Tuesday, July 30, 2013

Idiocy and Utopia

published on AlterNet
The ancient Athenians had a name for people who were unable to participate in and determine the course of public life: idiote. It is from this that our word idiot derives. And though we live in so-called democracies, these days very few of us are not idiots in this powerless respect. To be sure, though he doesn't phrase it in such a manner, in his Theses on Feuerbach Karl Marx draws attention to just this intersection of these two meanings of idiot (fool and dominated subject). The point of philosophy, he states, is to change the world. But the world cannot be meaningfully changed without interpretation. And who is to educate the educators? This leads us to a problem. The idiot (who is unable to interpret the world) is inextricable from the idiote - who cannot change it.

When considering how to rectify the various forms of political idiocy that are produced and reproduced by this society, one of the most obvious things that comes to mind is education. After all, at its best education is indistinct from broadening minds, opening eyes, and aiding in the contemplation of our mysterious existences - not to mention solving the problems that such contemplation brings to consciousness. As the early 20th century philosopher John Dewey put it: Education is not preparation for life; education is life itself. At its worst, however, education is arguably not even education at all. What passes for education is, more often than not, merely indoctrination. And such is the condition of virtually all levels of education in the US today. Subjected to the demands of the market and the state, rather than facilitating a good faith examination of the world, education functions as a massive industry busy creating and recreating this society's 'idiotic' projects, along with its ideologies. Rather than critical thought, it is but a tool of a type of thought so uncritical it leads one to wonder whether it even qualifies as thought at all.

This point was made very strongly by the French philosopher Louis Althusser. In his 1969 essay Ideology and Ideological State Apparatuses, Althusser refers to the institution of education as the Ideological State Apparatus par excellence. These days, as schools function as either businesses, or minimum-security prisons, and Janet Napolitano, the former head of the Department of Homeland Security, seamlessly slips into the presidency of the University of California system, it is difficult to argue with Althusser's conclusion. In spite of the above, however, a radically emancipatory kernel remains implicit within the concept of education. For what is the point of education? Though some may contend that it is simply instrumental, its point penetrates further - to question the purposes, the reasons - for any instrumentalization. Such larger, critical questions lead not only to the interpretation of the world, but to questions of social and economic justice.

As more and more public schools are being privatized, and standardized test-taking skills stand in more and more for thinking, and even essays are being graded by computer programs, it is disheartening that the opposition to this extreme commodification of education is more or less restricted to no-brainer demands for reductions in classroom sizes, and requests for basic materials and facilities. In other words, the basic model and function of education is by and large not seriously questioned at all. This is highly troubling for a number of reasons, not least of which is the fact that the critique of the institution of education can draw out its critical kernel and lead to emancipatory forms of social organization.

Consider the community college. Rather than viewing these simply as feeder schools for four-year colleges and universities, community colleges could develop into new forms of social organization. Collectively-run community colleges - one for every couple of thousand people across the continent - could develop cooperative economies beyond the compulsion of the market. Developing the potential and the expertise of their respective communities, these colleges could support agriculture and horticulture departments that would meet their community's food and nutrition needs. Nursing and medical schools could train doctors and nurses who could, in turn, run and support community health clinics. Engineering, design, and architecture departments, in concert with ecology departments, could attend to the community's basic heating, plumbing, housing, and transportation needs, among others. Art and cinema departments could flourish within each community. Dispute resolution programs could help resolve disputes within the community in non-punitive ways. Journalism departments could support the journalism that is vital for an informed public. In cooperation with one another in regional, and inter-regional networks, such community colleges could not only share what they produce, and organize events such as film festivals; they could attend to the problems of their particular community entirely beyond the profit-based demands of the physically, psychologically, and environmentally destructive market-economy, and beyond the State as well. And though it may sound farfetched - utopian even - to suggest that such a reimagining of the institution of education could contribute toward the overcoming of our present-day political idiocy, over the course of human history far stranger things have actually happened.

Monday, July 22, 2013

The Supreme Law

posted originally on AlterNet

Among the crucial issues raised by the prosecution of Bradley Manning and the persecution of Edward Snowden is the question concerning what law should serve. Is law's basic purpose order or justice - the maintenance of the way things are, or the instantiation of what ought to be? What is primary, the letter or the spirit of the law?

Over the course of history, the spirit of the law has generally been regarded as law's more important dimension. Indeed, without serving a higher spirit or ideal - such as justice, fairness, or the common good - the mere letter of the law tends to be conceived of as nothing more than brute force. It is just this notion that provides the rationale for acts of civil disobedience; as Martin Luther King put it, citing Saint Augustine, an unjust law is no law at all. Consequently it has no authority, moral or otherwise. And while it may sound counter-intuitive, it is no exaggeration to remark that what is known as the Right of Resistance has to some degree been a feature of law since biblical times - for even the bible allows for the breaking of the sabbath, and other laws, if a person's health, or welfare, is in jeopardy. Axiomatic of justice, this notion of the spirit of the law prevailing over its mere letter underpins the US Constitution itself; for in its preamble the Constitution clearly states that its purpose is, among other things, to "establish justice," and "to promote the General Welfare." That is, implicit in the Constitution is the idea that law, the order of things, must yield to the demands of justice - and that the law that does not prioritize the general welfare, that is not animated by the spirit of the law, is no true law at all.

What is of especial relevance in interpreting the meaning of the General Welfare is the ancient legal maxim salus populi suprema lex esto. Ingrained in US Constitutional law, the maxim is attributed to the Roman philosopher and statesman Cicero (106-43 BC). Once a feature of Roman law, the maxim spread throughout the Roman Empire. And by the time the empire dissolved, centuries later, the maxim had become embedded in legal systems across the former Roman world. Indeed, within early English common law the maxim carried the force of law itself. Usually translated as the health of the people is the supreme law, in his Table Talk, the 17th century English jurist John Selden (referred to by John Milton as "the chief of learned men reputed in this land") pointed out that since the term esto is in the imperative mode, its proper translation ought to be 'the health of the people should be the supreme law.' In other words, the maxim is not a statement about how things are, but a command as to how things ought to be. And that is how the maxim has functioned. It has been used to nullify laws that conflict with this higher principle. When faced with the question of how things should be, of what the supreme law should be, the maxim holds that the deciding factor is the health (or welfare) of the people. Cited in dozens of US state, federal, and Supreme Court decisions, this maxim continues to exert persuasive power in US law. However, because the maxim suffers from the same ambiguity that law itself suffers from, over the centuries the maxim has been construed to mean either order or justice – the welfare of the people, or the welfare of the rulers.

For example, while Machiavelli (in his Discourses on Livy) interpreted the maxim in a manner that emphasized order, during the 17th century - while common lands were being converted into salable things, enclosed, and sold off, rendering the people that had historically lived on those lands into homeless refugees - the so-called Levellers cited the maxim to justify their efforts to fight off these enclosures. The health of the people should be the supreme law, they argued. And because the health of the people requires land on which to live, its alienation is contrary to the supreme law and must therefore be halted. Reacting to the Levellers, among other things, Thomas Hobbes invoked the maxim in his Leviathan, emphasizing the order of Absolutism. A generation after Hobbes, John Locke famously employed the maxim as the epitaph to his Second Treatise on Government. Referring to the maxim, Locke wrote that it "is certainly so just and fundamental a rule, that he, who sincerely follows it, cannot dangerously err." By way of Locke, the maxim influenced the Founders of the US who, like Locke, emphasized the emancipatory dimension of the maxim in their efforts to free themselves from the domination of the British Crown.

While the maxim has been instrumental in justifying the shift from Monarchy to Democracy, it is not limited to such a use. Incorporated into US law, the maxim has been cited as an authority from before the ratification of the US Constitution to the present day - though with varying interpretations. After the Revolutionary War, for instance, while former soldiers were besieged by war debts - leading to Shays' Rebellion, among other uprisings - in South Carolina southern debtors argued that their war debts should be expunged altogether. The health of the people should be the supreme law, they argued. And because such debts were sapping the peoples' strength, thereby harming their health, these debts should be against the law. The South Carolina courts agreed with this argument, and debtors' debts were forgiven. While the above example is problematic, not least because of the proliferation of brutal slavery (which apparently did not violate the Health of the People), it is nevertheless an important event in the history of the maxim - a precedent that contemporary debtors could invoke today to nullify consumer, student loan, and other debts.

After the ratification of the US Constitution, and throughout the 19th century, courts across the United States employed the maxim to justify the power of municipalities to pursue ambitious public health programs. Not only were the people empowered to build things - such as sanitation systems - the maxim empowered people to tear things down as well. If, for example, a slaughterhouse, or tannery, or any other noxious activity were found to impair the public health, polluting waterways and other things, the courts found again and again that the people had the power and authority to eliminate the offensive operation.

Although the maxim would be invoked by courts during the early 20th century, and even by FDR, with the rise of the power of the industrial business classes the courts employed the maxim less and less frequently. And when the courts did employ it, they began to emphasize its dominating aspect. To be sure, this (mis)interpretation has held for much of the 20th century and into the 21st. Recently, for example, the maxim has been cited by John Yoo, among others, to support the power of the state to perpetrate torture. Torture, which is directly contrary to the health of people and justice, does support order and the "health," or strength, of the state. And, because the notion of the general welfare suffers from the same ambiguity that law itself suffers from, John Yoo would very likely argue that torture is itself necessary to achieve the general welfare. What, however, does the general welfare really require? What do people require to fare well?

Because threats to our physical, ecological, and psychological health are threats to our general welfare (consider, for example, the adverse effects that global warming, pollution, and war, not to mention poverty, unemployment, an overblown prison system, and our crumbling infrastructure have on our collective health), the general welfare requires that we re-interpret the maxim that the health of the people should be the supreme law and employ it to direct our collective resources into creating a genuinely healthy world. To be sure, in many respects, the creation of the actual conditions of health is no different from the implementation of concrete conditions of justice. And, though aspects of this may run counter to the letter of the law, this is precisely what the spirit of the law demands.

According to a critical reading of the maxim, if the health of the people should be the supreme law, then that which is contrary to the health of the people ought to be against the law too. As such, not only would social, economic, and other conditions that cause occupational, industrial, and other diseases be against the law, those institutions and practices that create - or recreate - obstacles to the conditions of health (not just obvious practices, like fracking, but deeply exploitative institutions, like rent) should be against the law as well. Moreover, if unhealthy conditions such as air pollution, malnutrition, poverty, war, etc., are illegal - against the supreme law - then this implies that there is a duty to correct unhealthy conditions; for if the mere existence of such unhealthy conditions is against the law, a society would be under a duty to get rid of such conditions of disease in order to comply with the supreme law. This interpretation of the maxim leads to the conclusion that where they are absent society has an obligation to create actual conditions of health - an interpretation of the maxim that gives rise to positive rights to housing, nutrition, education, recreation, rest, and other conditions of physical, psychological, and ecological health. One should not, however, infer that such an interpretation would allow for intrusions on people's autonomy. Because autonomy is a constitutive aspect of a critical notion of health, people must be free to partake in activities that could be seen as harmful to their personal health - such as using recreational drugs - so long as such personal activities are consensual and do not interfere with the health of the people in general.

Some will no doubt argue that, though conditions of health may not exist, a market economy provides the most efficient means of achieving these conditions of health. Among its other deficiencies, however, this argument overlooks the fact that a fundamental conflict of interest arises whenever a condition of health - such as health care, nutrition, housing, etc. - is subordinated to market forces. Because production and service delivery in a market economy is under a compulsion to derive a profit (it is, after all, a business) a conflict of interest of necessity arises between securing profits and securing "health-value." Because profit is primary in such a system, it is the decisive, determining factor and as such prevails in conflicts of interest, exposing people to conditions of disease (sleep deprivation, toxins, etc.) contrary to the supreme law. Properly creating the conditions of health (which, according to the maxim, a society has a duty to provide) therefore requires that these conditions be free from the pressures of the market. As such, conditions of health (nutritious food, housing, health care, etc.) must be produced and distributed in a democratic manner outside of market relations altogether.

This issue of profit, health, and value brings us back to the question concerning the purpose of the law. What, in the end, is the law (and the economy) for in the first place? Is it to merely reproduce what is? Or is it, rather, to produce what should be? And what should be? Should "the health of the people" be subordinated to the economy (as it presently is, resulting in epidemics of cancer, not to mention ecocide, among other harms)? or should the economy, and other institutions, be subordinated to the "health of the people"? As already noted, the maxim maintains that "the health of the people" should be the deciding factor, the ultimate value, the supreme law. That the word value itself is derived from the Latin term valetudo, which means health, only further attests to the deep complementarity of these two notions.

As we hurtle toward ecological calamities of ever greater magnitudes - among other harms to our collective health - it is crucial to recognize that a critical interpretation and application of the maxim that the health of the people should be the supreme law would not only allow us to prioritize our collective health and mitigate these actual - and intensifying - harms, it would also, in many respects, allow for the concrete realization of conditions of actual justice (housing, nutritious food, health care, the elimination of war and poverty, the creation of a healthy environment, the securing of civil liberties, etc.) throughout the world. While many will no doubt resist such a radical transformation of the status quo, the reasonable person will recognize that one must have priorities. And who can reasonably maintain that our collective health - broadly defined - should not take precedence over the narrowly construed notions of wealth and order presently ravaging the planet?

When one considers the fact that the US Constitution's stated purpose is to further "the general welfare," and that "the general welfare" is entirely congruent with a critical, comprehensive, supranational health (not a superficial, instrumental notion of health, but health as an end in itself), it is hard to reject the argument that the instantiation of such a radical, critical health would be nothing less than the realization of the spirit of the law - the notion that provides the basis for the legitimacy of law in the first place.

Wednesday, July 10, 2013

The Sublation of Distributive and Restorative Justice

published on state of nature

While political and social theorists largely agree that a given society’s legitimacy and worth can be measured by the degree to which justice is achieved, few agree on what justice actually means. Indeed, it is an understatement to remark that efforts at articulating a lucid conception of justice have resulted in many overlapping, and at times conflicting, notions. These range from little more than justifications for revenge – referred to as retributive justice – to theories of justice that concentrate on preventing injustices from arising in the first place – creating the conditions which justice requires in order to be realized. An example of this latter notion of justice is distributive justice. Popularized by the American philosopher John Rawls, distributive justice seeks to distribute society’s resources in a fair manner. Somewhere between retributive justice theories and distributive justice theories rests restorative justice, which more or less sees justice arising from the restoration of a wronged party’s pre-wronged position.

While distributive and restorative justice tend to be viewed as more or less distinct, a critical look at the former reveals that in at least one crucial respect theories of distributive justice are highly flawed; to the degree that they neglect considering a restorative justice dimension, distributive justice theories fail to recognize how society’s resources and wealth became so unjustly distributed in the first place.

Advocates of distributive justice argue that a society’s resources ought to be distributed in an equitable manner. In addition to taking the position that people have an ethical duty to help one another, there is a human rights aspect to this argument as well: all people have a right to a certain basic level of welfare. As such, resources need to be distributed in such a way as to allow all people to benefit. At first blush this seems hardly objectionable. However, there is considerably more to this injustice-demanding-correction than the moral issue of inequitable resource distribution. Beyond the wrong inhering in a situation which finds some having so much food that, for example, it rots before they can even use it – or they destroy it intentionally to keep up its exchange-value while people are starving to death the world over – lies the wrong of how they acquired control of so many resources in the first place, and how the rest of the people of the world lost control of these resources.

Despite the ideological dogma to the contrary, the wealthy did not come into possession of the majority of the world’s resources by virtue of a more successful cultivation of the land, greater assiduousness, divine selection, etc. Rather, the historical fact is that this acquisition was carried out by means of a conquest that itself constitutes a monumental series of harms. As Balzac remarked in his Pere Goriot, behind every great fortune there lies a great crime. And the great fortunes deriving from the enclosure, privatization, and sale of what was formerly commonly owned land in Britain and Europe, among other places, not to mention the genocidal conquests of the Americas, Africa, and parts of Asia – among other former colonial possessions – are not excepted from Balzac’s observation. Indeed, the persuasiveness of distributive justice theories lies not so much in the recognition that the great majority of the resources of the world are held in a very few hands and that an equitable distribution of these would contribute to a just world. This is only part of the persuasiveness of these theories. The other part rests in the recognition that these very resources were once – and not very long ago, either – more or less held in common by most people in the world, and were only concentrated into extreme wealth by way of a series of murderous expropriations, and assembled into their valuable forms by mass enslavement, coerced labor, and other harms. As such, the redistribution of the world’s wealth is not simply a matter of distributive justice; it is a matter of restorative justice as well.

Elliot Sperber is a writer, attorney, and contributor to hygiecracy.blogspot.com He lives in Brooklyn and can be reached at elliot.sperber@gmail.com

Tuesday, July 2, 2013

Edward Snowden/Knowledge (of Metadata) Is Power

posted originally on Alternet

If the expression knowledge is power - attributed to the English Renaissance philosopher Francis Bacon - is true, then it implies, among other things, that its opposite is also true. That is, if knowledge is power, then the lack of knowledge, or ignorance, amounts to a lack of, or exclusion from, power. As such, removing, obscuring, or hiding knowledge - in a word, secrecy - not only creates power, it produces powerlessness, weakness, and vulnerability as well. Indeed, as Elias Canetti phrased it in his Crowds and Power: "Secrecy lies at the very core of power." As the state, then, acquires ever more knowledge/power through such programs as PRISM, 'the people' in general - in spite of the State's dubious claims of enhancing security and safety - are only further weakened, put into an ever more vulnerable, precarious position. In addition to the myriad political, legal, and ethical issues embedded in the debate concerning the whistleblower Edward Snowden's ongoing disclosures of classified information, this nonconsensual, actual precarization of the public (by secretive state and private-sector agencies whose authority to gather this power is by no means clear) constitutes a substantial harm in itself.

As such, those who argue that mass surveillance is wrong because it leads to horrible things at the bottom of a slippery slope entirely miss the point. Notwithstanding the fact that the 'slippery slope' is a logical fallacy, the harm under consideration does not lie in some hypothetical future. Beyond present-day trespasses to people's privacy, this actual disempowerment, which replaces political subjectivity with political subjugation to an unprecedentedly powerful state, is a present, concrete harm. That the disclosure of secrets disrupts this unprecedented aggrandizement of power to some degree explains why whistleblowers like Bradley Manning, Edward Snowden, and others are exposed to such vengeful persecution. Insofar as whistleblowers have exposed this secrecy, along with its contents, they have not only redistributed knowledge, but have redistributed and threatened power as well.

Though US political culture has traditionally (if only nominally) claimed to be suspicious of concentrations of power, in reality order - as opposed to liberty - is predicated on just such concentrations. To be sure, while people like to point to the Constitution's separation of powers schema as evidence of this alleged enmity to tyrannical concentrations of power, it is nothing short of a political-economic fact that that which is subject to separation hardly comprises actual power. For let us not forget that the US is a 'representative democracy.' And the interests represented in local, state and federal government alike are overwhelmingly those of the rich. This should not be too contentious a claim. Not only do the rich bankroll practically every candidate running for public office - and so act as gatekeepers to political office - the Supreme Court's notorious decision in Citizens United (which holds that money is consubstantial with political speech) only amplifies this dynamic; in spite of any rhetoric to the contrary, one's political power is contingent on one's economic power.

When one factors into this the reality that economic power has concentrated to unprecedented levels over the past few decades - to such a degree that the top 1% of the country now controls more than 42% of the country's wealth - it takes willful blindness to fail to see that power is not only notseparated, it is concentrated into what without hyperbole can be described as tyrannical intensities.

So, although Obama may argue that checks and balances are in place and that what the national security state is doing is legal because the three branches of representative government agree that it passes constitutional muster should not be terribly persuasive; let us not forget, Obama claims that due process requirements are satisfied  when officials confer in secret to select who gets placed on secret kill lists. Even the New York Times, in a recent editorial responding to disclosures of mass surveillance, proclaimed that "the [Obama] administration has now lost all credibility on this issue."

With his dystopian Disposition Matrix, his secretive drone strikes, his massive surveillance programs, including PRISM, and his record-breaking prosecutions and persecutions of whistleblowers - not to mention ongoing abuses at Guantanamo, among other places - well into his second term in office it is not difficult to see that Obama's presidency is far from offering a corrective to the excesses of the Bush years. Indeed, although George W. Bush's aggrandizement of the executive branch was exceptional, it pales when compared to Obama's permanentization of what, under Bush, were still temporary powers. And as secrecy confers more and more power, and leaks and disclosures of secrets threaten this power, it is unsurprising that Obama will pursue Snowden, and others, with the tenacity of those zealots whom Obama claims to be the cool, polar opposite of.

While it may sound grandiose, it is nevertheless the case that by disclosing secret information, such as the existence of PRISM, Edward Snowden has to some degree fragmented and dispersed the concentrated power of capital and the state. And as more revelations are said to be on the way, it is interesting to consider the meaning of the word revelation, and to note that revelation is the English word for what in Greek is termed apocalypse. Apocalypse, of course, carries a double meaning. Not only does it connote unconcealment, the revelation of what is hidden and secret; it also denotes the destruction of a world. And perhaps this is what Obama and the class he represents are so terrified of after all: that the injustices that are being revealed will lead to the end of their world of power. Hopefully it will - and will lead to the instantiation of a world in which justice, as opposed to dominating power, is realized.

Elliot Sperber is a writer, attorney, and contributor to hygiecracy.blogspot.com He lives in New York City and can be reached at elliot.sperber@gmail.com