After months in which university after university signed on to the bandwagon for Massive Open Online Courses called MOOCs, the battle over the future of education has finally begun. This week Duke University pulled out of EdX, the Harvard/MIT led consortium of Massive Open Online Courses called MOOC’s.
The reason: Its faculty rebelled. According to The New York Times,
While [Duke provost Peter] Lange saw the consortium as expanding the courses available to Duke students, some faculty members worried that the long-term effect might be for the university to offer fewer courses — and hire fewer professors. Others said there had been inadequate consultation with the faculty.
The Times also reports that faculty at Amherst College, my alma mater and former employer, voted against joining EdX. Again, the faculty saw danger. My former colleagues worried that the introduction of online courses would detrimentally impact the quality and spirit of education and the small liberal arts college. They also, as our friends over at ViaMeadia report, worried that MOOCs would “take student tuition dollars away from so-called middle-tier and lower-tier” schools, pushing their colleagues at these institutions out of their jobs.
And that brings us to ground zero of the battle between the faculty and the MOOCs: San Jose State University. San Jose State has jumped out as a leader in the use of blended online and offline courses. Mohammad H. Qayoumi, the university's president, has defended his embrace of online curricula on both educational and financial grounds. He points to one course, "Circuits & Electronics," offered by EdX. In a pilot program, students in that course did better than students in similar real-world courses taught by San Jose State professors. Where nearly 40% of San Jose students taking their traditional course received a C or lower, only 9% of students taking the EdX course did. For Qayoumi and others, such studies offer compelling grounds for integrating MOOCs into the curriculum. The buzzword is “blended courses,” in which the MOOCs are used in conjunction with faculty tutors. In this “flipped classroom,” the old model in which students listen to lectures in lecture halls and then do assignments at home, is replaced by online lectures supplemented by discussions and exercises done in class with professors. As I have written, such a model can be pedagogically powerful, if done right.
But as attractive as MOOCs may be, they carry with them real dangers. And these dangers emerge front and center in the hard-hitting Open Letter that the philosophy department at San Jose State University has published addressed to Michael Sandel. Sandel is the Harvard Professor famous for his popular and excellent course “Justice,” that has been wowing and provoking Harvard undergraduates for decades. Sandel not only teaches his course, he has branded it. He sells videos of the course; he published a book called Justice based on the course, and, most recently, created an online video version of the course for EdX. San Jose State recently became one of the first public universities in the country to sign a contract paying for the use of EdX courses. This is what led to the letter from the philosophers.
The letter begins by laying out the clear issue. The San Jose Philosophy department has professors who can teach courses in justice and ethics of the kind Sandel teaches. From their point of view, “There is no pedagogical problem in our department that JusticeX solves, nor do we have a shortage of faculty capable of teaching our equivalent course.” In short, while some students may prefer a course with a famous Harvard professor, the faculty at San Jose State believe that they are qualified to teach about Justice.
Given their qualifications, the philosophy professors conclude that the real reason for the contract with EdX is not increased educational value, but simply cost. As they write: "We believe that long-term financial considerations motivate the call for massively open online courses (MOOCs) at public universities such as ours.
In short, the faculty sees the writing on the wall. Whatever boilerplate rhetoric about blended courses and educational benefit may be fashionable and necessary, the real issue is simple. Public universities (and many private ones as well) will not keep paying the salaries of professors when those professors are not needed.
While for now professors are kept on to teach courses in a blended classroom, there will soon be need for many fewer professors. As students take Professor Sandel’s class at universities around the country, they will eventually work with teaching assistants—just as students do at Harvard, where Professor Sandel has pitifully little interaction with his hundreds of students in every class. These teaching assistants make little money, significantly less than a tenured or even a non-tenured professor. It is only a matter of time before many university classes are taught virtually by superstar professors assisted by armies of low-paid onsite assistants. State universities will then be able to educate significantly more students at a fraction of the current cost. For many students this will be a great boon—a certified and possibly quality education at a cheap price. For most California voters, this is a good deal. But it is precisely what the faculty at San Jose State fear. As they write:
We believe the purchasing of online and blended courses is not driven by concerns about pedagogy, but by an effort to restructure the U.S. university system in general, and our own California State University system in particular. If the concern were pedagogically motivated, we would expect faculty to be consulted and to monitor quality control. On the other hand, when change is financially driven and involves a compromise of quality it is done quickly, without consulting faculty or curriculum committees, and behind closed doors. This is essentially what happened with SJSU's contract with edX. At a press conference (April 10, 2013 at SJSU) announcing the signing of the contract with edX, California Lieutenant Governor Gavin Newsom acknowledged as much: "The old education financing model, frankly, is no longer sustainable." This is the crux of the problem. It is time to stop masking the real issue of MOOCs and blended courses behind empty rhetoric about a new generation and a new world. The purchasing of MOOCs and blended courses from outside vendors is the first step toward restructuring the CSU.
The San Jose State philosophy professors are undoubtedly correct. We are facing a systematic transformation in higher education in this country and also in secondary education as well. Just as the Internet has revolutionized journalism and just as it is now shaking the foundations of medicine and law, the Internet will not leave education alone. Change seems nigh. Part of this change is being driven by cost. Some of it is also being driven by the failures and perceived failures of our current system. The question for those of us in the world of higher education is whether we can respond intelligently to save the good and change out the bad. It is time that faculties around the country focus on this question and for that we should all be thankful to the philosophy professors at San Jose State.
The Open Letter offers three main points to argue that it is bad pedagogy to replace them with the blended course model of MOOCs and teaching assistants.
First, they argue that good teaching requires professors engaged in research. When professors are engaged in active research programs, they are interested in and motivated by their fields. Students can perceive if a professor is bored with a class and students will always learn more and be driven to study and excel by professors who feel that their work matters. Some may wonder what the use of research is that is read by only a few colleagues around the world, but one answer is that such research is necessary to keep professors fresh and sharp. We all know the sad fate of professors who have disengaged from research.
Second, the philosophy professors accept the argument of many including myself that large lectures are not the best way to teach. They teach by the Socratic method, interacting with students. Such classes, they write, are much better than having students watch Professor Sandel engage Socratically with faculty at Harvard. Of course, the MOOC model would still allow for Socratic and personal engagement, just by much lower paid purveyors of the craft. The unanswered question is whether low-paid assistants can be trained to teach well. The answer may well be yes.
Third, the philosophy faculty worry about the exact same moral justice course being taught across the country. We can already see the disciplinary barricades being drawn. It may be one thing to teach Math to the whole country from one or two MOOCs, but philosophy needs multiple perspectives. But how many? The philosophy professors suggest that their highly diverse and often lower-middle-class students have different experiences and references than do Professor Sandel’s Harvard students. They can, in the classroom, better connect with these students than Professor Sandel via online lectures.
The points the San Jose State philosophy professors raise are important. In many ways, however, their letter misses the point. Our educational system is now structured on a few questionable premises. First, that everyone who attends college wants a liberal arts education. That is simply not true. Many students simply want a credential to get a job. If these students can be taught well and more cheaply, we should help them. There is a question of whether we need to offer everyone the same kind of highly personalized and expensive education. While such arguments will be lambasted as elitist, it is nevertheless true that not everyone wants or needs to read Kant closely. We should seek to protect the ability of those who do—no matter their economic class—and also allow those who don’t a more efficient path through school.
A second questionable premise is that specialization is necessary to be a good teacher. This also is false. Too much specialization removes one from the world of common sense. As I have argued before, we need professors who are educated more generally. It is important to learn about Shakespeare and Aristotle, but you don’t need to be a specialist in Shakespeare or Aristotle to teach them well and thoughtfully to undergraduates. This is not an argument against the Ph.D. It is important to study and learn an intellectual tradition if you are going to teach. But it is an argument against the professionalization of the Ph.D. and of graduate education in general. It is also an argument against the dominance of undergraduate curriculum by professionalized scholars.
Third, and perhaps most importantly, is the premise that everyone needs to go to college. If we put a fraction of the resources we currently spend on remedial education for college students back into public high schools in this country, we could begin the process of transforming high school into a serious and meaningful activity. For one thing, we could begin employing Ph.D.s as high school teachers as are many of the emerging early colleges opening around the country.
I am sympathetic to the philosophy professors at San Jose State. I too teach a course on Justice called “The Foundation of Law: The Quest for Justice.” It is a course quite similar and yet meaningfully different from Michael Sandel’s course on Justice. I believe it is better, no offense meant. And I would be upset if I were told next year that instead of teaching my course I would be in effect a glorified TA for Professor Sandel. I hope it doesn’t come to that, but I know it might.
The only response for those whose jobs are being replaced by computers or the Internet is to go out and figure out how to do it better. That is what happened to journalists who were fired in droves. Many quit voluntarily and began developing new models of journalism, including blogs that have enriched our public discourse and largely rejuvenated public journalism in this country. Blogs, of course, are not perfect, and there is the question of how to make a living writing one. But enterprising bloggers like Andrew Sullivan and Walter Russell Mead are figuring that out. So too are professors like Michael Sandel and Andrew Ng.
We need educators to become experimental these days, to create small schools and intensive curricula within larger institutions that make the most of the personal interaction that is the core of true pedagogy. If that happens, and if teachers offer meaningful education for which students or our taxpayers will pay, then our jobs will be safe. And our students will be better for it. For this reason, we should welcome the technology as a push to make ourselves better teachers.
The Open Letter to Michael Sandel deserves a response. I hope Professor Sandel offers one. Until then, I recommend that this beautiful Spring weekend you read the letter from the San Jose State Philosophy Department. It is your weekend read.
Power is actualized only where word and deed have not parted company, where words are not empty and deeds not brutal, where words are not used to veil intentions but to disclose realities, and where deeds are not used to violate and destroy but to establish relations and create new realities.
-Hannah Arendt, The Human Condition
Arendt’s conception of power is one of the most subtle and elusive features of her political theory. Here Arendt poses the problem of power in terms of power’s loss, of powerlessness, which is also what she calls “the death of political communities.”
What is powerlessness? What, exactly, is lost when power is lost?
There are many ways to become powerless in the world of twenty-first century politics. In the United States we often imagine that citizens would be powerless without their constitutional rights – the vote, free speech, due process. In and around the world’s many war zones, the loss of military protection seems to produce a very different kind of powerlessness, one that is linked to both our physical vulnerability to violence as human beings and the persistence of violence between sovereign states (and within them.) There is also the powerlessness that seems to follow from the dislocations or migrations of peoples, a condition that Arendt calls mass homelessness, which may come from the movement of peoples across borders or the redrawing of borders across peoples. Poverty appears to be another form of powerlessness altogether, one that disrupts our capacity to appropriate nonhuman nature through labor and work and thereby sustain our lives. Arendt argues that mass destitution, alongside mass homelessness, is a form of powerlessness that is peculiar to the political condition of the modern age.
Many other kinds of powerlessness can be added to this list. The list is disturbing not only for its variety and length, but also because the felt urgency of each danger invites us to elevate one or two above the others, so that we risk settling for powerlessness of several kinds in order to secure power in one or two “emergency” domains. We choose between the power of kill lists and drone strikes and the power of due process for Americans accused of terrorism. We weigh our powerlessness in the face of global warming against the powerlessness caused by the Great Recession, where the hoped-for “recovery” will be defined by consumption-led “growth,” rendered tangible by lower gas prices and more crowded shopping malls. Or, we may think that US power in the globalizing world of free trade and faster capital flows is dependent upon “securing our national borders,” achieved through the quasi-militarization of immigration enforcement. Hard choices are the stuff of politics - they are supposed to be what power is all about - but the dilemmas of modern powerlessness are peculiarly wrenching in large part because they are not readily negotiable by political action, by those practices of public creativity and initiative that are uniquely capable of redefining what is possible in the common world. Rather, these “choices” and others like them seem more like dead-ends, tired old traps that mark the growing powerlessness of politics itself.
The death of the body politic, which can only occur by way of the powerlessness of politics itself, is Arendt’s main concern in the above quote. In contrast to Hobbes, Rousseau, Weber, and Habermas, among others, Arendt distinguishes power from domination, strength, rationality, propaganda, and violence. Located within the open and common world of human speech and action, power reveals its ethical and political limits when it is overcome by deception, empty words, destruction, and “brutality.” Rooted in the human conditions of natality and plurality, and constituted by the gathered actions of many in a public space of appearance, power exists only in its actualization through speech and deed. Like action, power depends upon the public self-disclosure of actors in historical time. Actors acting together with other actors generate power. Yet because we do not know “who” we disclose ourselves to be in the course of collective action, or what the effects of our actions will turn out to mean in the web of human stories, power itself is always “boundless and unpredictable,” which in part explains its peculiar force. Given its boundlessness and unpredictability, power cannot be stored up for emergencies, like weapons or food and water, nor kept in place through fixed territories, as with national sovereignty. Power therefore co-exists only uneasily with machpolitik. Power can overcome violence and strength through the gathered voices and acts of the many; it can also be destroyed (but not replaced) through the dispersal of the many and the dissolution of the space of appearance. In-between gathering and dispersal, power is preserved through what Arendt calls “organization,” the laws, traditions, habits, and institutions that sustain the space of appearance during those interims when actors disperse temporarily and withdraw back into the private realm, only to reappear later.
For Arendt, the loss of power is the loss of our capacity to act with others in a way that generates, sustains, and discloses a common world. Powerlessness is marked by the receding of public spaces. This may occur, for example, through the gentle decline of a formally constituted public realm into the technocratic shadows of the social, or through the brutal sovereign repression of spontaneously emergent spaces of appearance. In both cases, our ethical and political incapacities to act together, and the philosophical inability to recognize power when we see it, are at the root of modern political powerlessness. Power-seekers, on Arendt’s view, would be well advised to cultivate a deeper political appreciation for both the immaterial force and fragility of human natality, plurality, and public space, which will be lost when power is mistaken for its rivals, like reason, strength, violence, or sovereignty.
Hannah Arendt spoke of having acquired, through her life, a "love of the world." When writing about education she argues that "education is the point at which we decide whether we love the world enough to assume responsibility for it." And in politics, she insists, we must care for and love the world more than oneself. What then is the world?
The world is related to human making and to the things and artifacts that human beings make. What defines the things of a world is that those things gather individuals together.
In the public realm, a politician is that person who speaks and acts in such a way that those around him come to see those institutions and values that they share and treasure. The common world is the world that emerges when a plurality of people bind themselves to stories, traditions, institutions, rituals, and practices that they share and that they love. Like a table that unites those who sit around it in a common conversation or feast, the common world brings different people together. It stands between them, both joining and separating them.
In the private realm, a world is founded in property, and property has an essential role in the public realm too. For property is what one owns, what is proper to one, and thus defines one over against others in the common world. Property provides the boundaries between people and also serves as the boundary between the commonality of the public realm and the uniqueness of the private realm. It is no accident that original Greek word for law, nemein, also means to distribute and to possess, as well as to dwell. Property, in English, also names the laws of propriety, what is right and given to each.
In both the public and the private realms the world consists of things that endure. Worldly things must not only be common. They must also last. Since we must love the world more than our own lives—since we must be willing to pursue the world as an ideal and sacrifice ourselves to the glory and good of the world we share with others—the world must offer us the promise of permanence and thus immortality.
How are to understand the worldly conditions of permanence and immortality? We might ask: What is a house?
This is one of the many questions at issue in Jonathan Franzen's essay "House For Sale," about his return to his mother's house in Webster Grove, Missouri to sell the house after her death. Here is how Franzen describes his mother's house.
This was the house where, five days a month for ten month, while my brothers and I were going about our coastal lives, she had come home alone from chemotherapy and crawled into bed. The house from which, a year after that, in early June, she had called me in New York and said she was returning to the hospital for more exploratory surgery, and then had broken down in tears and apologized for being such a disappointment to everyone and giving us more bad news. The house where, a week after her surgeon had shaken his head bitterly and sewn her abdomen back up, she'd grilled her most trusted daughter-in-law on the idea of the afterlife, and my sister-in-law had confessed that, in point of sheer logistics, the idea seemed to her pretty far-fetched, and my mother, agreeing with her, had then, as it were, put a check beside the item "Decide about the afterlife" and continued down her to-do list in her usual pragmatic way, addressing other tasks that her decision had rendered more urgent than ever, such as "Invite best friends over one by one and say goodbye to them forever." This was the house from which, on a Saturday morning in July, my brother Bob had driven her to her hairdresser, who was Vietnamese and affordable and who greeted her with the words "Oh, Mrs. Fran, Mrs. Fan, you look terrible," and to which she'd returned, an hour later, to complete her makeover, because she was spending long-hoarded frequent-flyer miles on two first-class tickets, and first-class travel was an occasion for looking her best, which also translated into feeling her best; she came down from her bedroom dressed for first class, said goodbye to her sister, who had traveled from New York to ensure that the house would not be empty when my mother walked away from it—that someone would be left behind—and then went to the airport with my brother and flew to the Pacific Northwest for the rest of her life. Her house, being a house, was enough slower in its dying to be a zone of comfort to my mother, who needed something larger than herself to hold on to but didn't believe in supernatural beings. Her home was the heavy (but not infinitely heavy) and sturdy (but not everlasting) God that she'd loved and served and been sustained by, and my aunt had done a very smart thing by coming when she did.
Franzen offers us a house in many valences.
It was where his mother lived. Where she was sick. Where she thought about dying and God. Where she recovered from surgery and made herself up. Above all, it was his mother's house. Later he writes that the house was "my mother's novel, the concrete story she told about herself." In this house she "pondered the arrangement of paintings on a wall like a writer pondering commas." It was a house in which she showed herself. It was thus an invitation. And "she wanted you to want to stay."
The problem is that Franzen does not want to stay in his mother's house. He grew up in the house, but he resents it. The house his mother made, was filled with "sturdy and well made" furniture that "my brothers and I couldn't make ourselves want." He has fled the house and returns only to remove those photos that for his mother made the house hers, to act like a conqueror, he admits, and repossess the house from his mother. But only to then sell it.
If Mrs. Fanzen's house is her novel and if it was a house in which she both concealed and showed herself, her son's house in NYC is something else entirely. Here is how Franzen describes his own dwelling place:
I now owned a nice apartment on East Eighty-first Street. Walking in the door, after two months in California, I had the sensation of walking into somebody else's apartment. The guy who lived here was apparently a prosperous middle-aged Manhattanite with the sort of life I'd spent my thirties envying from afar, vaguely disdaining, and finally being defeated in my attempts to imagine my way into. How odd that I now had the keys to this guy's apartment.
House for sale is, amongst other themes like the loss of religion, the loss of family, and the loss of the American middle class, about the loss of the American house. It is also therefore, in an Arendtian vein, a story about the loss of our world, the property that both hides and nurtures our souls and separates and distinguishes us from our fellow citizens. Denuded of our habitus and property, we are defenseless against the conformity of society. Without desks and bookshelves passed down over generations that fit us, over and against our choices, into a private world, we are consumers who build a temporary bulwark whether styled by Ikea or the local antique store. Such a house is not meant to last and to be passed down across the generations. It will be used and, eventually, sold or walked away from. With nothing that defines us in a lasting and immortal vein, our lives have no depth or meaning beyond our accomplishments. There is no weight or law that claims us and obligates. We are free, but free, unsure why we are here or what it all means.
I recently encountered Jonathan Franzen's essay within an extraordinary theatrical experience. The play "House For Sale" is based on his essay by the same name.
It has been adapted for the stage by Daniel Fish. I have now been to see it twice. The play is hilarious, brutal, and shattering. It makes Franzen's essay come alive in ways miraculous and uplifting. The final scene itself is worth dropping every plan you have, flying to NYC, and rushing to the Duke Theatre on 42nd St. to catch it. I can't recommend this highly enough. But hurry, it is playing for only a few more performances. You can buy tickets here.
Or, if you simply can't get to NYC, buy The Discomfort Zone, Franzen's book of essays in which "House For Sale" originally appeared. It is your weekend read.
“The highest laws of the land (America) are not only the constitution and constitutional laws, but also contracts.”
-Hannah Arendt, Denktagebuch, p. 131
Having published The Origins of Totalitarianism, Arendt turned her attention to the country around her. In a sequence of entries in her Denktagebuch for September 1951, she starts by referring to America as “the politically new” – these are thoughts that will eventually result in her argument in On Revolution . Her analysis has often been criticized from an historical point of view, especially as she refers to the Constitution as being the first to be established “without force, without ruling (archein) and being ruled (archesthai). “ Whatever the validity of these criticisms, they strike me as missing an essential point of her concerns. Arendt is trying to work out what she a few pages later calls “the central question of the coming (künftigen) politics,” a problem she sees as lodged in “the problem of the giving of laws.” (ibid, 141). Her aim is to describe a political (i.e. humanly appropriate) system that would not rest upon will and in particular on the will of the sovereign. “That I must have power (Macht) to be able to will, makes the problem of power into the central political fact of all politics that are grounded on sovereignty – all, that is, with the exception of the American.” (idem)
Her concern in these pages (130-143) centers around what a human society would be that was truly political. Her version of America is her entry into this question. What is striking about her discussion in the intervening (and other) pages is that she approaches this question explicitly through the lens of European philosophy. Thus she is attempting an answer to the question of “can we determine the particular excellence of the American polity by viewing it through the lenses of European thought?” The point is not to Europeanize America: it is to see if America does not in some manner constitute a potential instantiation of what has been thought in Europe over the nineteenth and twentieth centuries.
The sequence of European thinkers she invokes is important. She first mentions Marx and then Nietzsche, each of whom she sees as part of and as makers of the “end of Western philosophy.” Marx is held to have inverted Hegel, Nietzsche the same for Plato. The point of her analysis of Marx and Nietzsche is to assert that they released thought from its bond to the “Absolute.” Indeed: to hold to the idea of an Absolute is to “make possible in the present unjust and bestial behavior.” (ibid, 133). As we know, this will be an ever-returning theme in her work. She expects to find in America the elements of the political that does not rest on an “absolute.”
At what might one look to find this vision of a non-absolute political? Nietzsche provides the opening to an answer. We are to look not to his doctrine of the revaluation of values but to his discussion of promising in the second essay of the Genealogy of Morals. She quotes: “To breed an animal with the right to make promises – is that not … the real problem of humans?” For Arendt, the foundation of a new “morality” lies in the right to make a promise; the promise makes possible human relations based on contract. And the grounding on contract, as she writes in the Denktagebuch, was for her the particular excellence of the American polity.
What is the implication of Arendt's claim that contract is the “highest law” and particular excellence of America? One answer is revealed by the end of extended quotation of Nietzsche’s Genealogy of Morals where he indicates that the person who has the right to make promises can “ für sich als Zukunft gut sagen zu können,”a phrase that might be rendered as “able to give himself as answer for the future.” In Arendt’s gloss, this means that if in making a contract (which is what a promise is) one pledges that each will remain true to him-or herself as the person making the contract, then each has made his or her own being the foundation for a political space.
Such a grounding or foundation is not based either on will or on any external absolute. It is a matter, as the signers of the Declaration made clear, that we “mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” Temporally speaking, this means that what one did in the past remains alive as the present. Our political present will thereby be tied to the historical, although not, she notes, in a “weltgeschichtliche” [world-historical: i.e. transcendental] manner.
To make the implications of this clearer, she immediately turns to a consideration of Max Weber’s distinction between the “ethic of responsibility” (which she holds to be the foundation of the pragmatism and genius of American politics) as opposed to the “ethic of conviction,” which, she says, allows for anything as we cannot know “until the day of the Last Judgment” if our conviction be correct. The implication here is that if we base our polity on the conviction of the supposed correctness of our moral judgments (as opposed to our ability to be responsible to ourselves) we will be able to justify anything, as the validation for our claim can be infinitely postponed. (One has but to look at the claims made about bringing democracy to Iraq). Indeed, Arendt sees “central question of our time” to be a change in our ability to make valid moral judgments, that is ones the correctness of which is not postponed indefinitely. (ibid 138). She now turns to an examination of how various thinkers have dealt with the problem of moral judgment. After she worked her way through a partial rejection of the manners in which Hegel, Nietzsche, and the Kant of the Critique of Practical Reason respond to this main question, she turns to the Critique of the Power of Judgment. Those thoughts are not developed at this time in the Denktagebuch -- but they will concern her for the rest of her life.
What is striking here is how the approach from European philosophy brings out the importance of what is new in the American experiment. As Hamilton wrote in the first Federalist:
It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.
To which, in our present day, one may only wonder if at some point a “wrong election“ has not been made.
-Tracy B. Strong (UCSD)
The Wall Street Journal, The New York times, and Guernica—it seems everyone is excoriating John Roberts' opinion upholding the health insurance mandate in the Affordable Care Act. The WSJ calls the precedent Roberts set "grim." The Journal, in another editorial, writes that Roberts' decision is "is far more dangerous, and far more political, even than it first appeared last week." Roberts has, the WSJ argues, substituted "one unconstitutional expansion of government power [the commerce clause] for another [the taxing power]," and, in doing so, rearranged "the constitutional architecture of the U.S. political system."
In Guernica, Ciara Torres-Spelliscy, argues that "Closer inspection of the actual written opinion shows Roberts gave those who want to hem in Congress’s power everything they wanted." Torres-Spelliscy agrees with the WSJ that, in her words, Roberts "provided the blueprint for a radical rebalancing of powers among the three branches." But while the WSJ thinks Roberts is expanding governmental power, Torres-Spelliscy argues he is radically constricting it.
What both sides in this debate get right is that Roberts' opinion is deeply important and that it will likely change the way that the U.S. Federal Government interacts with citizens. That said, for those concerned with freedom within a constitutional government, as was Hannah Arendt, Roberts' opinion offers much to be excited about. It deserves greater and more serious consideration than it has so far been given.
Roberts' opinion begins with an eminently sensible manifesto for judicial restraint. Like his hero Oliver Wendell Holmes Jr., Roberts believes the Court should defer to Congress except in those cases where the legislation cannot be squared with the Constitution. The devil is always in the details of such a squaring, but at a time of ideological posturing, Roberts' opinion is a welcome read:
Our permissive reading of [Congress' enumerated powers] is explained in part by a general reticence to invalidate the acts of the Nation's elected leaders. "Proper respect for a co-ordinate branch of the government" requires that we strike down an Act of Congress only if "the lack of constitutional authority to pass [the] act in question is clearly demonstrated." Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgment. those decision are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
Whatever one thinks of Roberts' actual legal opinion, the statesmanship he evinces is welcome. In the most politically sensitive case since Bush v. Gore, Roberts defused a potential explosion threatening to undermine the Supreme Court's legitimacy. As the Arendt Center's Bard colleague Walter Russell Mead writes, "in form and execution this was a decision that will reinforce the Court’s position in the country while, so far as I can see, avoiding the possibility of harm based on the faulty constitutional theories that the health care law’s backers put forward." The introductory pages of the Roberts opinion offer a balanced and at times inspired primer in Constitutional interpretation and U.S. Constitutional history.
Beyond the near pitch-perfect tone, Roberts' opinion offers much to be thankful for. It is one of the most legally important opinion the Court has handed down in decades. It seems worth making a few points.
1. Many have derided Roberts for considering the mandate payment a tax when the legislation called it penalty. Let's give him credit for speaking frankly. It really was a tax. The Congress simply didn't want to call it a tax for political reasons. The mandate is a payment required to be made to the Treasury, collected by the IRS, with no Criminal or Social Stigma of wrongdoing attached to it. Roberts did not have to call it a tax, but he did so on the principle of judicial restraint, interpreting the statute in a way most likely to maintain its constitutionality. That is the role of a Supreme Court in a constitutional republic.
The distinction Roberts employs to call the mandate a tax makes total sense. He says that a payment is a penalty when non-payment is considered a wrong. If you speed and pay a ticket, you have committed a misdemeanor. That is a penalty, not a tax. But when the payment is simply made without any claim that the action generating the payment is wrong, that is a tax. So, if you purchase cigarettes or a speed boat, you pay a special tax. It is your choice.
In the case of the mandate, the Affordable Care Act says that if you don't purchase insurance, you pay a certain amount to the treasury. That amount is less than you would normally pay for insurance in many circumstances. Thus the legislation expects and imagines people for whom the payment is lower than purchasing insurance to actually pay the payment rather than purchase insurance. This is evidence for Roberts that there is no stigma associated with the payment and that it really is functioning as a tax rather than as a penalty. There is no sense of a wrong. Despite what Congress said for political purposes, Roberts is on good grounds to call the mandate payment a tax.
2. Roberts blazes a new path on which the federal government can continue to regulate the actions of citizens. The Congress must now increasingly justify its regulatory initiatives by appeal to the power to tax rather than the power to regulate commerce. While this may seem merely a semantic distinction, it is not a meaningless difference. And this is the heart of the real importance of Roberts' opinion.
If the mandate payment had been upheld under the commerce clause (as Justice Ginsburg's dissent advocated), then the government would have been permitted to do anything it wanted or needed to do in order to achieve its ends of creating a health care system. For example, Congress could have simply required people to purchase health care. You may think that is what Congress did. But according to Roberts, such a requirement is no longer constitutional. Instead, what the Congress did was say: "You have a choice. You can buy health insurance or you can forego buying health insurance and pay a tax to support the health insurance market."
What is the difference? Under the commerce clause, the government can tell you what to do (buy insurance) and it can punish you if you do not do so. Under the taxing power, all the government can do is require people to pay money into the treasury. This is not a meaningless difference.
While the power to tax can be terrible and the power to tax is also in certain cases the power to destroy, this is not usually the case. When taxes are reasonable and not destructive, an individual charged with buying insurance or paying a tax can always choose to pay the tax and not buy insurance.
This is the emancipatory thrust of Roberts' opinion. By shifting the Congressional authorization from Commerce to Taxation, he has struck a surprising balance between freedom and the government's power to influence behavior. On the one hand, it is now significantly harder to justify congressional authority over individuals that will compel them to act in a certain way. On the other hand, Congress can pursue its ends by taxation rather than by regulation.
3. To make it clear just what it is that Roberts allowed, he offers an example that I think is helpful.
Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,” a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.”
Roberts is right here. The real reason to like his opinion is that by shifting the authorization from commerce to taxation, Roberts affirms the federal government's right to influence behavior but weakens the federal government's authority to compel citizen behavior. His argument is that it is more consistent with federal limits and the protection of freedom to allow the government to tax us then to regulate us.
There are still many unanswered questions here. It is unclear how impactful Roberts opinion will be in the future. But he has offered an alternative to the ever-expanding use of the commerce power to justify intrusive federal regulations, while still asserting that the federal government does have the power to motivate and behavior through its power to tax.
It is rare to read a Supreme Court opinion that is as surprising as it is thoughtful. It is also worth doing so. Robert's opinion is your weekend read.
“‘[T]he revolution was effected before the war commenced,’ not because of any specifically revolutionary or rebellious spirit but because the inhabitants of the colonies were ‘formed by law into corporations, or bodies politic,’ and possessed ‘the right to assemble … in their town halls, there to deliberate upon the public affairs."
—Hannah Arendt, quoting John Adams, in On Revolution
These remarks represent casual, back-of-the-envelope thoughts. The question they pose is: what would the Occupy movement, or something like it, have to look like in order to succeed in altering the structure of American governance? This assumes that the goal of Occupy is, or should be, to change the structure of American governance, and it assumes an idea of what “the structure of American governance” means, which I will try to explain. My answer to that question—what would Occupy have to look like—can be summed up in a few words: it would have to stop being a movement of the left. As a thought experiment, I propose to imagine an Occupy movement without leftism, and with the goal of changing the structure of governance.
The first thing to work out is wherein the leftism of Occupy actually consists. It does not consist in espousing the interests of the poor—or attacking the interests of the rich. Wealth is neither liberal nor conservative by nature, and wealth in today’s America flows alternately to Republicans and Democrats. Right-wing movements can be populist as well, and garner the support of the economically marginal. Wealth looks after its own interests and treats politics as secondary—which is why the catchphrase of the Occupy movement, “the 99 percent,” theoretically constitutes an appeal to both left and right. It is supposed to be a call to unite along economic rather than political lines. This—“Forget politics and unite for your common economic interest!”—is what I take to be the intended message of Occupy. Those who primarily hear this intended message thus think that Occupy is a new kind of populist movement, having left behind the identity politics of liberalism for a unifying, class-based cause.
But whatever you make of this intended message, there is also an effective message of Occupy, somewhat different from its intended one. The effective message of Occupy proceeds, inevitably, from the demographic composition of the movement. Is it plain for anyone beholding an Occupy rally to see that its membership is drawn from the educated, bourgeois, liberal left; that other contingents (sympathetic Ron Paulites, unionists, etc.) are essentially tokens; and that the members of the real economic underclass are present only on the other side of the fast food counter, selling burritos to hungry protestors. At a march I attended in Chicago, I could stand in one spot and see signs proclaiming dozens of demands: that we go green, withdraw from foreign wars, respect women and minorities, legalize gay marriage, realize that “we are one with the cosmos”—and, oh yes, punish the banks while we’re at it. I happen to agree, at least in some sense, with most of these demands (oneness with the cosmos being one that I would have to find out more about before deciding on), but I was puzzled by their presence. I asked myself: are these particular demands separable from the core economic message? It seems they ought to be, and in theory they are, but here the concrete trumps the theoretical. Get rid of all the people holding those “Regulate x” and “Legalize y” signs at the Occupy rally, and you will have gotten rid of most of the movement. Occupy pursues its universalism as a process of expansion from a preexisting social base. It is like a Facebook group that keeps adding members (in fact, it is that, literally). But this process has natural limits, which Occupy has probably already reached.
So Occupy has its economic message (“the 99 percent”), and it has its social message. The social message is: “Join the left! We liberals have everybody’s best interests at heart, and our concern is with economic justice for the 99 percent.
All you have to do to be part of our movement is to drop your uneducated prejudices—your racism, xenophobia, homophobia, chauvinism, et cetera. Then, once you have become educated liberals, we can move beyond liberalism and fight together for our economic interests!” In the very act of asserting its universalist economic agenda, Occupy reinscribes the particularist demands of the liberal left as prerequisites for participation.
Better than trying to cleanse the economic message of those distracting particularist agendas would be instead to think beyond the economic message itself. What would it mean for Occupy to think at the level of the political? The question of defining the political as such is a point that risks involving Arendt scholars, somewhat uncharacteristically, in long, subtle, almost scholastic discussions; but for our purposes, the answer is easy enough. It would mean to think about constitutions.
A constitution can be a written document embodying the “higher law of the land”—but it need not be. A constitution can just as well consist in an unwritten tradition (as in Great Britain), or, as Arendt reminds us, in an institution such as the Roman senate (or perhaps, in our day, the loya jirga)—a political body that lasts just as long as it is cared for and maintained. (Similarly, a written constitution lasts only as long as people choose to obey it.) A successful revolution—this is the thrust of Arendt’s On Revolution—is one which does not stop at the point of liberating people from oppression, which might be of an economic or a political kind. Occupy aims at economic liberation. A successful revolution, on the other hand, puts its main energy into constitution-making, and results in the creation of lasting institutions, bodies politic that function and endure.
Founding, constituting, instituting: this would be the business of a truly political and, I think, a truly successful Occupy movement. These activities are by nature genuinely public and open to all comers without prerequisite. They might take various concrete forms. Lawrence Lessig advocates holding mock constitutional conventions across the country, with the eventual aim of demonstrating the effectiveness of the process as carried out by ordinary citizens and encouraging state legislatures to invoke Article V of the U.S. constitution and call a new federal convention. Another model would be to simply begin holding unconditional open meetings, publicized and accessible to all, neighborhood by neighborhood, “to deliberate upon the public affairs” until some structure of governance begins to emerge, good leaders come forward, actions are taken. While both these models have their idealistic aspects, both have some realistic aspects as well. We have barely begun to think through the possibilities, but we will eventually need to do the patient work of reconstituting the republic.
-Stephen Haswell Todd
"The alternative to forgiveness, but by no means its opposite, is punishment, and both have in common that they attempt to put an end to something that without interference could go on endlessly. It is therefore quite significant, a structural element in the realm of human affairs, that men are unable to forgive what they cannot punish and that they are unable to punish what has turned out to be unforgivable."
- Hannah Arendt, The Human Condition
George Zimmerman returned to jail last week, two days after his bond was revoked for intentionally deceiving the court about his financial situation. The speed and promptness of this re-incarceration stands in marked contrast to the six weeks that passed between Zimmerman's lethal shooting of Trayvon Martin, and his arrest and arraignment on charges of second-degree murder.
During these six weeks, it was astonishing to many people that given the Sanford Police department’s astonishing failure to investigate the case properly, and the application of Florida’s “Stand Your Ground” defense, Zimmerman was apparently immune to prosecution (even as similar cases produced vastly different outcomes). Troubled by not simply this fact, but also the explicitly and implicitly racialized context of the case, I found myself deeply invested in seeing Zimmerman arrested, tried, and ultimately punished.
And yet at the same time, as a scholar of punishment in the United States, I hold a deep distrust in a broken criminal justice system that has historically been an instrument in the foundation and maintenance of white supremacy as a political system. As put eloquently at the blog, Low End Theory, "[I]n appealing to the power of the police to arrest, and to the power of the courts to sentence Zimmerman, we also make heard a message that we might otherwise hesitate to send: namely, that we believe that these institutions—the police, the courts, the law—are institutions capable of delivering the justice we want."
Even if we assume that these are institutions capable of delivering such justice, they are nevertheless predicated on the idea that justice can be delivered through punishing. If we are to "think what we are doing" in terms of punishment and our desire to achieve justice through it, we might do well to revisit Arendt's account of the relationship between punishment and forgiveness.
In The Human Condition, Arendt positions punishment as an alternative to forgiveness, which in turn is defined as similar to promising and the opposite of vengeance. All actions, Arendt argues, are necessarily unpredictable and irreversible. We cannot know with certainty what will happen as a result of our actions, nor can we undo them. These two uncomfortable facts about action might otherwise paralyze us from doing anything, but thankfully we have the ability to make promises about the uncertain future and to both seek and grant forgiveness, absolving past harms. Were it not for these faculties we would be unable to reconcile our own finite existence with the fundamental plurality of the human condition. Without forgiveness in particular, we would be forever "confined to one single deed from which we could never recover; we would remain the victims of its consequences forever, not unlike the sorcerer's apprentice who lacked the magic formula to break the spell" (237).
Forgiveness can resolve the fact of irreversibility because, Arendt succinctly notes, it is able to put "an end to something that without interference could go on endlessly" (241). This is what distinguishes forgiveness from vengeance. Vengeance is nothing more than the "re-acting against an original trespassing" (240). It is predictable and certain, a “natural” and “automatic reaction.” It cannot be a new action, but only the continuation of the original transgression. Forgiveness, on the other hand, is an action par excellence, done freely rather than necessarily. Forgiveness is unpredictable and uncertain. If forgiveness is forced, it doesn't really count. One can only ask for forgiveness; one can never demand it. As such, forgiveness can allow us to begin anew in the face of a transgression because it is "the only reaction which does not merely re-act but acts anew and unexpectedly, unconditioned by the act which provoked it and therefore freeing from its consequences both the one who forgives and the one who is forgiven" (241).
But what does it mean for punishment to be “the alternative” to this? Can punishment possibly do the same transcendent work for us? If we seek justice through punishment, can such punitive justice ever be the grounds for natality and freedom?
While we typically affirm the justness of punishment by its distinction from vengeance, it nevertheless must be intimately tied to the specific transgression if it is to be justified. Just punishments must "fit" the specific transgression and excessive, cruel, or unusual punishments are thought to be transgressions themselves. Unlike forgiveness, just punishment must be predictable and certain, applied automatically and universally if it is to be effective and non-arbitrary. Moreover, if our desire for punishment itself becomes automatic and mechanical, this too marks punishment as reactive rather than free. When we find ourselves automatically turning to punishment in response to transgressions, we not only signal a belief that some set of punitive institutions can render justice, but we also reveal a desire similar to the desire for vengeance: a continuation of the transgression.
For punishment to do the same work as forgiveness–stepping outside and beyond the logic of the original transgression and starting something new–it would seemingly have to be arbitrary rather than regular, and therefore lose a key part of its character as just punishment. For punishment to be both predictable and also capable of starting something new, it would have to be as difficult to embrace as forgiveness, such that it, like forgiveness, might be able to free both the punished and the punisher from the past transgression.
The heart of the difficulty is that we remain caught between the act and the actor, of the task of responding to the unpredictability and irreversibility of actions, when the subject of either forgiveness or punishment is the actor. In this sense, forgiving and punishing both publicly declare that some particular action belongs to a particular actor. For Arendt, we must remember that there is nothing self-evident or automatic about the authorship of actions. In so far as an action "reveals" an agent, Arendt writes, "this agent is not an author or a producer" in isolation from others (184). Punishing and forgiving do not simply "hold" a person responsible for their actions, but rather, in concert with their actions, they produce them as responsible subjects for those actions. Forgiveness, Arendt insists, is thus "always an eminently personal ... affair in which what was done is forgiven for the sake of who did it" (241). If forgiveness is able to bring an end to the transgression and free both the forgiver and the forgiven by beginning something new, it is because it establishes a new relationship between those persons.
But forgiveness is only able to "undo what one has done though one did not, and could not, have known what he was doing," because of this translation from action to agent. When a specific agent is assigned responsibility (or takes responsibility for an action that has turned out badly), one need not forgive the bad act, but rather the person. Forgiveness produces responsible subjects on both sides of the exchange. But when punishment makes this same translation, as Michel Foucault demonstrates, it has historically done so through producing a kind of criminal subjectivity that on the one hand treats the agent as a free subject (responsible for their bad acts) and on the other hand, as a pathological object (irresponsible and thus in need of incarceration and discipline). The relationship established between persons through punishment is neither symmetrical, novel, nor personal. Instead, it purchases the punisher’s freedom through condemning the other to unfreedom. Where forgiveness is a productive success, punishment is a productive failure.
What Arendt seems to recognize in the paradoxical relationship between punishment and forgiveness is that even if punishment is an "alternative" to forgiveness, it nevertheless cannot be a substitute for it. What does it mean, then, that we find ourselves unable to forgive that which we cannot punish, and that we cannot punish that which is unforgivable? In part, it means that we might require institutions of punishment if we have any hope of being able to choose forgiveness. And our desire for punishment might be, in part, a desire for the possibility of forgiveness. Punishment, even as it might fail to resolve the predicament of action, might be the condition of possibility of that resolution. But to exercise it would be fall into the trap of vengeance and unfreedom.
That George Zimmerman appeared, for six long weeks, to be not simply unpunished but immune from punishment carries the mark of a kind of immunity from responsibility that serves as the "hallmark" of "radical evil" (241). In the face of such immunity for the killing of another human–to find ourselves powerless to act–is to be confronted not simply with a bad action, but with an offense that "transcends the realm of human affairs" (241). As Robert Gooding-Williams notes, the evil of this automatic immunity afforded to Zimmerman is neither accidental or novel in the U.S., but is deeply connected to who Trayvon Martin was: a young black man living in a nation that historically deputized all non-black persons as executors of the federal fugitive slave law. For Zimmerman to be automatically deputized to kill Trayvon Martin–to be unpunishable for Martin’s death–would affirm the persistence of the radical evil of chattel slavery in a new form.
But even if our desire for punishment reflects a desire toward forgiveness, the danger of punishment as vengeance follows as well. The same punitive institutions, in order to be just, push us toward the logic of simple reaction, rather than action, of predictability and necessity, rather than natality and freedom. It is worth noting that there are currently more black men supervised by the criminal justice system than were held in slavery in 1850. Our regular and automated reliance on punishment to do the work of justice might itself be both necessary for justice, and yet also itself a radical evil, masked by the notion that it can do the same work as forgiveness.
-Andrew T. Dilts
"Political institutions, no matter how well or badly designed, depend for continued existence upon acting men; their conservation is achieved by the same means that brought them into being. Independent existence marks the work of art as a product of making; utter dependence upon further acts to keep it in existence marks the state as a product of action."
-Hannah Arendt, ‘What is Freedom?’ in Between Past and Future
Arendt’s polemics against means-end thinking in politics are prominent throughout The Human Condition, and echoed in many of her other writings. Most of her readers have been willing to grant her the dangers of means-end thinking, as expressed in the maxim, “You can’t make an omelette without breaking eggs.” In this regard, Arendt’s words are indeed unanswerable: ‘We are perhaps the first generation which has become fully aware of the murderous consequences inherent in a line of thought that forces one to admit that all means, provided that they are efficient, are permissible and justified to pursue something defined as an end.’ (HC 229) Nonetheless, many readers have wondered whether she does not over-egg the pudding, so to speak, by so emphatically rejecting the political importance of goal-directed thinking and strategic action.
I think this passage from ‘What is Freedom?’ enables us to respond directly to these natural doubts about Arendt’s account of action in The Human Condition. It is an error, Arendt writes, to regard ‘the state or government as a work of art, as a kind of collective masterpiece’ (BPF 153). To endure, the work of art depends only on a certain degree of care. Cleaning and maintenance, or labour in Arendt’s terms, preserve the art-work, which – as its name indicates – resulted from the activity of work. It is quite otherwise with political institutions: ‘their conservation is achieved by the same means that brought them into being’ – that is, by the concerted action of many persons. In other words, we may easily mistake the nature of the goals at stake in politics, by misconstruing them as ends that might be achieved and endure, needing perhaps just a little ‘spit and polish’ from time to time.
Of course, many political acts do aim to bring about a lasting change in the world. In every case, however, this goal ultimately concerns the terms of on-going human relations. Whatever political aim we think of – someone obtaining political office, a change in the law or the foundation of a new state, even something as material as the erection of a monument or a boundary wall: in each case, unless people alter their conduct and relations in terms of these new realities, they will not, in fact, obtain any reality at all. An elected official can find herself powerless; a law can enter the statute books but remain a dead letter; history knows many vain and ineffectual acts of constitution. A monument or wall are slightly different: they are material objects that may, up to a point, endure with no one’s doing anything more about them. But of course, their coming-to-be rests on an agreement to commission them – that is, on action rather than work. And whether they retain any political relevance, whether they keep memories alive or boundaries solid, whether they become tourist attractions or mere rubble – this depends entirely on the opinions and conduct of the people who live alongside them. If many political acts aim at lasting change, then, many others aim to preserve: ‘the conservation [of any political accomplishment] is achieved by the same means that brought [it] into being.’
In other words, although it may be affected by material structures and written documents, the political realm ultimately consists just in how people conduct themselves toward one another. One of Arendt’s reasons for rejecting means-end thinking is that there is no ‘end’ to politics. Our political action can never strictly look to an end-point, for that could be nothing but the end of history itself (‘Understanding and Politics,’ in Essays in Understanding, 320). Again, we may suspect Arendt of hyperbole that misses the importance of goal-directed action in politics. But her deeper point is that political goals and achievements always concern the terms of on-going human relationships. These may be expressed by offices and laws, monuments or public squares; but they cannot be reified. No written document, not even the most solid and brutal wall, constitutes those term. Only continuing and concerted action, animated by particular principles and enacting certain virtues, does this.
There are no ends in politics, then, because political achievements only endure in the form of actions, principles, and relationships. People’s consent and support; the power that arises from these; the continuing preparedness to abide by the relevant terms – these phenomena of human acting and relating are the essential goal of any political initiative. ‘Means’ and ‘end’ are made of the same stuff, defeating any political theory that separates them and spelling ruin from all political practice that seriously regards actions or persons as mere means to an end. None of this is to deny that there are lasting political achievements, or that responsible political action may be directed toward such goals. The point is just that those achievements endure only if kept alive by ‘acting men’ – and, as Arendt would be sure to add, in the stories we tell about them.
-Garrath Williams, Lancaster University, UK
The Human Rights Project at Bard College
Presents Joanne Mariner
"Counterterrorism and Armed Conflict: A Legal Typology"
She will speak tonight, March 19, 2012 at 5PM, in RKC 103 at Bard College.
Joanne Mariner is the Rita Hauser Director of Hunter College's Human Rights Program. Before joining Hunter in January 2011, she spent 15 years at Human Rights Watch, most recently as the director of the organization’s Terrorism and Counterterrorism Program. An expert on counterterrorism laws and policies, Mariner has researched and written about indefinite detention, administrative measures such as “control orders,” criminal prosecutions of suspected terrorists, and government efforts to stem the flow of funds to militant groups. In 2006, she testified before the European Parliament about CIA activities in Europe. She is a member of the Council on Foreign Relations and on the board of advisors of the International Centre for Counter-Terrorism – The Hague and the International Justice Resource Center.
During her tenure at Human Rights Watch, she covered a wide variety of other issues, documenting war crimes in Colombia, Kosovo and Darfur, political violence in Haiti, and prison conditions in Hong Kong, among others. She has published widely on human rights issues, conducted advocacy before the U.N. and regional human rights bodies, and appeared on national media such as ABC News, NPR, BBC World, and C-SPAN. She drafted Human Rights Watch's 1999 submission to the House of Lords in the Pinochet case, and is the author of a ground-breaking 2001 report on prison rape that helped lead to the passage of national legislation to address the problem. In 2005, she received the American Society of International Law's Distinguished Women in International Law award.
Before joining Human Rights Watch, Mariner served as a law clerk to Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. She graduated from Barnard College and received a JD from Yale Law School.
Making History in the Courtroom
From the Soviet Show Trials to the Khmer Rouge Trials
International Conference, Cardozo Law School & NYU Law School, New York, September 16 & 17, 2010
In anticipation of Bard’s upcoming fall conference (“Human Being in an Inhuman Age”) and reflecting upon several related threads in recent blogs (regarding “the wonders of man in the age of simulation”), I’ve found myself thinking about Rabbi Joseph Soleveitchik’s observations concerning the profound split in human nature.
It’s a division Soleveitchik traces back to the two creation stories in the Old Testament. In the first creation story (“Genesis I”), we read: “God created man, in the likeness of God made he him.” Created in God’s likeness, the first Adam stands as both the model and champion of humanity’s instrumental mastery over the earth and all that it contains. (“Fill the earth and subdue it, and have dominion over the fish of the sea, over the fowl of the heaven, and over the beasts, and all over the earth.”) Humankind’s mimetic faculty, in other words, correlates to material mastery. In the second creation story, by contrast, we find no reference either to images or to mastery. Instead, we read: “God breathed into his nostrils the breath of life; and man became a living soul.”
The chief variation in this version consists in the gift of life in the form of God’s breath. With the introduction of this immaterial element, the second creation story shifts focus, along with its normative register. Dominion over the material world gives way to a very different purpose. Placing Adam in the Garden of Eden, God instructs him “to dress it and to keep it.” In other words, mastery now yields to solicitude and conservation. If the first Adam is the master of creation, the second Adam is its self-denying caretaker. In short, if our first nature is instrumental, in the service of command and control, our second is responsive, mindful of that which requires care or service.
Today, it is the spirit of mastery that seems to be on the upswing. Whether it’s the culture of digital gaming, or the likes of Kurzweil’s immortal “spiritual machines,” or in popular films like The Matrix and Dark City, the message we hear is: “you can have it all!”
Dreams and the will to power, desire and reality, converge. Yet, it is this very convergence that may threaten the human – if we think of the “human” in terms of finitude, suffering, fragility, and the inevitability of uncertainty. This human reality is precisely what the will to material mastery (and dreams of digital immortality) deny. In this respect, Genesis I trumps Genesis II. The impulse to control is displacing our capacity for self-demotion in the service of what is other (beyond control). Otherness precludes mastery. Instead, it invites wonder. Wonder is the way we respond to that which goes beyond rational or instrumental control or mastery. This is the sublime. We experience it in the infinite call of nature (“beauty”) and in the infinite demands of the other who stands before us (“the ethical”). Judgment (of the beautiful and the just) begins in wonder, in the face of the real.
Sherry Turkle writes that digital simulation tends to undermine our fealty to the real. If this is so, authentic judgment may have no place in the domain of digital simulation. That claim looms large when law itself migrates to the screen (e.g., in the form of visual evidence and visual argument in court). Over the last decade or so, initially in my book When Law Goes Pop (Chicago: 2000) and more recently in my book, Visualizing Law in the Age of the Digital Baroque: Arabesques & Entanglements (Routledge: forthcoming 2011), this phenomenon has preoccupied my attention. What happens when visual images become the basis for judgment inside the courtroom? How does the image – the amateur documentary, the police surveillance video, the fMRI of brain or heart, or the digital re-enactment of accidents and crimes – affect law’s ongoing quest for fact-based justice? Upon reflection, it becomes plain that judgments based on visual images arise in a different way, with different aesthetic and ethical consequences, than when they rest upon words alone. Nor is visual literacy a given. We need to carefully decode the truth claims of images on the screen, but in order to do that we must first crack the code that constitutes the meaning they provide. And the code changes with the kind of image we see. Regardless, we all tend to be naïve realists when it comes to images. “Seeing is believing.” We tend to look through the screen as if it were a window rather than a construct.
When law lives as an image on the screen, it lives there the way other images do, for good and for ill. Law emulates the cultural constructs of popular entertainment as well as the aesthetics of science. When law lives as an image it, too, takes delight in images of a brain glowing with the beautiful, digitally programmed colors of visual neuroscience. Thus, the images on which legal judgments are based may serve as factual anchors or merely as a source of aesthetic delight, as reliable information or as unmitigated fantasy or illicit desire. So it’s no idle matter to ask, in what reality (if any) does the digital image partake? When fact-based justice rests upon digital simulation its claim to truth may come from a fantasy.
Like an image, law invites us to forget or deny what lies beyond its mimetic (figurative) aspect. Law’s oscillation between aesthetic form (image, figure, copy, text) and moral authority reenacts humanity’s historic vacillation between the two poles of our nature: mastery (Genesis I) and service (Genesis II). In the endless dance of power and meaning, Adam I and Adam II recapitulate the King’s two bodies, the letter and spirit of the law. Law oscillates between these two poles. Law commands, but it wants its commands to be accepted not simply out of fear of punishment, but also, even more importantly, in the belief that it is just. Without good (non-punitive, moral) reasons to accept its coercive power, law remains merely a gunman writ large.
And so, in a visual age like ours, it becomes incumbent upon all of us – jurists and lay people alike – to discern with great care whether or not the screen images we see are capable of bringing justice to mind.