Hannah Arendt considered calling her magnum opus Amor Mundi: Love of the World. Instead, she settled upon The Human Condition. What is most difficult, Arendt writes, is to love the world as it is, with all the evil and suffering in it. And yet she came to do just that. Loving the world means neither uncritical acceptance nor contemptuous rejection. Above all it means the unwavering facing up to and comprehension of that which is.
Every Sunday, The Hannah Arendt Center Amor Mundi Weekly Newsletter will offer our favorite essays and blog posts from around the web. These essays will help you comprehend the world. And learn to love it.
In the New York Times, Roger Berkowitz takes on what he calls the new consensus emerging in responses to the new "Hannah Arendt" movie, that seems to be resolving the vitriolic debates over Arendt's characterization of Adolf Eichmann over the last 50 years. This new consensus holds that Arendt was right in her general claim that many evildoers are normal people, but was wrong about Eichmann in particular. As Christopher Browning summed it up recently in the New York Review of Books, "Arendt grasped an important concept but not the right example." As Berkowitz writes, this new consensus is founded upon "new scholarship on Eichmann's writings and reflections from the 1950's, when he was living amongst a fraternity of former Nazis in Argentina, before Israeli agents captured him and spirited him out of the country and to Israel. Eichmann's writings include an unpublished memoir, "The Others Spoke, Now Will I Speak," and an interview conducted over many months with a Nazi journalist and war criminal, Willem Sassen, which were not released until long after the trial. Eichmann's justification of his actions to Sassen is considered more genuine than his testimony before judges in Jerusalem. In recent decades, scholars have argued that the Sassen interviews show that Arendt was simply wrong in her judgment of Eichmann because she did not have all the facts." As tempting as this new consensus is, it is wrong, Berkowitz argues. Read his full argument here.
Geoff Dyer, flipping through the catalogue of a recent Gary Winograd retrospective at SFMoMA, considers the way that the street photographer presented what he saw: "the pictures didn't look right, they were all skewed and lurchy, random-seeming and wrong. They were, it was felt, an unprovoked assault on the eye... We were accustomed to viewing the world through a set of conventional lenses that Winograd wrenched from our face, making us conscious of how short-sighted we had been." Winograd's still pictures, in other words, act on their viewers, betraying our sense of the world, shifting it out of focus, and therefore revealing it for what it is.
Tony Horwitz uses the upcoming 150th anniversary of Gettysburg to zoom out and consider the changing historical narrative about the American Civil War, in the process offering up an important reminder that history is a living, changing thing: "the 150th anniversary of the Civil War is too narrow a lens through which to view the conflict. We are commemorating the four years of combat that began in 1861 and ended with Union victory in 1865. But Iraq and Afghanistan remind us, yet again, that the aftermath of war matters as much as its initial outcome. Though Confederate armies surrendered in 1865, white Southerners fought on by other means, wearing down a war-weary North that was ambivalent about if not hostile to black equality. Looking backwards, and hitting the pause button at the Gettysburg Address or the passage of the 13th amendment, we see a "good" and successful war for freedom. If we focus instead on the run-up to war, when Lincoln pledged to not interfere with slavery in the South, or pan out to include the 1870s, when the nation abandoned Reconstruction, the story of the Civil War isn't quite so uplifting. "
Computer scientist and writer Jaron Lanier critiques the present digital economy with a close look at the evolving relationship between technology and power. To make his argument for change, he insightfully reinterprets what many consider to be a paradox - that the pairing of technology and power at once enriches and erodes the agency of individual actors. Companies like Google are so valuable, he argues, because they control enormously powerful and expensive servers-he calls them Siren Servers to emphasize their irresistible allure-that allow it to manipulate aggregate activity over time. "While people are rarely forced to accept the influence of Siren Servers in any particular case, on a broad statistical basis it becomes impossible for a population to do anything but acquiesce over time....While no particular Google ad is guaranteed to work, the overall Google ad scheme by definition must work, because of the laws of statistics. Superior computation lets a Siren Server enjoy the magical benefits of reliably manipulating others even though no hand is forced ... We need to experiment; to learn how to nurture a middle class that can thrive even in a highly automated society."
Discussing her recent essay in Harper's, writer Rebecca Makkai talks about her experience of her grandfather, whom she knew as a yoga instructor who lived in Hawaii, who was also the principal author of Hungary's Second Jewish Law, which passed in 1939. At one point, she strikes a particularly Arendtian note: "There's also the fact that it's just very difficult, psychologically, to reconcile the face of a real person with one of the darkest moments of the twentieth century. It's not the same as looking at someone who's personally violent, likely to reach out and hit you. This guy is chopping up papaya on his balcony, telling jokes, and I think we have an instinct to forgive, to see just the best in that person, to see him at just that moment. (The irony being that this is what he and his colleagues failed to do - to see humans in front of them.)"
Roger Berkowitz will be in attendance at the Moviehouse in Millerton for a discussion after the 4:00 pm screening of "Hannah Arendt" and before the 7:00 pm screening.
July 16, 2013
Following the 7:40 pm showing of "Hannah Arendt" at the Quad Cinema on 13th St. in N.Y.C., there will be a Q&A with Roger Berkowitz about the film.
July 21, 2013
Following the 6:00 pm showing of "Hannah Arendt" at Symphony Space on Broadway and 95th St. in N.Y.C., there will be a Q&A with Roger Berkowitz about the film.
The sixth annual fall conference, "Failing Fast" The Educated Citizen in Crisis"
Olin Hall, Bard College
Learn more here.
From the Hannah Arendt Center Blog
This week on the blog, Ian Storey in the Quote of the Week looks at the implications of the recent Supreme Court same sex marriage rulings. Jeff Champlin considers Arendt's reading of Kant, offering a new way to think about judgment. Hannah Arendt's thinking is brought to bear on the Paula Deen scandal. And, for your weekend read, Roger Berkowitz looks at the moral implications of financial inequality.
The re-election of Barack Obama is a milestone. Barack Obama will always be remembered as the first black President of the United States. He will now also be remembered as the first black two-term President, one who was re-elected in spite of nearly 8% unemployment and a feeling of deep unease in society. He is the black President who was re-elected because he seemed, to most Americans, more presidential, more trustworthy, and more likable than his opponent—a white, Mormon, representative of the business elite. Whatever you want to say about this election, it is difficult to deny that the racial politics of the United States have now changed.
President Obama's re-election victory and his distinguished service have made the country a better place. The dream of America as a land of equality and the dream that our people will not be judged by the color of their skin but by the content of their character—these dreams, while not realized, are closer to being realized today because of Barack Obama's presidency and his re-election.
There are some who don't see it that way. There is a map going around comparing the 2012 electoral college vote to the civil war map. It is striking, and it shows with pictorial clarity, that the Republic strongholds today are nearly identically matched with the states of the Confederacy 150 years ago. For some, this is an indictment not only of the Republican Party, but also of the United States. The argument made on Facebook and beyond is that the country is still deeply divided racially; that this election brought out the deep-seated racism underlying the country.
There is also the fact that Twitter apparently was awash in profoundly racist commentary after the election. According to the blog Floating Sheep, the worst of the racist commentary was concentrated in states that Mitt Romney won. Mississippi and Alabama were the states with the largest number of racist tweets on election night.
This could be evidence of a real racial problem. But I don't see it that way. Of course there are some people who are less trusting of a black President. But around the country, voters approved gay marriage, Latinos voted in record numbers, women swept into office, and we re-elected a black President to a second term. To see this election as a confirmation of racist intransigence is overly pessimistic.
Yes, Mitt Romney won the white vote, but he received 59% of the white vote; not exactly a landslide given that the country has real problems. Among white voters over 65, Romney received 61% of the vote. But among white voters under 29, he received only 51% of the vote, a sure sign of things to come. And the white vote was only 72% of the national vote, a record low. As David Simon writes in "Barack Obama and the Death of Normal":
The country is changing. And this may be the last election in which anyone but a fool tries to play — on a national level, at least — the cards of racial exclusion, of immigrant fear, of the patronization of women and hegemony over their bodies, of self-righteous discrimination against homosexuals. ... This election marks a moment in which the racial and social hierarchy of America is upended forever. No longer will it mean more politically to be a white male than to be anything else. Evolve, or don’t. Swallow your resentments, or don’t. But the votes are going to be counted, more of them with each election. Arizona will soon be in play. And in a few cycles, even Texas. And those wishing to hold national office in these United States will find it increasingly useless to argue for normal, to attempt to play one minority against each other, to turn pluralities against the feared “other” of gays, or blacks, or immigrants, or, incredibly in this election cycle, our very wives and lovers and daughters, fellow citizens who demand to control their own bodies.
This is all good news.
And yet, we should not celebrate too loudly. Race still matters in these United States. How it does and why is changing, and will continue to change.
Amidst the progress, one fact remains stubbornly true: black Americans still lag behind white Americans in metrics of education, employment, income, and success. Nearly 5% of black men are in prison in the United States, compared to 1.8% of Hispanic men and .7% of white men.
More than 70% of babies born to black mothers are born out-of-wedlock. When looked at honestly, the problem with race in this country remains stark. It is too big a problem to be swept under the carpet.
And yet that is what is happening. The Obama Presidency has not been kind to blacks. Here is how Frederick C. Harris puts it in the New York Times before the election:
[F]or those who had seen in President Obama’s election the culmination of four centuries of black hopes and aspirations and the realization of the Rev. Dr. Martin Luther King Jr.’s vision of a “beloved community,” the last four years must be reckoned a disappointment. Whether it ends in 2013 or 2017, the Obama presidency has already marked the decline, rather than the pinnacle, of a political vision centered on challenging racial inequality. The tragedy is that black elites — from intellectuals and civil rights leaders to politicians and clergy members — have acquiesced to this decline, seeing it as the necessary price for the pride and satisfaction of having a black family in the White House.
Walter Russell Mead makes a similar point in a rich essay published in The American Interest over the summer. He writes:
Many hoped that the election of the first African-American President of the United States meant a decisive turn in the long and troubled history of race relations in the United States. And indeed President Obama’s election was a signal success for the American racial settlement of the 1970s. But at the moment of its greatest success, that settlement—call it the Compromise of 1977—was beginning to unravel, as evidenced by the fact that President Obama’s nearly four years in office to date have witnessed decades of economic progress and rising political power in black America shifting into reverse.
The housing bubble and its crash have disproportionately impacted black and Latino Americans, who most recently achieved the dream of home ownership. And the loss of jobs in manufacturing and public unions have disproportionately impacted blacks, since these were important routes through which black Americans have entered the middle class. The results for blacks in this country are harrowing. As Mead reports:
Black unemployment under President Obama hit 16.2 percent (June 2011). The median net worth of black households collapsed, falling by 59 percent between 2005 and 2010, wiping out twenty years of progress and plunging to levels not seen since Ronald Reagan’s first term. By comparison, the net worth of white households only fell by 18 percent from 2005 to 2010. The gap between black and white net worth doubled during the Great Recession, and the “wealth gap” between the races rose; the median white household had 22 times the net worth of the median black household. Moreover, the damage to black prospects will not soon be repaired. Indeed, if we now (as seems likely) face a prolonged period of austerity and restructuring in government, there will be fewer job openings and stagnant or falling wages and benefits in the middle-class occupations where blacks have enjoyed the greatest success.
What is more, those national statistics like unemployment, exclude inmates in our nation's penitentiaries. Were we to add the 5% of black men in prison into those cumulative statistics, the situation would look even more perilous.
Mead's essay, The Last Compromise, is essential reading. He argues that race relations in America are marked by three main historical compromises. The first compromise, in 1787, is well known. Including the counting of slaves as three fifths of a citizen and the granting of slave states equal representation in the Senate, this original compromise allowed the country to emerge as a democracy without dealing with the obvious scar of slavery.
The Civil War led to what Mead calls the second major compromise on Race that moved the nation forward without actually granting rights to blacks. In the compromise of 1877,
the white South accepted the results of the Civil War, acknowledging that slavery, secession and the quest for sectional equality were all at an end. The South would live peacefully and ultimately patriotically in a union dominated by Northern capitalists. White Southerners might complain about Northern banks and plutocrats (and they did for decades), but they would not take up arms. For its part, the North agreed to ignore some inconvenient constitutional amendments of the Reconstruction period, allowing each Southern state to manage race relations as its white voters saw fit. In particular, the North allowed the South to deny blacks the vote while counting them for representational purposes.
As Mead writes, this compromise was a disaster for blacks. And yet, there was some progress. Denied the vote and made second-class citizens in much of the country, and faced with continued violence and oppression, blacks could, nevertheless, work to create a small and thriving middle class.
The compromise of 1877 last about 100 years until, in the midst of the Civil Rights Movement, a new compromise emerged. This compromise of 1977 brought with it desegregation of public institutions, affirmative action, the entry of blacks into government and civil service, voting rights, and the chance for success. But it came with a dark side. As Mead summarizes:
At its core, the compromise offered blacks unprecedented economic opportunity and social equality, but it also allowed for the stern and unrelenting repression of inner-city lawlessness and crime. Blacks who were ready, willing and able to participate in the American system found an open door and a favoring wind; blacks who for whatever reason were unable or unwilling to “play by the rules” faced long terms in prisons where gang violence and rape were routine.
The election of President Obama shows the promise and the limits of our current state of race relations. On the one hand, black Americans in the middle and upper classes live in a society that if it is not color blind, is at least open to success, entrepreneurship, and leadership by black Americans. On the other hand, the misery of the black poor continues, largely invisible. This is not simply a racial matter, since it is poverty in general, and not only black poverty, that is ignored. There are many impoverished white people. But it would be dishonest to deny the racial components of poverty.
The 2012 election is a milestone. It proves that 2008 was not a fluke, and it shows that most of the United States will vote for the candidate they feel is better, no matter that candidate's race. This is an enormous achievement and one to celebrate. In many ways the future looks bright. But that is no excuse to refuse an honest confrontation of the problems many black Americans continue to have. President Obama has largely avoided the issue of race, for obvious reasons. It is time to insist that we bring the issue to light.
One good way to begin is to read The Last Compromise by Walter Russell Mead. It is well worth the price of subscription to The American Interest. It is your weekend read.
African Americans were imprisoned at roughly four times the rate of whites in the U.S. at the dawn of the civil rights era. Today it is seven times. How can we explain this persistent—indeed, widening—disparity in rates of incarceration? Are contemporary patterns of imprisonment merely the incidental byproduct of economic restructuring, intensive policing, and stiffer sentencing guidelines? Or are they rather the latest development in a lengthy history of American racial conflict and subjugation? Does the disproportionate incarceration of African Americans even represent the continuation of chattel slavery and state-sanctioned segregation?
These questions tread fraught moral and political terrain, and they invite the construction of overdrawn parallels and facile analogies. After all, present-day African American inmates are not born into bondage in the same way slaves were, and racial hierarchy today is not legally codified in the fashion it was under slavery and Jim Crow. Nevertheless, a few scholars have recently insisted that American penal institutions play a decisive role in long-running patterns of racial formation and social control.
Probably the most prominent work in this school of thought is Michelle Alexander’s The New Jim Crow (2010), which offers a sweeping indictment of the War on Drugs and its impact on African American men. Another less acclaimed but finer-grained study is that of historian Robert Perkinson, whose book Texas Tough: The Rise of America’s Prison Empire (2010) traces the history of incarceration in one of the bastions of the American South.
I intend to devote my next few contributions to the Arendt Center blog to Perkinson’s book, which offers a bracing, accessible, and generally well argued account of American criminal justice. His work, while not equating enslavement and imprisonment in any superficial manner, goes a long way toward demonstrating the deep connections between slavery and imprisonment.
In Texas’s case, these connections are rooted in the state’s long-standing commitment to forced labor as the essence of incarceration. Whereas northern penal institutions have often sought to reclaim offenders through confinement and discipline, Texas’s penal institutions have focused on putting prisoners to work for revenue-generating purposes and paid little heed to reformist ideals of rehabilitation. In the 1850s, for example, the state penitentiary at Huntsville specialized in the for-profit production of cotton and wool fabrics, and during the Civil War its inmates became the chief textile manufacturers and suppliers for the Confederate army. Up to this point, the vast majority of the state’s inmates were white, given that the state’s 1848 penal code prescribed whipping and other forms of sanguinary punishment, but not incarceration, for slaves and “free persons of color.”
With emancipation in 1865, however, Texas prison demographics shifted dramatically as increasing numbers of former slaves were sentenced to prison terms, often for minor offenses on the basis of flimsy evidence. These black convicts—and their Mexican and Native American counterparts—were rarely detained in the state’s main penitentiaries; instead, they were deployed on public works projects or agricultural plantations around the state. (American popular imagery of chain gangs and hoe squads, epitomized in films like O Brother, Where Art Thou?, hearkens back to the Reconstruction era in Texas and other southern states.) Impressed and largely nonwhite convict labor thereby played a key role in the construction of the state’s railroads and other infrastructure, and it contributed significantly to the lucrative production of cotton and sugar. Indeed, most of the plantations on which these prisoners labored had been worked by slaves only a few years before.
This use of involuntary labor reached its apotheosis in “convict leasing,” the term used in the later nineteenth century to describe the state’s hiring out of imprisoned workers to private contractors. These leases were initially concluded on a piecemeal basis, but in 1871 one Galveston firm, Ward, Dewey & Co., paid $325,000 to take possession of the entire Texas penal system and every state prisoner, more than half of whom were former slaves. (The proliferation of for-profit prisons in the past few decades is thus not the first time that American carceral institutions have been privatized.) Although Ward, Dewey & Co. agreed to treat “all convicts with care and humanity,” the living and working conditions they provided shocked many state supervisors and other observers. At least one of them regarded the company’s management as “a system of vilest slavery” (Perkinson, p. 93).
Yet even when the Texas government regained full control of its penal system in 1883, it did not abandon the pursuit of profit as much as bring it under state control. Among the most significant steps, Texas established its own state-run prison farms, which did not merely grow cash crops with unpaid convict labor, but carried on work traditions that bore striking resemblances to the era of convict leasing and, ultimately, plantation slavery. State-run farms remained a mainstay of the Texas penal system as late as the 1970s, and even as periodic reforms led to modest (if often short-lived) improvements in living conditions, they continued to be organized in starkly racialized terms: largely black prisoners labored involuntarily under the supervision of armed, largely white prison personnel.
Perkinson’s careful attention to the nineteenth century brings the phenomena of slavery and imprisonment into close proximity, and it demonstrates how early forms of incarceration in Texas bore the imprint of the South’s “peculiar institution.” It thereby sets the stage for the developments in the twentieth century, when Texas became one of the nation’s leaders—and models—in matters of mass incarceration. I shall take up the threads of this narrative in my next blog, which will also consider some of the implications of imprisonment for our understandings of civil liberty and democracy.
"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
The copyright conflict between the internet community and the entertainment industry escalated recently when some of the most visited sites on the web flexed their muscle by spearheading a campaign to kill the two bills which started the trouble. The bills have been shelved, thanks to the participation of most of the major social media websites and search engines in a twenty-four-hour blackout (including Wikipedia, Google, Reddit, Tumblr, Mozilla, among many others) – but what does such a “victory” mean?
Just days after most support had been pulled from the bills in both houses, the founder of file-sharing site Megaupload, Kim Dotcom (born Kim Schmitz, but had his name legally changed around 2005), was arrested in New Zealand and is facing extradition to the US due to alleged piracy charges, along with at least three of his closest associates. This may come as a surprise to those who argued that these bills were necessary to stop intellectual property theft. As Bill Keller explains in a recent Op-Ed piece in the Times, “The central purpose of the legislation — rather lost in the rhetorical cross fire and press coverage — was to extend the copyright laws that already protect content creators in the U.S. to offshore havens where the most egregious pirates have set up shop.” And yet, even without the new laws, Dotcom and his cohorts were arrested on US government orders.
It is helpful to go back to basics and try to understand the thinking behind the protection of intellectual property. Why, in other words, is it necessary to arrest someone like Dotcom, who merely makes content available to a wide and interested audience?
One attempt to answer that question is Mark Helprin's Digital Barbarism, an impassioned, literary, and philosophical defense of copyright on the internet. Known best for his novels, most memorably Winter's Tale, Helprin puts forth a philosophical and humanist argument in favor of copyright. At root, copyright is necessary as the “guarantor” or “coefficient” of liberty itself.
That property is at the essence of liberty is an idea that has its roots deep in liberal thinking. Property, from the root proper or propriety, is what is right and most my own. Who I am includes the character I possess, what defines me. This includes as well the way I live and the things I choose to own. Ownership, in other words, concerns what is my own, and who I am.
Our love for and defense for our property is not simply economic. It is a matter of identity and existence. Pace Helprin:
Property is to be defended proudly rather than disavowed with shame. Even if for some it is only a matter of luck or birth, for the vast majority it is the store of sacrifice, time, effort, and even, sometimes, love. It is, despite the privileged inexperience of some who do not understand, an all-too-accurate index of liberty and life. To trifle with it is to trifle with someone's existence, and as anyone who tries will find out, this is not so easy. Nor has it ever been. Nor should it ever be.
The copyright battle is less about economics, in Helprin's telling, than about freedom. Unlike some proponents of free market ideology, he does not advocate the absence of limits on freedom. In his words (which remind us of Helprin's artistry):
Nothing is entirely free, not even an electron (hardly an electron) or an atom floating in the inaccurately named vacuum of space. Everything that exists is subject to the pull or constraint of something else.
The point is not to reject all limits on property, but to insist upon a balance—one that Helprin thinks today is too far weighted toward disrespect for property.
He makes his argument in the context of taxation. Opposing both extreme positions of liberals (who find it cruel and inexplicable that someone would want to set limits before every mouth is fed and every cry comforted") and conservatives (who "find it deeply alarming that anyone can fail to recognize the danger of pressing ahead in the absence of limits"), Helprin insists that we at least honestly recognize that taxation has a non-material cost: taxation, to some extent, "extinguishes liberty."
In other words, taking someone's property is, in itself, wrong. There may be reason's do to so, and there is no absolute right to one's property. Society demands limits and some takings. But such decisions should be made with an appreciation that these takings are meaningful intrusions on individual liberty. This is Helprin's core point and it is one that I believe is rarely made and even more rarely considered.
To illustrate his claim about the imposition involved in all takings, Helprin calls on the common (and these days volatile) theme of income tax. Taxes, while necessary, are infringements on freedom (not simply on income). If the state compels Cyril “to surrender half his income” in an effort to provide for those who cannot provide for themselves, then Cyril is “laboring for the state during half his working life,” and not for himself. Helprin likens such disenfranchisement to slavery. This seems excessive. As far as I can tell, Helprin employs the analogy because he wants to shock us into seeing just how we have come to naturally accept the fact that it is normal for the majority to take property from the minority. In his account, just as the slave owner “presumes that the labor of his slaves belongs to him…that whatever they make is rightfully his,” so does the state, when it requires its citizens to pay a tax on the income generated by their own labor, operate under the assumption that it is entitled to decide the ultimate use of such labor.
The comparison of taxation to slavery is over the top, sure. But there is a point Helprin makes that is important:
Anyone who blithely recommends expropriation as a means of "economic justice" should first divest himself of most of what he has and give it to those who have less — and there are certain to be those who have less and are greatly afflicted for it. We tend to look up rather than at ourselves when surrendering to such passions of righteousness. The assault on copyright is a species of this, based on the infantile presumption that a feeling of justice and indignation gives one a right to the work, property, and time (those are very often significantly equivalent) of others, and that this, whether harbored at the ready or expressed in action, is noble and fair.
Which is why the question of Kim Dotcom’s arrest is central. According to Helprin’s explanation, Dotcom's websites and others like them blithely engage not just in economic exploitation of writers and artists, but do so without seriously considering the injustice involved in their depriving others of their sense of ownership in what they create. One can disagree. To do so, you must think that our societal right to read your essay or hear your song trumps your right to sell that song (or not) to whomever you wish.
For your weekend read, buy a copy of Helprin's Digital Barbarism, and give it a read. Or, read a chapter that Helprin has, freely, made available on the web.