Important versus interesting

When I first came to SCOTUSblog, I quickly faced the brutal cut between ideas and writing that were blog-worthy or not. After suggesting that we report on the reenactment of a historical case, ex parte Milligan, with Justice Scalia, I got a sharply worded email from Tom. The blog's Twitter feed was reserved for snippets that weren't worth a post. We were repeatedly told that there are 1000s of "interesting" things out there, most of which don't appear on the blog. I thought that I might, with such a sharp distinction between the types of content, stop appreciating random observations that make interesting -- if not "important" -- connections.

However, I appreciate those interesting observations just as much now. I simply have come to carefully place each new bit of interesting information into its place. That is to say, I've figured out which medium is best for communicating different types of insights--whether on the blog, in a paper, in a journal, in a conversation, over Twitter, over Google Reader, etc. As a result, I've become better at, or learned the lessons necessary to become better at, hanging onto ideas as I stumble upon them. That, I think is important, for any thoughts we have that others in our position might share -- that are freed from our own personal experience, or merely informed rather than dictated by our personal experience, may be worth sharing.

I think this is especially important because the quality of importance is often conveyed by the current time and situation--and your social circle. It may not be important now to understand what Merrick Garland would rule on certain cases, because we don't estimate he will be nominated. But at the point that he is nominated, it will be crucial. And because of this transience of importance, a quality that often alights on a piece of information briefly, rather than describing its everlasting core. So I think it can be important to pursue these "interesting" thoughts even if they are not important.

At the same time, working for the blog has given me a much more heightened sense of what type of comment is "acceptable" in different social settings. The search for "important" information or "relevant" information is largely a search of the social setting. And thus, in the process, you can often pick up on information that is at least appropriate to mention in a given circle.

Women dominating a man's world

It's a truism that this is a man's world. But who cares? At least in many cases, the characteristics about it that make it "male" don't necessarily make it much easier for men to dominate. For example, I recently realized that women seem far more concerned about "tone" than are men. They tend to contemplate layers of meaning and intention behind a statement when there may not be any. Yet it is relatively simple for women to stop caring so much about tone. Just don't take it to heart that a tone sounds degrading, so long as it isn't actually. The mere fact that the baseline is male doesn't have to be offensive.

There are two exceptions. The first is when the male-biased baseline actually makes it easier for them to function and succeed in a culture. For example, when the baseline for effective communication is volume, the louder voices of men makes them succeed more easily in communicating. This becomes an issue of fairness when the advantage is not natural (we actually hear better when we have higher volume) but was historically established by men in dominant positions by influencing our values. For example, the (rough) tendency of American culture to value masculine strength and sports over music and art might be thought problematic for women, who cannot compete physically.

The second exception is when there is active bias against women wholesale, not about any particular quality of them. This is obviously not something women can escape easily. This is, for example, the trouble Ruth Bader Ginsburg faced in law school when her ideas would be ignored but then congratulated in the mouth of a male.

Yaron's Willy Lowman Argument

Yaron just pointed out to me a beautiful, though for many crushing, argument about the life of achievement.  I call it the Willy Lowman Argument, and the conclusion is that we should never base our entire life's fulfillment on reaching some "achievement."  For, even if we are to trace the life trajectories of all the men in history of great achievements, and discover some pattern in those trajectories, and then model our lives exactly on that pattern, the likelihood of our achieving something similarly great is very slim.  For this looks at only a biased sample of men and women: those who achieved.  The appropriate sample is those men and women who followed a similar life trajectory.  Those who actually achieved are in all likelihood a tiny minority.  This is because the outcomes of our any particular action are determined by many circumstances beyond our control: the financial market collapses, the greatest discovery of the century happens at the same time as yours and the Nobel Prize goes to it that year, the nomination for the Supreme Court doesn't come up or doesn't come up during the right presidency, etc.  Thus, we act irrationally if we hedge our life fulfillment on the achievement of a goal, because we are highly unlikely to achieve it--and all the motivation, determination, and hard work that we can muster to make it happen is drastically causally insufficient.

Of course, there is a caveat.  Many would say that the very pursuit of a goal is a fulfilling lifestyle, like Woolf's To the Lighthouse.  We are likely to at least get somewhere toward our goal: even if we do not win the Nobel Prize, we make some great discovery and are respected by our scientific colleagues, even if we are never appointed to the Supreme Court, we become a great federal district judge.  But we are still bound to end in disappointment, insofar as we fail to achieve the goal.  Perhaps we can make an argument in favor of this lifestyle nonetheless, because it is necessary for human progress for there to be individuals who are driven to attain the highest social achievements.  Yet, I wonder how many people actually need such a narrow drive, how many people who became great were driven by such a narrow goal--I suppose this is an empirical matter.

Perhaps what we can instead do to define self-fulfillment was suggested by Yaron: the pursuit of valuable activity.  If we enjoy every moment of our lives, and can find contentment in our day-to-day activities, perhaps we can n this way be fulfilled.  That does not mean stoically lowering our expectations.  And it does not mean that we do not need to have some achievements in order to find a position where we can begin to engage in meaningful activity (we do live in society, after all!). But it does mean finding meaning in the activity, without reference to any goal that is very specific or very long-term.  For me, those things include teaching, litigating, making big decisions on an everyday basis, etc.

But Yaron is right, I think, that this observation is, for many, crushing.

"You can spend your whole life working for one thing..."

"...just to have it taken away." -Brett Dennen, "There Ain't No Reason"

The truth of this line struck me while I was jogging yesterday.  We sacrifice the results of our efforts all the time for the sake of living in a society, and for the prosperity of that society.  We do not achieve our dreams despite our utmost efforts -- either because of poor luck, or because we did not do well enough relative to others, who may or may not have been advantaged from the start.  

We can literally spend an entire lifetime focused on one goal, and still fail.  The chances are pretty slim, but not impossible.  And the chances of failing when you spend a LOT of time--but not a lifetime--working for one thing are not inconsequential.  

But it is more than that.  We also lose compassion in evaluating the claims of others to their dreams.  For we must sacrifice them, too, in our criticism, for the sake of living in a society, and for that society to prosper.  From the moment that we are born, we are indoctrinated with the notion of virtues.  We are told that people who have these virtues are better than others, and are more likely to succeed--which is true.  But we are also taught to value these virtues in and of themselves.  We all come to believe, in a deeply engrained way, that we are better people if we have these cvirtues.  We ought to aspire to achieve these virtues even if we do not achieve our goals.  

Furthermore, the odds are much higher for people in our society who start off advantaged.  They are much more able to succeed in the values system we've established for ourselves.  But, for lack of a system that produces better results, we must simply accept their dominance--in part because it does not entirely preclude the rise of others.  (There is never any moment at which certain goals will be entirely closed off to you, so long as you haven't yet hit old age or incapacitation.  Almost all long-term goals can be achieved through alternate, non-socially-sanctioned ones.)  But nonetheless, we must constantly turn a blind eye to this fact in order to motivate everyone, including ourselves.  For we would become too weepy if we failed to value individual achievement and dwelled too much on getting everyone to start in the same spot.  The people I know who have the best motivation are also those who do not dwell on their starting place, or on the distance they must travel.  They simply do not care how far they must travel relative to others--simply that they care about the goals and can feasibly travel the distance.

There is one potential way out of this difficulty: we all gain happiness from living vicariously through others, or from living in such an accomplished society.  This argument seems plausible.  For I certainly get a lot of utility from watching videos of spacewalks on the international space station, or from watching people run in the Olympics.   Perhaps we simply value living in a society with such an achievements-studded history that we are willing to sacrifice the risk of personal failure, or of shallow compassion and mercy.

I think this is the same general phenomenon that happens in criminal law, when we refuse to give second chances to criminals because our society is trying to motivate the conduct of others, even when some individuals may feel compassion toward criminals who seem to have made a single mistake that will ruin their entire life.  Can we really believe that someone "deserves" a lifetime of pain for killing one?  Of course, the conduct we are trying to motivate here is pretty basic, just refraining from harming others.

So when Brett Dennen says There Ain't No Reason, I reply that there is a reason.  But it requries a sacrifice on the part of the losers.  So, depending on your position of what constitutes morality, there ain't no reason for those of us who fail to abide by social rules that praise individual responsibility.

Liberal v. conservative: real or illusion?

We talk about this division all the time as though it represents a fundamental difference between people.  As it turns out, it's not so easy to figure this one out.  The only real personal difference in outlook between liberals and conservatives is the liberals' (1) heightened empathy and pessimistic feeling that individual responsibility (and a free market) just can't solve anything, (2) distrust of authority figures and organizations and therefore societally dictated morality, and (3) willingness to change institutions without much sentimentality.  In other words, conservatives are more likely to like social structures just the way they are and to believe that "internal" ingenuity and personal relationships are enough to invigorate the society and keep life worth living.  Liberals are much more likely to try to revolutionize the structures in order to solve injustices to individuals, because they believe these structures dictate a lot.

But when I'm talking to my conservative friend, do I ever feel uncomfortable?  Only when I think I might offend some structural value that she has -- such as religion or patriotism.  But other than that, we can hash out a lot of these fundamental differences quite rationally.

 

Motivation is all about obligations

Allow me to preach for a moment: The only way to aspire in life is to constantly be under the net of obligations and commitments -- ideally, ones you have formed for yourself. Yet almost equally valuable are other commitments that society has imposed upon you and you have endorsed, however actively or passively. To walk down the street without any obligations at all is to live an inactive, hence inhuman life. This could sound like a terribly burdensome view of life. Yet the secret to mastering it is not unburdening yourself, but finding the strength to bear the burdens as though they are light.

See Kundera.

Fundamentals of small-talk

I finally realized today, in the hair stylist's chair, that politics - and, more importantly, apolitical common topics - are the foundation of small-talk. I had always thought that these topics of conversation magically spring from the uniquely creative minds of conversationalists, but that just isn't true. I found an instant common ground with the woman cutting my hair in discussing the inauguration. I realized in the moment that I couldn't simply ask her for her political opinions - but I could ask her about an event in politics that anyone could have apolitical views on. The fact that 1.8 million people came was a great starting place.

One might ask what caused such naivety in me. I think the answer is that I'd always reflected on this outside the moment. There's something about being in the moment, in front of people, that forces you to be cognizant of what you 'can' and 'can't' do or say to them. I almost wonder if the claims people express against us are not uniquely individual, and conveyed to us through their body language and demeanor. (Of course everyone would convey the right to be treated as a human being -- but that one doesn't take being in the moment to recognize.)

Why we're entitled to more

In today's increasingly efficient world, where everything is faster-paced and we tend to be less altruistic on average to others because there are just more of us and - more importantly - we interact with others more often, I think the driving force of our change in attitudes is not just that we have more opportunities. I think it is also that we think we are entitled to more.

We are entitled to more, perhaps, because we have more activities that we are engaged in - which means more opportunities for rewards. It furthermore may take more work to do all of these things and, with the invention of things like red eye lattes and blackberrys, we can do more work than ever before.

Perhaps this is also because we see others around us taking advantage of these opportunities and actually getting more during life - and we all feel like we should be entitled to the same. It doesn't matter whether we realize that these people have devoted their lives entirely to the achievement of this one goal. We tend to think that everyone is entitled to whatever the greatest-achieving person in a society is entitled. That may be the secret of how inequality can be sustainable: if there is the opportunity for any of us to achieve the highest position in society.

This is also why the unrealistic optimism of American beliefs in self-ownership and initiative have also served as excuses for providing the appropriate support for people born into disadvantaged positions in society. If we cannot acknowledge that some simply cannot achieve higher positions, then we can scarcely be motivated to change this condition.

Obama

That was all the NYT headline read today. And the name now says so much.

Suddenly I feel proud to be an American, for the first time in my life - no exaggeration. What is most noteworthy is the fact that so many are treating this as a success not for Obama but for all of us. We don't even hear Obama's name mentioned all that much - just the victory itself. No one is mentioning much in partcular, just the pure potential that tis represents. Although we're all starstruck over Obama himself, he's so clearly symbolic. He's the first black, second-generation immigrant, professorial president in history. I tend to doubt the ability of symbolism to produce good, but Obama is symbolic in the best way possible: as an indicator of real demographic and attitudinal change. And to top off all his symbolism, he's smart, supported by a savvy staff, and beloved by the world. I'm going to throw caution to the winds and say he's perfect.

Cross-campus was awash with loud voices last night. Even my dining hall card-swiper greeted me with a wide smile today. We're all feeling the possibility of an Arendtian human power.

As the Guardian, of all newspapers, says, Obama is our hope.

Right, or just persuasive?

If you aren't persuasive, you lose in a debate. That is a sad fact of life. We recognize that reasoning must be transparent and public, and therefore our public policies should be determined by the winner of a dialogue, who demonstrates that he understands what types of reasons are compelling to others' interests. Compromise is essentially for clear speakers and thinkers.

But I think this is a problem on the individual persuasive/advisory level, where the articulate also have an advantage. A person necessarily understands her own interests better than others can. But if she cannot articulate her own position to herself, she can often be persuaded by others to follow a different course of action that is not, in fact, best for her. It is difficult to resist the persuasive power of a well-articulated intuition, unless we can defend our own intuitions in a similarly articulate manner.

I agree that the most articulate communicators are also the clearest thinkers, and often their expressed reasons simply are better than those from muddier thoughts. It is simply easier to think more deeply and complexly if one is working with clear parts. However, their reasons are often based on intuitions as well - they have just learned to understand those intuitions more clearly. The skill of explaining often doesn't change the intuition itself; the intuition may be flat wrong, whereas someone with weaker powers of communication has the correct intuition. This is especially dangerous when the articulate give advice, because their intuitions are especially ill-attuned to understand what is best for others.

Exactly how good is a Starbucks Vivanno?

Interpersonal comparisons of utility are indeed difficult to make because of the imprecision of language. Lauren Henry may think that a chocolate-banana Vivanno at Starbucks with espresso is "SO good" and gush about it for thirty seconds while I may think it is merely "a nice combination" because it is healthy, chocolatey, and full of caffeine. Or perhaps the latter is all that Lauren Henry thinks, she just takes that combination to be even more valuable than I do and thus worth thirty seconds of gush... Or perhaps she thinks no more of the combination than I do, but still thinks the combination worthy of thirty seconds of gush because of her more effusive tendencies... Which is it?

It could be that this question is as insignificant as the thought experiment of asking whether everyone sees blue as you see red, but expresses red in the same way that you express blue. But it could also be more significant, because it would seem to assign more moral weight to certain individuals based on the mere fact that they are more emotional and therefore gain more utility from certain acts - or fewer resources because they are likely to achieve the same utility from them. When we estimate utility, do we mean the mere emotional response, or the situation that normally produces a certain emotional response?

When Aristotle was right

Man is a political animal. Intuitively, this is right. Of course, it needs to be explained a bit further and Aristotle is not helpful on that score.

Prof. Steven Smith convincingly interprets Aristotle to mean that men are not necessarily naturally - that is, biologically - political. Rather, we are in fact political because we can only actualize ourselves in a political environment. Speech is the key. We can develop relationships between one another only because of speech, the ability to share a common language and therefore understanding. And, for some unexplained reason, we want to develop those relationships that we have the capacity for, and therefore we act in public. This is similar to Arendt's notion that we cannot be human without action in the public space of appearances.

But why do we seek out these relationships simply because we have the capacity to? And why are these necessarily positive relationships that we seek out? Why can't we evilly exploit our ability to communicate with others in order to use them for our means rather than working for mutual or common goals? There seems to be a built-in assumption that we naturally do anything that we have the capacity to do, or that these relationships are in fact better or more useful than other options and therefore, more plausibly, everyone will pursue them. That said, this is overwhelmingly true in practice.

As Smith suggests, why doesn't this belie Aristotle's other notion of inequality? If language and reason are natural to the human species, and not to particular members of it, and these are the foundations of politics, why do we not all have an equal role to play in politics? Perhaps Aristotle would say that the capacity to reason is not what makes us all equally proficient at politics, but only what sets the stage for all people to be governed by politics. If Aristotle's argument is, as I remember it, that rulers are fit for ruling and the ruled are happy to be ruled because they cannot govern themselves, then it does in fact make sense for all people to pursue political relationships, regardless of what the outcome will be for themselves.

Essentially, it is a fact that man is a political animal - simply because we are all involved in politics right now. But the explanation for why we do such and how we go about it is far more complicated.

A philosopher in crisis

Dear experienced reader of political theory and philosophy,

I am writing to seek your advice in an intellectual crisis. I write not because you are likely to be interested in my personal crisis, but because I have a feeling that the general question may interest you. I admit that these questions are dauntingly numerous and open-ended. I don't hope for any treatise as long as this email, maybe not even responses to each question, but only the comment(s) that initially come to mind and any discussions of this topic that you can point me toward.

I tend to think that my intellectual sympathies lie with political philosophers and (a bit more loosely) theorists rather than strict political scientists or policy analysts. The reason: I favor the more rigorous argumentation of the analytic philosophers. But after working this summer for a legal scholar who is a former journalist and by no means a philosopher - though with more theoretical coherence than most - I've heard the other side of the story, lawyers arguing before the Supreme Court who have no patience with philosophers who are unwilling to accept political realities and are altogether shunned by the legal practicing community. I've thus stumbled upon the questions below that I suppose are very common. Yet despite how common I imagine these to be, I am ever-stymied in my attempts to find professional discussions of these questions. I begin to fear that, occasional rosy-colored public statements aside, political philosophers write more for their colleagues and their own gratification than to produce any lasting change. I say this not as a critic, but as a concerned fan - for I, too, gain a great deal of insight and pleasure, if you will, from theoretical and philosophical debates. But I am still confused about the following questions:

1. Who is the audience of political philosophers? Most political and legal philosophers freely acknowledge that their work is ignored by practitioners of law. Sometimes they argue about the necessity of informing the public. But I doubt both that they have any enthusiasm for that proposal (I see very few journal authors churning out public pamphlets) nor that their ideas lend themselves easily to public digest. Yet I also do not see them often directing their arguments to policy-makers or the politically influential.

2. What do political theorists and philosophers hope to accomplish with their work? I know they seldom hope to solve the great questions they pose like Why is justice important?.

3. Given the profound importance of legal theory questions, why should we trust this class of thinkers to resolve them for us? Especially given that most arguments begin with certain theoretical premises - whether Rawlsian, consequentialist, etc - but authors of course refuse to pigeon-hole themselves into a school of thought so that members can easily grasp their arguments and non-members can easily reject them, this makes it very difficult to disaggregate the total work out there for the non-member of the philosophical community. Even deciding what one believes requires going article-by-article, deciding, if it meets our test for soundness of logic and argumentation, whether it appeals to our intuitions about what is right. If I plan to write as a legal theorist, how can I take myself seriously while realizing that most people will merely dismiss my argument based on its first premises? If in a pluralistic system we can never hope to base our entire theory of law on one (my) philosophy, why should we adopt it in this aspect? Cleary the reason I favor this approach is because it is the outgrowth of my fundamental principles. But there is a certain disingenuousness in arguing in persuasive dialogue that this is the best outcome for others who do not share my principles, based on outcomes alone.

4. Similarly, as a mere student and a fresh student of political philosophy, can I hope to add anything to the discussion early? The field seems to me to be one for the wise and experienced, mostly for older philosophers who have authority through credence. Certainly one say that . But if I do not come across as a prodigy - the contrary being almost 100% guaranteed - do you think that I can do anything that will be accepted? A mediocre chemistry professor can at least hash out the details of some new formula. But it's not clear to me that the same is true in philosophy because there is no "scientific method" to which you can appeal. It seems you must prove the soundness of your method before addressing the details, or no one will trust you. And therefore all the young people simply seem to be applying the philosophy of an established philosopher to a new question. But if I don't want to merely embrace some such philosopher blindly, must I just consign myself to a career writing about the specific texts of other thinkers, quoting others only?

Can a political theorist do respectable work in political philosophy, and likewise? The very fact that the debate between the disciplines is so stained with contempt, on both sides, suggests that the constructive nature in which they could engage is lost.

Sincere thanks,
Erin Miller

Moral progress: escaping mere intuition

Slavery seems objectively wrong. Why? Because it is disproportional: it harms people a lot for benefits that are not of similar magnitude. The reason we can say that it is categorically wrong, in any society, is because we cannot imagine a benefit that could offset the evil of wholly eliminating human freedom.

At first, this appears to require a consequentialist perspective: we must be willing to harm ourselves a bit and perhaps tradition a lot for the sake of the greater good. Say we throw self interest and tradition into the mix: we weight self interest more heavily and give the loss of tradition a negative utility because we think these create many unforeseen goods themselves. Then it still seems like the good of tradition can't possibly outweigh the harms of slavery. As to self interest, it seems that we can see the possibility of a substitution for achieving the same utility (in history, economic prosperity).

Part of what living in a society means is that there are certain conditions that we must avoid in pursuing our self interest. That means that we conceive of other, non-anti-social means of achieving those same goals. (at which point the separate question What is antisocial? becomes absolutely necessary to answer).) Let's grant that we prohibit only goals that are inherently anti-social - i.e., they have as their end the suffering of others, such as other-regarding preferences. But then what if society then prohibits means that are incidentally anti-social but that are the sole means of achieving someone's perfectly acceptable goal (see religious practices)?

But we cannot conceive of any way in which slavery is such a means. After all, the slave owners in the South were able to resurrect their economy after the Civil War with paid labor alone. Nor can we conceive of a way in which banning gay rights is such a means (unless someone really buys the argument that the social/moral fabric of the society will be tattered by this), because providing gay rights hasn't undermined Christians' ability to live their "good life" at all.

It appears that, by even a loose, all-pleasing consequentialism (or cost-benefit analysis, if you will), we cannot justify slavery. Thus the abolition of slavery is indeed moral progress.

Of course, every case cannot be a simple one like slavery. For this reason, I offer the following examples that are slightly more complicated: affirmative action, abortion (some might argue), surveillance of public areas, and euthanasia. This is because we do not see clear alternatives for achieving individual goals in these cases, and there are competing interests on both sides that seem far less imbalanced than in the slavery example (though I'm not arguing that I don't have an opinion on which interests in each case are more important).

Liberation from Social Kantianism

I've at last been liberated from the deontological ethical system from which, I think, suffering is widespread. Put simply, the most common version of this ethical system (from my observation) says that we should not do anything in public that creates a "stir" - except in very exceptional circumstances (so it's not quite absolutist).

My particular ailment was an ethics that wedded some rules of that ethics to a prohibition against doing acts in public or in private that would be contrary to my image of a wise, self-aware, modest, other-regarding scholar with a healthy sense of the contingency of his own beliefs. In other words, I had a virtue-ethics-like What Would My Scholar Do? test. I think this is a remnant of my unusual childhood idolization of intellectuals - before I had any understanding of them and their thought processes. Thus even my answers to my What Would My Scholar Do? test were probably wrong.

I was constantly plagued by the thought that I "should" or "shouldn't" do something, without any particular reason why this was the case except the command of experience or the graven image of my scholar. Upon a consequentialist education, one can easily rationalize both these systems: First, we don't want to create a "stir" because this would be an especially bad outcome (hurting many people). Second, I don't want to contradict the principles of scholarly life because this life is, after all, my aspiration (my end). And no single action can be more important than that ultimate end.

But the simple fact is that consequentialism is just more complicated than that.

Now I am free to think of my end freely, without a crowd of convenient means that are simply ruled out. For example, I can try to win a debate round without ruling out a million small ways of arguing - such as attacking an argument in a rhetorical manner, as well as an analytical manner, when I know that will be more persuasive. For example, I can inject my comments into a seminar discussion without worrying that I will distract or muddy the discussion. I just need to engage in order to learn - and hopefully, in the long term, do a little less muddying when I say my piece. I knew this a long time ago, but I saw some virtue in remaining principled, with high standards. Indeed, I distinctly remember Matt Wansley commenting to me my sophomore year: "I always admire that you're a principled person. Some of your principles are bit weird and irrational, but I like that you stick to them." I didn't like it then, and I don't like it now.

So I'm free to reject my irrational principles. I can, according to Shelly Kagan's description of rationality, reject the principles that are externally imposed on me (or imposed on me through faulty reasoning). This doesn't mean I can use any means, because very often there is a consequentialist reason for why a certain means just won't do. But I must be able to articulate that reason before I act on my mere impressions about virtue and creating a stir.

In short, I am liberated.

How Callous, Yeats

Complaining of those who yearn for luxury when you yourself already revel quietly in them. As though such desires properly preclude a man from more developed sentiments. Frankly, they may at times distract him from the fullest use of his finer sentiment. But the mere presence of these passions is no justification for dismissing the whole.

It will take a really good poem from Yeats to reconcile me again to the man who scorned the low-born poet John Keats with these words: “I see a schoolboy when I think of him, / With face and nose pressed to a sweet-shop window,” a boy “poor, ailing and ignorant, / Shut out from all the luxury of the world, / The coarse-bred son of a livery-stable keeper.”

The Merchant of Venice

Much as its title suggested economics, which I find tedious, "The Merchant of Venice" surprised me with its themes of law and justice, which I find enthralling. The mind of Shakespeare seems to have roved human affairs with inhuman breadth.

The layers of the justice discussion in TMV are many. On the superficial level, the main character Shylock embodies both vindictiveness and the letter of the law. He resists those who manipulate the law in order to receive lighter sentences for their wrongs. But the play comes to its reflective height during the courtroom scene, when the learned scholar brings mercy into the debate. The question then becomes: To what extent is mercy part of the law? And, to the extent that it is, can it annul other parts of the law, such as contracts?

I think most would agree that there are certain terms by which, inherently, a man cannot bind himself. In modern law, the term for this is "unconscionability": loans above a certain percent of interest are automatically null and void, regardless of the consent of the debtor. The assumption is that the debtor is not fully rational when he agrees, either because he has been economically (or otherwise) coerced or because he has not accurately weighed the costs to himself. Aristotle offers the classic example that a man cannot bind himself into slavery (though his rationality is autonomy). But modern unconscionability doctrine goes a step further: even if there is no irrationality or coercion in a particular case, the mere existence of such exploitive contracts is repugnant to a society as a whole.

Here is where the contract for a "pound of flesh" enters the scene. The contract was made on the irrational assumption that breach of contract was impossible, and therefore the punishment was irrelevant. But once the contract was made and then breached, Shylock contends that any failure to execute the contract-specificed punishment undermines law. But it seems evident before the court that the execution of such a grisly punishment by the law would be so horrific as to undermine the law more. Thus the interesting question is about what the law is - whether it is expected and legitimate rules of behavior, or whether it is the concrete rules enacted through legitimate processes.

Masterfully, the legal scholar calls upon Shylock to grant mercy, hoping that all he desires is deference. If she gives him ultimate power over Antonio's fate, he retains this power even by granting mercy; indeed, Antonio will then owe him a debt. But Shylock is not so simple-minded as the scholar believes: he wants "justice," not power. Yet the very attempt to compensate Shylock with this bit of power suggests some rightness of his claim. As in ethics, even if the rule can be violated, its violation demands compensation for the resulting victims.

But the fact pattern's complexity deepens further. When Shylock refuses to grant mercy, the scholar turns the tables 180 degrees: she accuses Shylock of attempted murder of Antonio (awkwardly, for trying to spill "Christian" blood) and grants Antonio control over his fate. By doing so, the scholar guarantees that an act of mercy rather than retribution will result. But this again seems to validate the claim of Shylock by skirting his punishment for it.

All told, The Merchant of Venice is captivating for how it deals with contracts, vows, and other such legal phenomena. Later vows about a ring are sacrificed when the circumstances press - and the lady of justice again grants a reprieve. The lesson here seems to be analogous to the classical ethical argument that promises carry implicit conditions (such as unconscionability or force majeure).

The play is also hard-core feminist, which helps... The legal scholar who saves the day is actually a woman, Portia, in disguise.

Why integration doesn't (quite) make sense

First, how far do we integrate? To reflect the demographics of the community? If so, how do we define the community? As the neighborhood? The city limits? The county? The crowd of people whom a child is likely to encounter? Each one of these often yields a very different figure. And then, why is the white suburban child of Mississippi better off with integration while the white rural child of Wyoming is left in his uniracial isolation, hundreds of miles from the nearest sizable minority population?

Second, how does one combat white flight? If school board policies force a child into a school that his parents dislike, many parents yank their children from the school. White flight is, in one iteration, more forgivable: you cannot expect parents to be willing to sacrifice something as crucial as their child's entire early-life training for an obscure societal - goal - especially a seemingly statistical one - like integration. This is the "education quality" iteration. It can be solved by exogenous means. However, in another iteration, white flight seems quite reactionary: when a child is thrown from a situation of racial majority to one of racial minority, many parents turn tail and run. Indeed, it can be very uncomfortable to be amongst a race that one is not used to. But this iteration is much harder to solve.

What is fascinating about integration in education is just how pivotal it is for many children's lives. The recent court decision essentially - though not deliberately - denied an equal education to many minority students. The reasoning is that it is better to tolerate systematic disadvantages of many students (though students of a single race - this is important), so long as they may be legally escaped, than to inescapably disadvantage individual students. What makes the disadvantage inescapable is its basis in race, a factor that is no fault of the individual. But so long as school districts may consider race as one of many factors, or proxy in some other (still arbitrary) factor like residential location, individuals will still be inescapably disadvantaged arbitrarily (i.e., by no fault of their own) - though not directly by labeling them by race. Therefore the ruling may effectively eliminate the effective opportunity of children of a minority race to achieve an equal education, in order to reduce the likelihood that a white child will too - but explicitly because of race.

So it seems like there is something naggingly wrong with holding little white poor children responsible for the racist attitudes of their community. However, is there a better way? How do we hold a community responsible for segregation, if it is indirect and through public opinion? We must correct the inferior opportunities that are caused by undue, de facto racial segregation. And schools are the front on which the segregation in others areas of public life does the most damage - by entrenching, in an era when education minimums for employment are rising, disadvantages in other areas.

Can we simply dismiss and leave for dead integration, when the natural trend seems obviously toward resegregation? It seems to take government integration to start the dominoes toward a result that everyone, in theory, seems to favor. Very few parents in 2008 actively want to exclude black children from their schools. But they just don't want to undergo the costs of experimentation and transition.

I can't say I know the answer to any of these questions, but I do know that mandatory, individualized categorization by race does seem to leave a bad taste in the mouths of many. Perhaps Justice Kennedy's opinion is less incoherent than I originally thought.

Culmination of Detainee Thoughts IV: BW's Tone

I think the one thing that really needles liberals about Ben is that he is conservative, but one more educated in civil discourse. In other words, he has an agenda to defend the administration and reduce the threat of terrorism, not necessarily with maximal concern for individual rights, but he does recognize a need to accommodate the views of others who reasonably do value individual rights foremost and distrust the executive. Nonetheless, the tone makes all the difference.

Ben is, without doubt, a superb rhetoric-breaker. He masterfully calls out hypocrisy and shrillness, partisanship and chumminess. Yet he addresses his rhetoric-breaking to the scholarly crowd. And, at the end of the day, the scholars just blink and say, "Yes, we agree. We're not the ones spewing the rhetoric." Sure, they may use the slogans, but that's not actually what they think. And the only concrete reason (all aesthetics aside) to break rhetoric is to halt belief in it.

Labeling our own politics

When we identify ourselves as "liberal" or "conservative" to others before they have a chance to observe it in us ourselves, what is our purpose? When the others are of like politics, do we want to associate ourselves with a community? When the others are of opposite politics, do we want to gloss over differences without getting into the gritty details? Either way, I was struck by the way that Ben Wittes, a pragmatic thinker, tends to look down his nose at such self-identification, apparently seeing it as simplification of our views.

Yet I've realized that the reason I self-identify is in order to qualify some of the more pragmatic statements that I make, in order to fend off snap judgments by the more reactive of liberals. This alert gives them a heads-up that, in total, I have reached a different conclusion than my immediate judgment might suggest. Yet even this seems to be an attempt to evade dirty details-debates or not to lose their camaraderie...

Does anyone really know what these labels mean, beyond vague association with certain noted persons and policies? Is there any real consistency implied by "I am liberal"? (At least according to Bryan Garner, the Republicans are winning the popular battle because they are able to describe their values in two-word catch-phrases that are just concrete enough to attract constituents but not concrete enough to alienate them once they are drawn in.) I often find that the liberal or conservative position simply boils down to some basic rhetoric and to the convenience of the moment. It is liberal to oppose gun rights against state force, but to support defendant rights against state prosecutors? It is conservative to vehemently oppose abortions - any sacrifice of opportunity for life - but to support schemes that might deny certain poor kids opportunities in life? "Liberalism" and "conservatism" seems, in its haste to cut men into two groups alone, to set up rigid positions on everything from individual rights against the collective to tradition in general to economics - in ways that are not necessarily logically consistent (as civil libertarians, especially, have found).

Just try asking someone, What does it mean to be liberal?

[Digression warning: I don't quite understand, except for the vague suggestion that conservatives favor the small and localized (including individual initiative and goals) while preferring continuity with the past on a large, structural level. Essentially, these individuals advocate showing respect to society by obeying traditional rules, but stretching those rules in every possible way - and openly - in order to achieve one's self interests. They oppose any attempt for society to define what ends you should work for, or to compare you in substance with others; or of any attempt to craft "ideal" social rules that are unpredictable and based on any "collective" or abstract goals.]

In short, our partisan association seems an easy way to divide ourselves into clean camps, while evading the - sometimes significant - differences between our views and those of the larger camp. We seem to derive great pleasure from ideological company.

Or is there something about these base issues that make them fundamental to the human experience? After all, it seems that conservatives tend to prefer certain types of social services, while liberals prefer others. As a recent article in The Economist explains, Americans now are now dividing geographically along partisan lines. Truth be told, I would prefer to live in a liberal community, and this seems to be based on very real personal discomfort that I feel around conservatives.

But while this may be relevant to our personal feelings, partisan identification is not useful in discussing compromise policy options. I would argue that we should avoid wearing our politics on our sleeves at all - it's unclear when this knowledge will actually aid a conversation or relationship. It's better to just work out the gritty details.