good for future generations and thus have obligations “to promote conditions ofgood living for future generations” (87). While the Self-Interested Principle ofObligation may sound more convincing to the liberal, this principle relies too heavily on liberal notions ofself-determination and self-interest, which depart from communitarian perspectives ofselfhood and the community.

IV. The Self-Interested Principle ofObligation To begin, Thompson’s idea oflife-transcending interests are grounded on “the conception ofcitizens as persons who have future directed interests that include not only an interest in their future well-being, but also interests that transcend their lifetime” ( 2009, 12). Thus, we actually depend on future people to fulfill our commitments and to ensure that our interests, activities and projects maturate and succeed


64

Alyssa Bauer

(Thompson 2009, 45). According to Thompson, life-transcending interests also provide an essential for a meaningful human life. Thompson claims that forwarding an ideal towards the future “makes individuals part ofsomething larger than their own life not only because it encourages them to be become concerned with the good ofothers but also because it motivates them to work or hope for a result that will probably not be achieved in their own lifetimes, and it connects them with those who have worked to achieve the ideal in past generations” (2009, 36). However, I find this claim inconsistent with her previous arguments for life-transcending interests. As a prerequisite for a meaningful life, life-transcending interests would have to be concerned with a projected moral good that dictates the structure and meaning ofone’s life. Thompson’s description oflifetranscending interests is far more self-interested than she might like to claim. Life-transcending interests are personal, property-driven interests, which make the present generation dependent on future generations to maintain and sometimes complete our projects. This means we owe obligations to future generations, because oftheir responsibility to our interests, rather than caring for future members ofour community in and ofthemselves. In the Self-Interested Principle ofObligation, the individual is lexicographically important before the transgenerational community. To follow the communitarian perspective, however, the transgenerational community must be the first priority in the reasoning behind our moral obligations to future members of our community. Thus, the egoistic nature ofthe Self-Interested Principle ofObligation is contrary to the communitarian view oftransgenerational justice.

V. The Shared Good We Seek Principle ofObligation The Shared Good We Seek Principle ofObligation explains our obligations to future members ofour community. As members oftransgenerational communities, “we share the cooperative aim ofpromoting something we have reason to regard as good” (Thompson 2009, 31). This principle ofobligation focuses on shared interests, rather than self-interests. Moral similarity provides a shared conception ofvalues, thus creating a stronger connection to future members. Our obligations and “our desire to secure a livable world for future generations follows naturally from the fulfillment we find in our lives, here and now” (Postma 2006, 60). The continual transference ofresources and institutions allows us to continue the substantive debate about the good for our community. For instance, the threat ofenvironmental depletion “requires us to determine which goods constitute our community life and should be preserved for the heirs ofour community” (Postma 2006, 60). The Shared Good We Seek Principle ofObligation thus provides an explanation as to why we would care for future generations in and ofthemselves. This principle ofobligation might seem rather idealistic concerning how our obligations derive from our shared values. An individual who prescribes to the same set ofvalues as a future member might not qualify as a sufficient reason for substantial sentimental commitment. Obligations to future generations cannot be based on sentimental conceptions offraternity or the subjective notion oflove. De-Shalit writes “Love is a superior relationship with a particular person, or persons, for whom one has special, exceptional feelings, above and beyond one’s feelings for everyone else” (1995, 32). Reasonably so, relationships with future generations cannot be based on sentimental feelings one has towards future people. However, the Shared Good We Seek Principle ofObligation is not motivated by love. There is a


The Shared Good We Seek

65

solidarity we feel, as members oftransgenerational communities, to future members. This solidarity is shaped by moral similarity and a shared conception ofvalues, not a subjective emotion. As rational members oftransgenerational communities, we logically engage in acts ofmoral similarity and reflection. Thus, our obligations to future generations are not composed oflove, rather a form ofunity that derives from shared aims. The Shared Good We Seek Principle ofObligation is grounded in a debate ofmorality, rather than sentiment. This principle avoids the problems raised with self-interested motivations that Thompson’s theory oflife-transcending interests faces. Thus, the Shared Good We Seek Principle ofObligation explains why we, as members oftransgenerational communities, have obligations to future generations.

VI. Sustainable Development and Policy Prescription in Relation to the Transgenerational Community “This is a matter ofhumanity rather than ofjustice. The difference between the two is that justice is concerned with principles ofownership or the control ofresources, while humanity is concerned with people’s well-being” (De-Shalit 1995, 63).

Environmentalists argue that the discourse ofenvironmental issues should be grounded in a context of ethics, rather than justice. Environmental ethics considers the well-being offuture generations and thus in order to protect the environment, politics should be reunited with ethics; or as they often claim, politics should be less about power and more about morality ofour public domain and our obligations to the natural world (De-Shalit 2000, 114).

To frame the discussion ofthe environmental crisis in terms ofethics and morality is to debate over policy prescription in communitarian terms. Since communitarianism accounts for our moral obligations to future generations, our discourse ofenvironmental concern should be grounded in this tradition. The threat ofenvironmental depletion affects the lives offuture, as well as, present individuals. Future generations will be affected by the tremendous burden past and present people have placed on them in terms ofthe financial and environmental consequences ofour conspicuous consumption. Present people are affected by the threat ofenvironment depletion because ofour increasing obligations to future generations to produce a livable world. We chose which environmental resources to sustain based on our values derived from our community. There are two types ofenvironmental resources that we consider good. First, there are resources required to maintain a livable world. This category would include clean air and water, a strong ozone layer and environments capable ofproducing adequate food. In order to create a livable world for future generations, the environment must produce and maintain the physical conditions ofa livable world. The second category ofresources is environmental goods, or what Thompson calls cultural heritage. Environmental goods are important to and valued by different communities, but are not necessary to maintain or sustain a livable world for future generations (Thompson 2000, 244). For example, the Vermont community wants to preserve the Green Mountains for the enjoyment offuture generations. The ski hills and hiking trails in the mountain range are important aspects to the Vermont community.


66

Alyssa Bauer

Thus, the community might feel a moral obligation to future members to maintain and protect the mountains. Although they are not necessary for a future livable world, the Green Mountains are integral to the community’s identity. Environmental goods can thus be seen as essential to continuing the moral similarity ofthe transgenerational community. The preservation ofenvironmental goods is more than preserving mere aesthetics or antique though; it is a moral obligation or at least it is morally good to do for future generations (Thompson 2000, 246). In addition, the preservation ofenvironmental goods goes beyond simply following one’s transgenerational interests, as suggested by the Self-Interested Principle ofObligation. Instead, the preservation of environmental goods is a moral obligation founded on the Shared Good We Seek Principle ofObligation. As shared goods ofa transgenerational community, environmental goods are important to the continuance ofmoral similarity within the community. Under the communitarian view, people outside ofour community seem to be disregarded as thus outside the moral framework ofour community. However, Michael Walzer (1984) provides an interesting solution to this problem, which also corresponds with the distinction I have made between necessary environmental resources and environmental goods. Walzer distinguishes between the general and particular provision ofwelfare resources. Although his theory applies to temporal modes ofwelfare distribution, the general/particular distinction can be applied to issues ofenvironmental resource protection. General provision is reconcilable with necessary environmental resources, because it establishes general moral obligations to all future generations. On the other hand, the particular provision corresponds with the protection ofa community’s environmental goods. The particular provision is defined by a community’s shared environmental goods and provides a method in which to maintain these goods. An example ofthe general/particular distinction ofenvironmental resources is the provision of water. Water is a bare requirement for human life. Thus, stopping pollution ofclean water resources and enhancing technology to produce clean water are both forms ofgeneral provision, because they provide future generations with clean, drinking water. Cleaning up a town’s lakes is a form ofparticular provision, however, since those affected are future members ofthe town’s community. Both types of provision are important for a collective response to the environmental crisis. Environmental sustainability is a primary concern for intergenerational justice today. The communitarian perspective ofintergenerational justice provides the best framework in which to engage in the ethical consideration offuture generations. Furthermore, the Shared Good We Seek Principle ofObligation satisfies the need for environmental ethical discourse, because it requires that our obligations to future generations be projected from a cooperative aim ofpromoting the good ofour transgenerational communities. Both types ofenvironmental resources—those necessary to maintain a livable world and those considered to be goods important to a community—are accounted for under the communitarian perspective, according to Walzer’s theory ofgeneral and particular provisions.


67

The Shared Good We Seek Works Cited

Bell, Daniel A. 2006. Beyond Liberal Democracy: Political Thinking for an East Asian Context. Princeton: Princeton University Press. Bell, Daniel A. and Avner de-Shalit, eds. 2003. Forms ofJustice: Critical Perspectives on Daivd Miller’s Political Philosophy. Lanham, MD: Rowman & Littlefield Publishers, Inc. de-Shalit, Avner. 1995. Why Posterity Matters. London: Routledge. ———. 2000. The Environment: Between Theory and Practice. Oxford: Oxford University Press. McIntyre, Alisdair. 1984. After Virtue: A Study in Moral Theory, 2nd. ed. Notre Dame, IN: University of Notre Dame Press. Postma, Dirk Willem. 2006. Why Care for Nature? Dordrecht, The Netherlands: Springer. Rawls, John. 1971. A Theory ofJustice. Cambridge, MA: Harvard University Press. Sandel, Michael, ed. 1984. Liberalism and its Critics. New York: New York University Press. Taylor, Charles. 1984. “Foucault on Freedom and Truth.” Political Theory 12 (2): 152-183. ———. 1989. Sources ofthe Self: the Making ofModern Identity. Cambridge, MA: Harvard University Press. Thompson, Janna. 2009. Intergenerational Justice: Rights and Responsibilities in an Intergenerational Polity. London: Routledge. ———. 2000. “Environmentalism as Cultural Heritage.” Environmental Ethics 22: 241-58. Walzer, Michael. 1984. Spheres ofJustice: A Defense ofPluralism and Equality. New York: Basic Books.


The Dictatorial Power ofthe Masses: Reconciling Deliberative Democracy with the Sovereign Nicholas Sideras University ofSaint Thomas

Since the time ofAthens, deliberation has been seen as a pivotal component ofdemocracy (Ober 2008). The Athenians said, “Instead oflooking on discussion as a stumbling block in the way ofaction, we think it an indispensable preliminary to any wise action at all” (Thucydides 1998, II.40). Deliberation distills from abstract discourse into an intelligible policy so that political action can be taken (Ober 2008, 10-12). A problem exists in the deliberative understanding ofdemocracy. Contemporary theories ofdeliberation tend to be ofthe liberal idealist variety such as, the work ofJohn Rawls (2005), Amy Gutmann and Dennis Thompson (2004) and David Estlund (2008). Liberal idealism has advanced our understanding ofhow the spread ofinformation, justification ofdecisions, and legitimate state action are essential to democracy. But liberal idealism undervalues how the dynamic nature ofdeliberation causes uncertainty. Deliberation, because it is a process, fails to consider the end ofits own actions. Realist political theorists believe that the American political system has shown that competing ideas in a deliberative society do not offer a pragmatic or intelligible solution to political issues. Two leading realist political theorists are Carl Schmitt and Niccolò Machiavelli, who attempt to reconcile the desire for deliberation and the actual result that derives from deliberation. Both Schmitt and Machiavelli’s realism claims to be a view ofpolitics that is both intelligible and functional, and a close reading ofthese two thinkers in the context ofmodern deliberative democracy presents a credible challenge to the contemporary modernist understanding. Deliberation seeks to discover competing ideals and thoughts to facilitate a form ofdiscourse that develops collective action. According to contemporary theorists Amy Gutmann and Dennis Thompson, “The general aim ofdeliberative democracy is to provide the most justifiable conception for dealing with moral disagreement in politics” (Gutmann and Thompson 2004, 10) The problem that arises is groups of competing interpretations do not tend to form a consensus or a resolution to issues, but instead become more divisive. According to Cass Sunstein, People influence one another, a bias….[can] creep into the group’s thinking, leading it astray…in some circumstances deliberation actually produces a serious distortion. (2009, 142)

When a group enters into a deliberation, an awareness ofcompeting interpretations occurs. Within the deliberation, there exists people who agree and those who disagree, and when each person opens themselves up to the group’s dynamic and expresses their position on an issue, people begin to realize who their friends and enemies are in the deliberation. Each new perspective opens up differences that collide and alter the discourse. Factions begin to form around each group ofthose who ascribe to the


The Dictatorial Power ofthe Masses

69

same ideological framework for the particular discussion. Slowly a beliefcreeps into the group about the others ofthe discussion, the ones who disagree are no longer friends, but enemies to your position. This beliefmanifests itselfinto a truth, where, [A] painful consciousness ofbeing ‘on the run’ from forces ofevil which have taken the offensive and established their ascendancy. The passive expression ofthis consciousness ofcontinual and progressive moral defeat is a sense ofdrift. The routed soul is prostrated by a perception ofits failure to control its environment; it comes to believe that the Universe, including the soul itself, is at the mercy ofa power that is irrational as it is invincible. (De Grazia 1948, xiii)

The fear ofa dismantling ofa group’s self-image forms a collective identity to protect individuals’ ideological beliefs. From this perspective, the intense fear ofbeing eliminated creates a political realm. Carl Schmitt, a legal scholar in the Weimar Republic and Post-World War I Nazi Germany, distilled deliberation from the discursive thought into a realist understanding ofpolitics. Ultimately, deliberation is a method to form a friend-enemy dichotomy, and hence each friend-enemy dichotomy builds a collective identity formulating around factions. Hannah Arendt concluded that politics is merely relationships, The assumption that there is something political in man that belongs to his essence. This simply is not so; man is apolitical. Politics arises between men, and so quite outside ofman. There is therefore no real political substance. Politics arises in what lies between man and is established as relationship. (2005, 95)

A friend-enemy distinction is not enough to form a political system. Schmitt explains: The friend, enemy, and combat concepts receive their real meaning precisely because they refer to the real possibility ofphysical killing. War follows from enmity. War is the existential negation ofthe enmity. It is the most extreme consequence ofenmity. (Schmitt 2007, 33)

The political realm, seen as a war, has the possibility ofbecoming extreme and destructive, eliminating the mutual respect built and facilitating deliberation. The authority cannot reside in everyone to build distinctions offriend-enemy due to the implications on deliberation. According to Schmitt: To the state as an essential political entity belongs the jus belli, i.e., the real possibility ofdeciding in a concrete situation upon the enemy and the ability to fight him with the power emanating from the entity. (2007, 45)

Deliberation functions within the control ofthe sovereign’s authority. Under the power ofthe sovereign, deliberation becomes a sufficient condition for politics. The bonds ofthe citizenry are malleable to some extent, but without a sovereign to delineate friends and enemies, any distinction that escalates to war would easily destroy the bonds. When considering the possibility citizens may completely dismantle the citizenry in conflict, the consolidating power into a single entity. A sovereign under these parameters is not possible within any legal context.


70

Nicholas Sideras

Schmitt’s sovereign is not a pragmatic idea, but his understanding ofdeliberation as realist is compelling. Schmitt’s interpretation ofa sovereign is one in which anyone with the power to assemble enough force to control a group has the authority ofa sovereign. Without a consolidation in the right to claim a friendenemy distinction, war would be constant and destroy any chance ofa political community. In order to reconcile this issue, a sovereign must have the authority offered by the citizenry to protect the political realm as a whole. Although Schmitt’s sovereign is unworkable, Niccolò Machiavelli offers a feasible understanding ofa sovereign. Machiavelli formulated realist thought through the early fourteenth century and into the fifteen century. Machiavelli understood the world, not as it always appeared, but as one in which “[a] ruler, in particular, needs to know how to be both an animal and a man” (Machiavelli 1994, 54). Rulers must be able to abide by their words, and yet still be able to “make good use ofbeastly qualities…[a ruler] must be a fox when it comes to suspecting a trap, and a lion when it comes to making the wolves turn tail” (54). A Machiavellian framework for a sovereign is one that encapsulates deception and truth. Machiavelli asserts in The Prince that power resting in one leader limits the amount ofindiscriminate cruelty the sovereign could perpetrate (1994, 58). The sovereign still must abide by his or her reputation as a leader. Ifthe reputation ofa sovereign is a ruthless individual, the authority ofthat leader diminishes. According to Machiavelli, the means ofpower offered to the sovereign denies incorrect control, and builds a framework where authority rests within the sovereign. The sovereign has a means to garner power because citizens’ provide their consent to be governed in such a way. Ifthe masses disagree in regards to a specific distinction, the sovereign has limited control in accessing violence. Consolidating power in a sovereign allows for stability in a political realm. Schmitt’s version offriendenemies does not look similar Machiavelli’s understanding ofRome’s need for internal dissention. [T]he populous were strong and grew in numbers, and so had innumerable opportunities to riot. But ifthe Roman political system had been more orderly, it would have had the unfortunate consequence that Rome would have been weaker and she would no longer have been able to achieve that greatness she did in fact achieve. (Machiavelli 1994, 99)

Idealist states are static. After building a stable procedure within the governance, the system is complete. As Machiavelli expressed, this is incorrect. The system is not complete since it is fighting that keeps building a strong system. Rome is the model ofgovernance not because ofAristotle or liberals; Rome took the natural animosity between classes and others and put it to productive ends instead ofdestructive ends. Idealism by trying to eliminate animosity. shuts down true development and growth ofa government. Machiavelli’s study ofRome continues to be applicable to modern states. “Machiavelli’s political writing explicitly say: that one can benefit from accounts ofancient times because human nature does not change” (Flaumenhaft 1981, 2). People continue to fight over resources, and they always will. Machiavelli wants to distill from humanity the best and worst parts and impel them into a positive direction. The State needs good laws to discipline them because everyone thinks they have the answer, that they should have more power than they deserve, although many individuals will use the power incorrectly (Machiavelli 1994, 129). Individuals who feel they ought to have the ability to decide specific parameters ofstate


The Dictatorial Power ofthe Masses

71

policy fail to understand the technical demand from issues. As the masses feel the need to decide technical issues, the dictatorial power ofthe masses creeps into the political systems. The masses condemn the voices ofthe technical elites, believing them to be dictatorial, but truly there is little difference between the dictatorial powers ofthe many and the dictatorial power ofthe elites. Even though stability becomes possible with a sovereign, a fear forms from the power ofa single individual being able to distinguish friend-enemy. A system ofchecks on the sovereign limits the overreaching power in two distinct ways. First, a sovereign’s actions can affect their reputation in a positive or negative manner. Actions that positively affect the reputation ofthe sovereign increase the authority ofthat individual. [I]t is difficult to conspire against someone who is respected in this way, difficult to attack him, because people realize he is on the top ofhis job and has the loyalty ofhis employees. (Machiavelli 1994, 56)

The sovereign requires the respect ofhis or her citizenry in order to maintain legitimacy. Even in cases of dictators and totalitarian regimes, some form ofrespect is necessary, such as the respect ofviolence and oppression. Since respect is so important to control, it facilitates a dynamic ofneutrality, or indelible desire to have virtue. Machiavelli’s realism would agree that a middle ground is necessary because, realistically, an extreme towards appeasing the people or an extreme towards wickedness would cripple the rule ofthe sovereign. The second restraint on the sovereign is the construction ofa quid pro quo protection built between the authority and citizenry. When a citizenry offers up power to a sovereign, they do so expecting reciprocity oflimiting their own power. Machiavelli upholds this idea through his explanation ofCesare Borgia, where, “it was necessary, if[Borgia] was going to make the providence peaceful and obedient to his commands, to give it good government” (1994, 24). A good government in this case was one that protected the citizens from the amount of, “robbers, bandits, and every other type ofcriminal” (24) that had been plaguing the people before Borgia’s rule. In order to do this Borgia instilled a ruthless leader and eventually overthrew the illegitimate authority to consolidate his own power. Doing this instilled the protection that the citizens deserved (24-25). Citizens expected and demanded from those in authority protection from outer infiltration ofentities that could harm their collective; this fundamentally protects the citizens, even under an ultimate sovereign’s rule because it is both: demanded by citizens and would undermine a ruler’s authority to go against this request oftheir citizenry. A mechanism exists within the political realm that garners a resistance against a misuse ofpower offered to the sovereign. Deliberation, at some forms, binds citizens by mutual respect. The connection that citizens have with one another is a means to insulate the enemies in society. “The enemy in the political sense need not be hated personally, and in the private sphere only does it make sense to love one’s enemy, i.e. one’s adversary” (Schmitt, 29). Deliberation cultivates a mutual respect and an awareness ofa worth that the other, who may or may not be the enemy, retains. “Whenever people come together, the world thrusts itselfbetween them, and it is in this in-between space that all human affairs are conducted” (Arendt, 106). The frame that deliberation offers builds a means to understand worth ofenemies within society.


72

Nicholas Sideras

Enemies are not dispensable, but retain worth as individuals. Denying the enemy completely and repelling them from the society, in turn, destroys politics. Enemies are essential to create any distinction ofideas, and without this the whole system ofpolitics is destroyed because this micro-political level of deliberation is where the whole foundation ofpolitics resides. When people no longer come together politics disappears due to the inability to create a true friend-enemy distinction. Discourse in this way competes with Schmitt’s understanding ofthe political. Schmitt believes that deliberation avoids the definition offriend and enemy and perpetrates violence in a more climatic means than the actual political should. The political realm explained here shows that a system based on deliberation alone could still accomplish all the needs that Schmitt desires for the political. Discourse and deliberation does work as a system ofthe political community when done effectively. Although, when a sovereign ofthe Machiavellian understanding exists to distinguish friend-enemy, the system works completely. Consolidating the power ofthe sovereign makes the political realm possible. Limiting the violence a sovereign can perpetrate on the deliberative system is necessary. Additionally, the sovereign can use the practical tool offriend-enemy distinctions as is necessary and must avoid improper definitions ofenemies. The political realm exists in one ofthe most intense and dramatic mediums ofsociety. Within this community ofideas, issues ofthe highest magnitude are discussed and challenged based on their validity and correctness. This world is not a passive community, but one oftrue debate and warfare. The political community does flex and contract to the citizenry, but it is not obligated to contort itselfto the desires of the masses, for the bonds can break and the conflict can begin. Although rhetoric ofwarfare and force are used within the context ofthe political, the system rests on a single component ofmutual respect. Without mutual respect, the political community could never flourish, but would internally destroy itself. Constant violence and projection ofself-interest would undermine the goals ofpolitics. Works Cited

Arendt, Hannah. 2005. The Promise ofPolitics. Edited by Jerome Kohn. New York: Schocken Books. De Grazia, Sebastian. 1948. The Political Community : A Study ofAnomie. Chicago: University ofChicago Press. Estlund, David M. 2008. Democratic Authority: A Philosophical Framework. Princeton: Princeton University Press. Flaumenhaft. Mera J. 1981. “Introduction.” In Mandragola. Prospect Heights, IL: Waveland. Gutmann, Amy, and Dennis F. Thompson. 2004. Why Deliberative Democracy? Princeton: Princeton University Press. Machiavelli, Niccolò. 1994. Selected Political Writings. Translated by David Wootten. Indianapolis: Hackett.


The Dictatorial Power ofthe Masses

73

Ober, Josiah. 2008. Democracy and Knowledge: Innovation and Learning in Classical Athens. Princeton: Princeton University Press. Posner, Richard A. 2003. "Democracy Defended." In Law, Pragmatism, and Democracy. Cambridge, MA: Harvard University Press. Rawls, John. 2005. Political Liberalism. New York: Columbia University Press. Schmitt, Carl. 2007. The Concept ofthe Political. Chicago: University ofChicago Press. Sunstein, Cass R. 2009. Going to Extremes: How Like Minds Unite and Divide. Oxford: Oxford University Press. Thucydides. 1998. The Peloponnesian War. Translated by Steven Lattimore. Indianapolis: Hackett.


74

TC Review Reader Women and Politics Fox, Richard L. and Jennifer L. Lawless. 2003. "Family Structure, Sex-Role Socialization, and the Decision to Run for Office." Women and Politics 24(4) 2003. Gurin, Patricia. 1985. "Women's Gender Consciousness." Public Opinion Quarterly 49 (2): 143-163. Huddy, Leonie and Terkildsen, Nayda. 1993. Gender Stereotypes and the Perception ofMale and Female Candidates." American Journal ofPolitical Science 37(1): 119-147. Mansbridge, Jane. 1986. Why We Lost the ERA. Chicago: University ofChicago Press. Lawrence, Regina G. and Mekody Rose. 2009 . Hillary Clintonâ&#x20AC;&#x2122;s Race for the White House: Gender Politics and the Media on the Campaign Trail. Boulder, CO: LyneeRienner Publishers, Inc. Sapiro, Virginia. 1981. "Research Frontier Essay: When are Interests Interesting? The Problem of Political Representation ofWomen." The American Political Science Review 75(3): 701-716. Suggested by D R. ANGELA HIGH-P IPPERT, Director ofthe Women's Studies Program at the University ofSaint Thomas.


75

Call for Papers The Twin Cities Review ofPolitical Philosophy is seeking quality undergraduate papers in political philosophy for publication in its premier issue. The journal will be published as a freely available electronic interactive magazine. Undergraduates, with or without faculty support, are encouraged to submit research work. The Twin Cities Review ofPolitical Philosophy is interested in diverse subject matter. As a policy, we prefer scholarly work that: (1) clarifies an unclear or challenging concept, passage, or author in political thought; (2) publicizes a lesser-known argument that merits greater attention; or (3) offers new insight into existing worksâ&#x20AC;&#x2122; arguments or methods.

Submission date: January 30, 2012 Guidelines for paper submissions: Submissions may be between 1,000 â&#x20AC;&#x201C; 3,500 words, or longer ifaccepted by the editors. Submissions should clearly address an aspect ofpolitical philosophy. All citation should be done in accordance with the Chicago Manual ofStyle. Author name, mailing address, school affiliation and email should appear on a separate cover letter. All submissions must be saved in the Microsoft Word .doc extension. Only electronic copies ofpapers will be accepted. Send to: Brianne Reeves reev2550@stthomas.edu Student Editor-in-Chief University ofSaint Thomas


Twin Cities Review of Political Philsoophy Volume 1